RAMATHAL AND ORS.  versus K. RAJAMANI (DEAD) THROUGH LRS. AND ANR.
[2023] 11 S.C.R. 348, Supreme Court of India, 2023
Outcome: Appeal(s) allowed (Granted)
Segment: Issues
CASE DETAILS
RAMATHAL AND ORS. 
v.
K. RAJAMANI (DEAD) THROUGH LRS. AND ANR. 
(Civil Appeal No. 8830 of 2012)
AUGUST 17, 2023
[VIKRAM NATH AND AHSANUDDIN AMANULLAH, JJ.]
HEADNOTES
Issue for consideration: The view of the High Court that before the 
Trial Court, there was neither any pleading nor any issue was framed with 
regard to the plea of non est factum and as such the First Appellate Court 
committed an error in determining the said plea in favour of the plaintiﬀ s 
– Consequently, suit of the plaintiﬀ  was dismissed.
Suit – Plaintiﬀ  instituted suit for declaration as the absolute owners 
of the suit properties and also for consequential relief of permanent 
injunction on the ground that there was misrepresentation in the 
General Power of Attorney – Dismissed by trial Court – First Appellate 
Court decided in favour of plaintiﬀ s – The High Court proceeded to 
record a ﬁ nding that there was neither any pleading nor any issue 
framed regarding the plea of non est factum and set aside the judgment 
of the First Appellate Court – Appeal preferred by plaintiﬀ s before the 
Supreme Court:
Held: It is speciﬁ cally averred in the plaint that only intention for 
executing the Power of Attorney in favour of defendant No.2 was for 
developing the property in question into smaller plots and to get necessary 
approvals for the same from the relevant authorities – It is clearly stated in 
plaint that the plaintiﬀ s were illiterate and had no means to get the above 
exercise
carried out and as the defendant No.2 was well versed in dealing 
with Government Authorities, he could have helped them in developing the 
plots – Suit was instituted when plaintiﬀ  realized that the defendant had 
two additional clauses incorporated authorizing him to sell, gift, settle the 
plots in question and also to execute wherever necessary transfer of Patta 
[2023] 11 S.C.R. 348 : 2023 INSC 737
348
349
Deeds – Plaintiﬀ  never intended the same – Issues framed by the trial Court 
(i) whether the plaintiﬀ s are absolute owner of the suit property and (ii) 
whether the plaintiﬀ s are in possession and enjoyment of the suit property 
would cover issue of non est factum – From a perusal of the plaint, it is 
more than clear that the plea of non est factum was well pleaded, in clear 
and strict terms – The First Appellate Court had appreciated and analyzed 
the evidence on record, both oral and documentary, to record a ﬁ nding that 
plea of non est factum was proved – Judgment of the High Court set aside 
and that of the First Appellate Court maintained. [Paras 16, 25, 26 to 29]
Maxim – Non est factum – When plea can be taken:
Held: A plea of non est factum can be taken by an executor or signatory 
of the deed to plead that the said document is invalid as its executor/signatory 
was mistaken about its character at the time of executing/signing it – It is 
a latin maxim which literally means “it is not the deed” – A plea of non est 
factum is a defence available in Contract Law allowing a person to escape 
the eﬀ ect of a document which she/he may have executed/signed. [Para 17]
Maxim – Non est factum – For successful plea of non-est factum 
requires:
Held: (i) The person pleading non est factum must belong to “class 
of persons, who through no fault of their own, are unable to have any 
understanding of the purpose of the particular document because of 
blindness, illiteracy
or some other disability” – The disability must be one 
requiring the reliance on others for advice as to what they are signing; (ii) 
“The signatory must have made a fundamental mistake as to the nature of 
the contents of the document being signed”, including its practical eﬀ ects; 
(iii) The document must have been radically diﬀ erent from one intended to 
be signed. [Para 19]
LIST OF CITATIONS AND OTHER REFERENCES
Smt. Bismillah vs. Janeshwar Prasad and Others (1990) 1 SCC 207; 
Bhagwati Prasad vs. Chandramaul AIR 1966 SC 735: [1966] SCR 286; 
Bachhaj Nahar v. Nilima Mandal and Another (2008) 17 SCC 491 – relied 
on.
Sri Sinna Ramunuja Jeer and Others vs. Sri Ranga Ramanuja Jeer and 
Another (1962) 2 SCR 509; Randhir Kaur vs. Prithvi Pal Singh and Others 
RAMATHAL AND ORS. v. K. RAJAMANI (DEAD) 
THROUGH LRS. AND ANR.
350
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
(2019) 17 SCC 71; Prem Singh & Ors. vs. Birbal & Ors. 2006 (5) SCC 
353 : [2006] 1 Suppl. SCR 692; Pentakota Satyanarayana vs. Pentakota 
Seetharatnam 2005 (8) SCC 67 : [2005] 3 Suppl. SCR 719; ITC Limited vs. 
