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TMI Blog1939 (12) TMI 11X X X X Extracts X X X X X X X X Extracts X X X X ..... ded, until 1937. Hence Titai Singh could not be examined as a witness. 2. The alleged facts upon which the action was brought, were that some ten years before the suit Titai Singh employed defendant 1 to look after his cultivation and his affairs generally, as he had become too old to manage them himself. After some time defendant 1 asked Titai to grant him a lease of his raiyati lands in order that he might have an incentive to look after Titai's affairs with greater zeal and. care. Titai agreed, and in October 1928, purchased a stamp paper for the purpose and put his thumb mark thereon. In June 1931, defendant 1 asked Titai to get the lease registered, whereupon Titai came to Patna, where defendant 1 fraudulently induced Titai to execute a deed of gift in his favour under the impression that he was executing a lease. Shortly afterwards, defendant 1 left Titai uncared for, and went away with all the papers. