Summary
The Court restored the decree protecting the landowners’ title after the first appellate court found their power of attorney vitiated by non est factum. The pleadings and evidence covered the unauthorised power to transfer the land, and absence of a separately framed issue did not justify dismissal. The High Court exceeded second-appeal jurisdiction by disturbing those factual findings on an incorrect reading of the record.
Issues
- Whether non est factum had been adequately pleaded and tried.
- Whether separate cancellation relief or a separately framed issue was necessary.
- Whether the High Court could disturb the first appellate court’s factual findings.
Provisions considered
- Section 100, Code of Civil Procedure, 1908The High Court exceeded second-appeal jurisdiction by overturning factual findings on the mistaken premise that the plea was unpleaded and untried. (¶¶ 26, 29, 30, 31)
Held
- Non est factum concerns a fundamental difference between the document intended and the one signed, including circumstances where disability or illiteracy requires reliance on others. Fraud merely as to legal effect or some contents is distinct from a radical mistake as to the transaction’s character; the required conditions were pleaded and established here. (¶¶ 16, 17, 18, 19, 20, 21)
- The plaint specifically alleged that authority intended only for development and approvals had been expanded without consent into powers of sale and other transfers. Those allegations, the broader title and possession issues, and the evidence permitted determination of non est factum despite no separately labelled issue. (¶¶ 16, 21, 22, 23, 24, 25, 26, 31)
- Where the challenged transaction is void, separate cancellation need not be sought as if it were merely voidable. The fraudulent alteration here concerned the character as well as the contents of the authority, so the absence of cancellation relief did not defeat the suit. (¶¶ 18, 19, 20)
- The attorney’s same-day undervalued transfers to his father and brother, delayed payment of deficient stamp duty and absence of documentary proof of consideration supported the first appellate court’s findings. Those factual findings could not be displaced merely by invoking registration of the instrument. (¶¶ 27, 28, 29, 30)
- Once the power of attorney was found invalid, the transfers purportedly made under it could not be sustained. The High Court’s contrary approach rested on incorrect appreciation of the pleadings and exceeded Section 100 jurisdiction. (¶¶ 30, 31, 32)
Result
Appeal allowed. High Court judgment set aside; first appellate judgment maintained and appellants’ suit decreed. No costs.