State of Uttar Pradesh & Ors. 2011 (7) SCC 493 : [2011] 7 SCR 66; M.M.S. 
Investments, Madurai & Ors. Vs. V. Veerappan & Ors. 2007 (9) SCC 660 
: [2007] 5 SCR 32; I.S. Sikandar (dead) by LRs vs. K. Subramani & Ors. 
2013 (15) SCC 27 : [2013] 17 SCR 24; C. Chandramohan vs. Sengottaiyan 
(Dead) by LRs & Ors. 2000 (1) SCC 451 : [2000] 1 SCR 16; Cauvery Coﬀ ee 
Traders, Mangalore vs. Hornor Resources (International) Company Limited 
2011 (10) SCC 420 : [2011] 12 SCR 473; Taherakhatoon (D) by LRs. vs. 
Salambin Mohammed 1999 (2) SCC 635 : [1999] 1 SCR 901; Ningawwa 
v. Byrappa AIR 1968 SC 956 : [1968] SCR 797 – referred to.
Saunders v. Anglia Building Society (1970) 3 ALL ER 961 – referred to.
OTHER CASE DETAILS INCLUDING IMPUGNED 
ORDER AND APPEARANCES
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 8830 of 2012.
From the Judgment and Order dated 21.11.2008 of the High Court of 
Madras in SA No. 648 of 2002.
Appearances:
Jayanth Muth Raj, Sr. Adv., Nishe Rajen Shonker, Mrs. Malavika 
Jayanth, Advs. for the Appellants.
K. K. Mani, Ms. T. Archana, Rajeev Gupta, Vinay Rajput, Advs. for 
the Respondents.
JUDGMENT / ORDER OF THE SUPREME COURT
JUDGMENT
VIKRAM NATH, J.
1. The present appeal by the plaintiﬀ s assails the correctness of
the 
judgment and order dated 21.11.2008 passed by the Madurai Bench of 
the Madras High Court, whereby Second Appeal No. 648 of 2002 titled 
“N.Krishnasamy Mudaliar (D) and Ors. Vs. Ramathal and Ors.” was
351
allowed, after setting aside the judgement of the First Appellate Court, the 
order of the Trial Court was restored, and the suit of the plaintiﬀ  (present 
appellant) was dismissed.
2. The dispute relates to 110 cents of land at No. 95, East Ayakudi 
Village, Palani, Tamil Nadu which originally belonged to the ﬁ rst plaintiﬀ , 
Natchimuthu. He had executed a gift deed in favour of his ﬁ rst wife, Ramathal 
in respect of 50 cents of land. The suit was ﬁ led jointly by Natchimuthu and 
his wife Ramathal, described as plaintiﬀ  nos. 1 and 2, respectively. 
3. In the same village Ayakudi, one Krishnasamy and his two sons, 
Rajamani and Sakthivelu, were also residing and were well known to the 
plaintiﬀ s. The plaintiﬀ s, being illiterate and having no other source of 
income, requested Rajamani to develop the land in suit into several plots 
after obtaining necessary permissions from the Government oﬃ  cials so that 
the said plots could be sold to generate revenue for the plaintiﬀ s. In lieu of 
this service, they oﬀ ered ﬁ ve cents of land as consideration to Rajamani. 
4. A Power of Attorney dated 05.09.1986 was executed in favour of 
Rajamani by the plaintiﬀ s for the aforesaid purpose. The said deed was 
produced before the Registering Authority on 17.09.1986 and was registered 
on 19.09.1986. According to the plaintiﬀ s, Rajamani taking advantage 
of their illiteracy and simplicity, in addition to the purpose for which the 
plaintiﬀ s had requested for executing the
Power of Attorney, additionally 
got two more clauses added to it. Firstly, the Attorney would have the right 
to sell the property, and secondly, to make endorsements in the required 
documents for Patta transfer. 
5. On the date, the Power of Attorney was registered i.e.19.09.1986, 
Rajamani executed two sale deeds: one in favour of his father, Krishnasamy 
for 50 cents of land, and the other in favour of his younger brother, 
Sakthivelu for 50 cents of land. Both sale deeds were undervalued, as the 
sale consideration was shown to be Rs. 6,000/- per sale deed, and due stamp 
duty was paid thereon. However, as per the guideline value of the property, 
the ﬁ rst sale ought to have been valued at Rs. 15,000/- and the second 
sale at Rs. 7,500/-. In view of the deﬁ ciency of stamp duty on account of 
undervaluation, both documents were impounded by the authorities.
6. Sometime in 1988, Krishnasamy and his two sons, Rajamani and 
Sakthivelu, started interfering with possession of the land in suit. It was 
RAMATHAL AND ORS. v. K. RAJAMANI (DEAD) 
THROUGH LRS. AND ANR. [VIKRAM NATH, J.]
352
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
only then that the plaintiﬀ s came to know about the two sale deeds executed 
by Rajamani in favour of his father and brother. They also threatened the 
plaintiﬀ s of initiating criminal proceedings against them. On 25.04.1991, 
the plaintiﬀ s obtained a certiﬁ ed copy of the Power of Attorney, and soon 
thereafter, the plaintiﬀ s came to know of the mischief committed by 
Rajamani for incorporating the power to sell, create mortgage, execute 
sale deed, settlement deed, gift deed, exchange deed and also to make 
endorsements for Patta transfer, and if needed, to divide the suit property 
into plots after obtaining layout approval from the concerned authority and 
to take further action thereof. 
7. The plaintiﬀ s were thus compelled to initiate legal proceedings. They 
issued a legal notice through their counsel on 29.04.1991, which despite 
being served, no reply was given. In October 1991, the plaintiﬀ s instituted 
a suit for declaration as the absolute owners of the suit properties and also 
for consequential relief of permanent injunction on the ground that there was 
misrepresentation in the General Power of Attorney. This was registered as 
Original Suit No. 839 of 1991 in the Court of the District Munsiﬀ  at Palani. 
Krishnasamy, the father, was arraigned as defendant no. 1, Rajamani, the 
Attorney, was arraigned as defendant no. 2 and Sakthivelu was arraigned as 
defendant no. 3. Defendant nos. 1 and 2 only ﬁ led their
written statements 
while Defendant no. 3 chose not to contest the suit, and no written statement 
was ﬁ led on his behalf. 
8. Both the parties led evidence, both documentary as well as oral. 
The Trial Court, vide judgment and order dated 06.01.1998, dismissed the 
suit relying upon the contents of the Power of Attorney to be genuine. It did 
not accept the plea of the plaintiﬀ s that defendant no. 2 had misrepresented 
and played mischief by incorporating the power to sell and other clauses 
of transfer of Patta etc., which according to the plaintiﬀ s they had never 
authorised.
9. The plaintiﬀ s preferred a First Appeal before the Sub-Court at Palani 
which was registered as A.S. No. 28 of 1998. During the pendency of the 
appeal, the ﬁ rst plaintiﬀ  died and his legal heirs were brought on record. The 
First Appellate Court framed points for consideration including the point 
of non est factum and after due analysis and appreciation of the evidence, 
both oral and documentary, it came to the conclusion, that the contents of 
Power of Attorney had been fraudulently incorporated without any due
353
authorisation only to deprive plaintiﬀ s of their valuable rights. The appeal 
was allowed and the suit was decreed. The First Appellate Court recorded 
following ﬁ ndings:
(i). 
The contents of the two sale deeds executed by the Attorney 
on the day of the registration of the Power of Attorney is a 
relevant fact against the defendants and showed their conduct 
to be malicious. 
(ii). 
The sale deeds had been undervalued and did not reﬂ ect the 
market value. Even the guideline value was not reﬂ ected as a 
result of which the sale deeds were impounded. 
(iii). 
The deﬁ cient stamp duty was paid in 1995 and 1997 to get the 
sale deeds regularised and be released, which was after nine 
and eleven years respectively from the date of its execution. 
This was also much later than institution of the suit by the 
plaintiﬀ s in 1991.
(iv). 
The sale consideration reﬂ ected in the sale deeds was also 
much less than the guideline value, and even if it was paid to 
the plaintiﬀ s, it was not a reasonable consideration for the land 
in suit. 
(v). 
The defendants had taken undue advantage of their illiteracy 
and resourcefulness to deprive the plaintiﬀ s of their valuable 
land, they being illiterate and simple rustic villagers.
(vi). 
The revenue documents produced by the defendants were from 
a period, post institution of the civil suit. 
(vii). The original Power of Attorney was never produced, and it 
was alleged that the same had been lost.
(viii). The defendants failed to
prove that the plaintiﬀ s knowingly 
and willingly, having understood the contents of the Power of 
Attorney, had executed the same.
(ix). 
The principle of non est factum was decided in favour of the 
plaintiﬀ s.
10. The judgement and order of the First Appellate Court dated 
13.02.2002 was carried in Second Appeal before the High Court and was 
registered as Second Appeal No.648 of 2002. The High Court framed the 
RAMATHAL AND ORS. v. K. RAJAMANI (DEAD) 
THROUGH LRS. AND ANR. [VIKRAM NATH, J.]
354
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
following question of law: “Whether the ﬁ rst appellate court, in the absence 
of any issue having been framed by the trial court or by itself and also in the 
absence of relevant pleadings concerning the plea of non est factum relating 
to Ex. A1, was justiﬁ ed in giving a ﬁ nding in favour of the plaintiﬀ s?” and 
decided the same in favour of the defendants.
11. The High Court was of the view that before the Trial Court, there 
was neither any pleading nor any issue was framed with regard to the plea 
of non est factum and as such the First Appellate Court committed an error 
in determining the said plea in favour of the plaintiﬀ s. The High Court, 
vide judgement dated 21.11.2008, accordingly allowed the appeal, and after 
setting aside the judgement of the First Appellate Court, restored the order 
of the Trial Court and dismissed the suit. Against the said order, the present 
appeal has been preferred by the plaintiﬀ s.
12. We have heard learned counsel for the parties and perused the 
material on record. 
13. The submissions of the learned counsel for the appellants are brieﬂ y 
summarised as under:
(i). 
The case of the plaintiﬀ s, from the very beginning, was to the 
eﬀ ect that they had only executed the Power of Attorney for 
the limited purpose of development of the land by dividing it 
into smaller plots and to obtain necessary permissions from 
the authorities. 
(ii). 
They had never executed the Power of Attorney
authorizing 
the defendant no. 2 to sell, to create mortgage, to execute gift 
deed, settle the land in dispute or to sign the transfer of grant of 
Patta. Such clauses had been mischievously and surreptitiously 
added by the defendant no. 2 taking undue advantage of the 
simplicity and illiteracy of the plaintiﬀ s.
(iii). 
The plaintiﬀ s never handed over the possession of the land in 
dispute and throughout continued in possession of the same.
(iv). 
The conduct of the Attorney, defendant no. 2, in transferring the 
land to his own father and brother on the very day the Power 
of Attorney was registered shows that there was malice on 
the part of the Attorney. The defendant no. 2 was apparently
355
apprehensive that in case if the plaintiﬀ s came to know of the 
contents of the Power of Attorney, which authorises defendant 
no. 2 to sell the land, they would have cancelled it. So, without 
taking any chances as any delay would frustrate his malicious 
intent, he executed the sale deed in favour of his own father 
and brother for a nominal amount. 
(v). 
The First Appellate Court had rightly determined the plea of 
non est factum as one of the points of consideration, which 
was based upon the pleadings and did not require any speciﬁ c 
issue to be framed but the same would be squarely covered as 
part of the issues already framed.
(vi). 
The High Court fell in error in holding that there was no 
pleading, which is contrary to the record.
(vii). Reliance has been placed upon the following judgements by 
learned counsel for the appellant in support of his submissions:
a) 
Smt. Bismillah vs. Janeshwar Prasad and Others1,
b) Sri Sinna Ramunuja Jeer and Others vs. Sri Ranga 
Ramanuja Jeer and Another2,
c) 
Randhir Kaur vs. Prithvi Pal Singh and Others3.
14. On the other hand, submissions advanced on behalf of the 
respondents are summarised as under:
(i).  
The plaintiﬀ s, having admitted the execution of the Power of 
Attorney, its contents could not be disputed.
(ii). 
The plaintiﬀ s, having pleaded that they acquired knowledge 
of the Power of Attorney in 1988, did not take any action for 
either revoking the Power of Attorney or for cancellation of 
the sale deed,
or any criminal action, and it was almost after 
three years that the suit was instituted in the year 1991. 
(iii). 
The First Appellate Court did not reverse the ﬁ ndings of the 
Trial Court that the sale consideration of Rs. 12,000/- was paid 
1 
(1990) 1 SCC 207
2 
(1962) 2 SCR 509
3 
(2019) 17 SCC 71
RAMATHAL AND ORS. v. K. RAJAMANI (DEAD) 
THROUGH LRS. AND ANR. [VIKRAM NATH, J.]
356
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
to the plaintiﬀ s. The ﬁ nding on possession was in favour of the 
defendants, as the plaintiﬀ s did not produce any documentary 
evidence to prove their possession, whereas the defendants had 
ﬁ led documents (D-03 to D-14) to establish their possession.
(iv). 
The plaintiﬀ s had wrongly pleaded that they were illiterate, 
whereas in fact the High Court had recorded the ﬁ nding that 
they are literate and were ably assisted by their brothers and 
cousins in executing the Power of Attorney. The plaintiﬀ s did 
not plead any kind of fraud by the defendants.
(v). 
The Power of Attorney being a registered document, its contents 
would be deemed to be correct unless proven otherwise. There 
is a presumption of the correctness of the contents of the Power 
of Attorney. 
(vi). 
The suit was not maintainable as no relief was claimed for 
setting aside the Power of Attorney or for cancellation of the 
sale deed. 
(vii). The application of doctrine of non est factum would not arise 
in view of the plaintiﬀ  admitting the execution of the Power 
of Attorney. 
(viii). The plaintiﬀ  cannot turn around and take a contrary stand after 
having received the sale proceeds and handing over possession 
to the defendants. 
(ix). 
The scope of the present appeal before this Court is very 
limited, and unless exceptional and special circumstances are 
shown to establish the perversity in the judgement of the High 
Court, no interference is called for.
The appeal deserves to be 
dismissed. 
(x). 
Reliance has been placed upon the following judgments in 
support of his submissions:
a) 
Prem Singh & Ors. vs. Birbal & Ors.4,
b) Pentakota Satyanarayana vs. Pentakota Seetharatnam5,
4 
2006 (5) SCC 353
5 
2005 (8) SCC 67
357
c) 
ITC Limited vs. State of Uttar Pradesh & Ors.6,
d) M.M.S. Investments, Madurai & Ors. Vs. V. Veerappan 
& Ors.7,
e) 
I.S. Sikandar (dead) by LRs vs. K. Subramani & Ors.8,
f) 
C. Chandramohan vs. Sengottaiyan (Dead) by LRs & 
Ors.9,
g) 
Cauvery Coffee Traders, Mangalore vs. Hornor 
Resources (International) Company Limited10,
h) Taherakhatoon (D) by LRs. vs. Salambin Mohammed11
15. As the High Court proceeded to record a ﬁ nding that there was neither 
any pleading nor any issue framed regarding the plea of non est factum, it 
would be appropriate to ﬁ rst deal with the contents of the plaint. 
16. It is speciﬁ cally averred in paragraph No.6 of the plaint that only 
intention for executing the Power of Attorney in favour of defendant No.2 
was for developing the property in question into smaller plots and to get 
necessary approvals for the same from the relevant authorities. In paragraph 
10 of the plaint, it is clearly stated that the plaintiﬀ s were illiterate and had 
no means to get the above exercise carried out and as the defendant No.2 
was well versed in dealing with Government Authorities, he could have 
helped them in developing the plots. Further, it was speciﬁ cally stated 
in paragraph 10 that after reading the documents in 1991, the plaintiﬀ s 
realized that the defendant had two additional clauses incorporated 
authorizing him to sell, gift, settle the plots in question and also to execute 
wherever necessary transfer of Patta Deeds. This was never
the intention. 
These two additional rights recorded in the Power of Attorney deed was 
never intended nor conveyed nor informed. It is also stated in the plaint that 
taking advantage of illiteracy and simplicity of the plaintiﬀ s, such rights 
have been incorporated in the Power of Attorney. 
6 
2011 (7) SCC 493
7 
2007 (9) SCC 660
8 
2013 (15) SCC 27
9 
2000 (1) SCC 451
10 2011 (10) SCC 420
11 1999 (2) SCC 635
RAMATHAL AND ORS. v. K. RAJAMANI (DEAD) 
THROUGH LRS. AND ANR. [VIKRAM NATH, J.]
358
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
17. A plea of non est factum can be taken by an executor or signatory of 
the deed to plead that the said document is invalid as its executor/signatory 
was mistaken about its character at the time of executing/signing it. It is 
a latin maxim which literally means “it is not the deed.” A plea of non est 
factum is a defence available in Contract Law allowing a person to escape 
the eﬀ ect of a document which she/he may have executed/signed. 
18. As already noted above, the plea of non est factum basically means, 
“it is not my deed.” The said plea has been a subject matter of consideration 
of this court in the case of Bismillah v Janeshwar Prasad (supra). In 
the said case, the plaintiﬀ /appellant therein had claimed herself to be a 
Pardanashin lady and on the representation of the defendant/respondents, 
had appointed them as agent to manage the estate under a written document 
which was drafted in Hindi, a language not known to her. Later on, she 
discovered that it contained an unauthorized clause empowering sale of 
properties. Taking advantage of the same, the said agents had executed 
fraudulent and elusive sale of the said property. The said case set up the 
plaintiﬀ /appellant was considered and dealt with in paras 12 and 13 of the 
report. A further issue which this Court considered in the said case was a 
distinction between fraudulent mis-representation as to the character of the 
document and fraudulent
misrepresentation as to the contents thereof. Such 
defense of non est factum was held to be available only where the mistake 
was as to the very nature or character as to the transaction. This Court also 
relied upon an earlier decision in the case of Ningawwa v. Byrappa12. This 
Court further placed reliance upon the judgement of the House of Lords in 
case of Saunders v Anglia Building Society13 to ﬁ ne tune the distinction 
between the document being void or voidable. Paras 11 to 15 of Bismillah 
(supra) are reproduced hereinunder:
“11. The assumption underlying the reasoning of the High Court is that 
if the action had really been one based on the need for the cancellation 
of the deeds, without which possession could not be granted, the civil 
court would have had jurisdiction. The cause of action in the appellant’s 
suit does admit of being brought within this class of cases.
12 AIR 1968 SC 956
13 (1970) 3 ALL ER 961
359
12. The common law defence of non est factum to actions on 
specialities in its origin was available where an illiterate person, to whom 
the contents of a deed had been wrongly read, executed it under a mistake 
as to its nature and contents, he could say that it was not his deed at all. In 
its modern application, the doctrine has been extended to cases other than 
those of illiteracy and to other contracts in writing. In most of the cases in 
which this defence was pleaded the mistake was induced by fraud; but that 
was not, perhaps, a necessary factor, as the transaction is “invalid not merely 
on the ground of fraud, where fraud exists, but on the ground that the mind 
of the signor did not accompany the signature; in other words, that he never 
intended to sign, and therefore, in contemplation of law never did sign, the 
contract to which his name is appended”
13. Authorities drew a distinction between fraudulent misrepresentation 
as to the character of the document and fraudulent misrepresentation as to 
the contents thereof. It was held that the defence was available only if the 
mistake was as to the very nature or character of the transaction.
14. In Foster v. Mackinnon [(1869) LR 4 CP 704 : 38 LJCP 310], 
Mackinnon, the defendant was induced to endorse a bill of exchange on the 
false representation that it was a guarantee similar to one he had signed on 
a previous occasion. He was held not liable when sued even by an innocent 
endorsee of the bill. Byles,
J. said:
“... The defendant never intended to sign that contract or any such 
contract. He never intended to put his name to any instrument that 
then was or thereafter might become negotiable. He was deceived, 
not merely as to the legal eﬀ ect, but as to the ‘actual contents’ of the 
instrument.”
15. This decision was referred to with approval by this Court in 
Ningawwa v. Byrappa [(1968) 2 SCR 797 : AIR 1968 SC 956] . It was 
observed: (SCR pp. 800-01)
“It is well established that a contract or other transaction induced or 
tainted by fraud is not void, but only voidable at the option of the 
party defrauded. Until it is avoided, the transaction is valid, so that 
third parties without notice of the fraud may in the meantime acquire 
rights and interests in the matter which they may enforce against the 
party defrauded.”
RAMATHAL AND ORS. v. K. RAJAMANI (DEAD) 
THROUGH LRS. AND ANR. [VIKRAM NATH, J.]
360
SUPREME COURT REPORTS 
[2023] 11 S.C.R.
This would be a voidable transaction. But the position was held to 
be diﬀ erent if the fraud or misrepresentation related to the character of the 
document. This court held: (SCR p. 801)
“The legal position will be different if there is a fraudulent 
misrepresentation not merely as to the contents of the document but 
as to its character. The authorities make a clear distinction between 
fraudulent misrepresentation as to the character of the document and 
fraudulent misrepresentation as to the contents thereof. With reference 
to the former, it has been held that the transaction is void, while in the 
case of the latter, it is merely voidable.”
(emphasis supplied)
However the House of Lords in Saunders v. Anglia Building Society 
[1971 AC 1004 : (1970) 3 All ER 961] reviewed the law and held that the 
essential features of the doctrine, as expressed by Byles, J. in Foster v. 
Mackinnon [ Chitty on Contracts, 25th edn., p. 341] , had been correctly 
stated. Lord Reid, however, observed: (AC headnote at p. 1005)
“The plea of non est factum could not be available to anyone who 
signed without taking the trouble to ﬁ nd out at least the general eﬀ ect 
of the document. Nor could it be available to a person whose mistake 
was really a mistake as to the legal eﬀ ect of the document. There must 
be a radical or fundamental diﬀ erence between what he signed and 
what he thought he was signing.””
19. The ingredients of the plea of non est
factum as laid down not only 
in the case of Bismillah (supra) are existing in the present case, but also the 
three parameters as can be deduced from Saunders (supra) were in existence 
in the present case as well. The aforementioned test for a successful plea of 
non est factum requires that:
A.  The person pleading non est factum must belong to “class of 
persons, who through no fault of their own, are unable to have 
any understanding of the purpose of the particular document 
because of blindness, illiteracy or some other disability”. 
The disability must be one requiring the reliance on others 
for advice as to what they are signing. As Lord Pearson had 
aptly put:
361
“In my opinion, the plea of non est factum ought to be 
available in a proper case for the relief of a person who for 
permanent or temporary reasons (not limited to blindness 
or illiteracy) is not capable of both reading and suﬃ  ciently 
understanding the deed or other document to be signed. By 
“suﬃ  ciently understanding” I mean understanding at least 
to the point of detecting a fundamental diﬀ erence between the 
actual document and the document as the signer had believed 
it to be.”
B.  “The “signatory must have made a fundamental mistake as to the 
nature of the contents of the document being signed”, including its 
practical eﬀ ects. Lord Wil berfore has succinctly put this aspect:
“In my opinion, a document should be held to be void (as 
opposed to voidable) only when the element of consent to it is 
totally lacking, that is, more concretely, when the transaction 
which the document purports to eﬀ ect is essentially diﬀ erent 
in substance or in kind from the transaction intended”
C.  The document must have been radically diﬀ erent from one 
intended to be signed. As Lord Reid Remarked in the judgement:
“There must, I think, be a radical diﬀ erence between what he 
signed and what he thought he was signing — or one could use 
the words “fundamental” or “serious” or “very substantial.” 
But what amounts to a radical diﬀ erence will depend on all 
the circumstances.”
All these three criteria are clearly pleaded and made out in the instant 
case as well. 
20. In
the present case, the defendant respondent had taken a plea which 
the High Court had given due consideration that the plaintiﬀ  appellant had 
not sought any relief either for declaration of the Power of Attorney as void 
as also the cancellation of the sale deeds. Law is well settled that where it 
is alleged that the document of sale is void, then no cancellation would be 
necessary and such a document can be ignored under law. Cancellation of 
a sale deed would be necessary only where it is alleged to be voidable on 
RAMATHAL AND ORS. v. K. RAJAMANI (DEAD) 
THROUGH LRS. AND ANR. [VIKRAM NATH, J.]
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[2023] 11 S.C.R.
facts. The present case the fraudulent mis-representation was not only to the 
contents of the document but also to the character of the document. Thus, 
the reasoning given by the High Court contrary to the settled legal position 
cannot be sustained.
21. From a perusal of the plaint, it is more than clear that the plea of 
non est factum was well pleaded, in clear and strict terms. Whether or not 
the plaintiﬀ s were able to prove it would be a diﬀ erent question but the fact 
that it was pleaded is more than apparent. The High Court was thus not right 
in recording the ﬁ nding that plaintiﬀ s did not plead with respect to the plea 
of non est factum. 
22. It would be appropriate at this stage itself to refer to the settled legal 
position on the above aspect. This Court in the case of Bhagwati Prasad vs. 
Chandramaul14 very aptly put that the question for the Courts to consider 
in such matters is whether the parties knew that the matter in question was 
involved and whether they led evidence about it. We may proﬁ tably extract 
para 10 of the aforesaid report:
“10. But in considering the application of this doctrine of the facts of 
the present case, it is necessary to bear in mind the other principle that 
considerations of form cannot over-ride the legitimate considerations 
of substance. If a plea is not speciﬁ cally made and yet it is covered by 
an issue by implication, and the parties knew that the said plea was 
involved
in the trial, then the mere fact that the plea was not expressly 
taken in the pleadings would not necessarily disentitle a party from 
relying upon it if it is satisfactorily proved by evidence. The general 
rule no doubt is that the relief should be founded on pleadings made 
by the parties. But where the substantial matters relating to the title 
of both parties to the suit are touched, though indirectly or even 
obscurely, in the issues, and evidence has been led about them, then 
the argument that a particular matter was not expressly taken in the 
pleadings would be purely formal and technical and cannot succeed 
in every case. What the Court has to consider in dealing with such 
an objection is : did the parties know that the matter in question was 
involved in the trial, and did they lead evidence about it? If it appears 
that the parties did not know that the matter was in issue at the trial 
14 AIR 1966 SC 735
363
and one of them has had no opportunity to lead evidence in respect of 
it, that undoubtedly would be a diﬀ erent matter. To allow one party 
to rely upon a matter in respect of which the other party did not lead 
evidence and has had no opportunity to lead evidence, would introduce 
considerations of prejudice, and in doing justice to one party, the Court 
cannot do injustice to another.”
23. The said ratio has been followed by this Court in 2008, by a two-
judge Bench in the case of Bachhaj Nahar vs. Nilima Mandal and Another15. 
This Court in clear terms stated the object and purpose of pleadings and 
issues. Para 12 of the said report is reproduced hereinunder:
“12. The object and purpose of pleadings and issues is to ensure that 
the litigants come to trial with all issues clearly deﬁ ned and to prevent 
cases being expanded or grounds being shifted during trial. Its object 
is also to ensure that each side is fully alive to the questions that are 
likely to be raised or considered so that they may have an opportunity 
of placing the relevant evidence appropriate to the issues before the 
court for its consideration. This Court has repeatedly held that the 
pleadings are meant to give to each side intimation of the case of the 
other so that it may be met, to enable courts to determine what is really 
at issue between the parties, and to prevent any deviation from the 
course which litigation on particular causes must take.”
24. It would be relevant to refer to the
issues framed by the Trial Court, 
as the High Court also observed that no issue on the plea of non est factum 
was framed by the Trial Court. 
25. The Trial Court had framed the following four issues:
“(i)  Whether the plaintiﬀ s are the absolute owner of the suit property?
(ii)  Whether the plaintiﬀ s are in possession and enjoyment of the 
suit property?
(iii)  Whether the plaintiﬀ s are entitled for the decree as prayed for?
(iv)  To what relief the plaintiﬀ s are entitled?”
15 (2008) 17 SCC 491
RAMATHAL AND ORS. v. K. RAJAMANI (DEAD) 
THROUGH LRS. AND ANR. [VIKRAM NATH, J.]
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26. The ﬁ rst two issues would cover the issue of non est factum as 
an integral part of it when the plaintiﬀ s claimed to be the absolute owners 
thereby denying not only the correctness of the Power of Attorney but also 
subsequent execution of the sale deed by the Attorney (defendant No.2) in 
favour of his own father and brother on the date of the registration of the 
deed of Attorney. Even otherwise once evidence is led with respect to the 
pleadings, non-framing of issues could not have proved fatal so as to record 
dismissal of the suit. The plaintiﬀ  No.1, who had entered the witness box, 
had fully supported his pleadings, as per the plaint. The First Appellate Court 
proceeded to deal with the same or, in other words, proceeded to consider 
the pleadings as also the evidence led on record to arrive at the ﬁ nding that 
the contents of the Power of Attorney were not as per the understanding 
between the plaintiﬀ  and the defendant No.2.
27. The conduct of defendant No.2, the Attorney would also draw an 
adverse inference against the defendant and an inference in favour of the 
plaintiﬀ s’ pleading. The defendant No.2, on the date the Power of Attorney 
got registered, proceeded to transfer the land in question in favour of his 
father and brother for a highly underestimated value much less from the 
guideline value what to say of the market value. The market value as alleged 
would be more than Rs.3 Lakhs at the relevant
time. The guideline value 
was estimated to be Rs.22,500/- whereas the transfer was aﬀ ected for a 
consideration shown as Rs.12,000/-. The defendant failed to explain this 
conduct of his of being in such a haste to transfer the property on the same 
day to his own father and brother. The deﬁ ciency in stamp duty due to under 
valuation was also not cleared as the document had been impounded by the 
Registering Authority and it was after nine to eleven years that the deeds 
were got released after paying the stamp duty, as per the value determined 
by the Assessing Authority. Apparently, the defendants were waiting for the 
outcome of the suit and in case if they were to lose, they would not like to 
invest or spend any further amount on stamp duty so they chose not to pay 
till almost the Trial Court dismissed the suit.
28. The Power of Attorney did not confer possession on the defendant 
No.2. The plaintiﬀ s continued to assert that they were in possession whereas 
the defendants claimed to be in possession pursuant to the sale deed. A
365
ﬁ nding has also come to the eﬀ ect that the consideration of Rs.12,000/- was 
paid to the plaintiﬀ s, which the plaintiﬀ s have denied. The question would 
be as to whether the consideration was just and adequate for the property 
which was transferred by the Attorney holder.
29. The consideration has not been paid either in the bank account 
or by Cheque or Demand Draft but in cash, so, therefore, whether it was 
actually paid or not would be dependent upon the acceptance of either of 
the oral statements by the plaintiﬀ s or the defendants. The statement of the 
defendants considering their conduct, would be placed at a lesser pedestal 
in terms of its genuineness as compared to that of the plaintiﬀ s. There is 
no documentary evidence as such (receipt or any such thing) signed by the 
plaintiﬀ s of having received any consideration. Thus, possession cannot 
be said to have been validly transferred to the defendant and the lawful 
possession would still remain with the plaintiﬀ . The First Appellate Court had 
appreciated and analyzed the evidence on record, both oral and documentary, 
to record a ﬁ nding that plea of non est factum was proved.
30. The case law relied upon by the defendant-respondents are basically 
for the proposition that a registered document be presumed to be correct not 
only of its execution but also of its contents. As already discussed above, 
once the First Appellate Court, after appreciating and analysing the evidence 
on record came to the
conclusion that the plea of non est factum was proved, 
the said ﬁ nding, being a ﬁ nding of fact, ought not to have been interfered 
by the High Court in Second Appeal. The Power of Attorney, having been 
found to be invalid, any further action taken pursuant to it, cannot also be 
held to be valid. Therefore, the judgments relied upon by the defendant 
respondents are of no assistance to them. 
31. The High Court, while exercising its power under Section 100 of 
the Code of Civil Procedure, 1908, exceeded its jurisdiction in disturbing 
the pure ﬁ ndings of fact and that too on incorrect appreciation and reading 
of the pleadings. Non-framing of an issue, which is otherwise covered in a 
broader issue and for which there was suﬃ  cient pleading and evidence, the 
suit could not have been dismissed on that ground. 
32. For all the reasons recorded above, the appeal succeeds and is 
allowed. The impugned judgment of the High Court is set aside and that of 
the First Appellate Court is maintained. The suit of the appellants stands 
decreed.
RAMATHAL AND ORS. v. K. RAJAMANI (DEAD) 
THROUGH LRS. AND ANR. [VIKRAM NATH, J.]

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33. No order as to costs.
34. Pending applications, if any, stand disposed of.
Headnotes prepared by: 
Appeal allowed.
Ankit Gyan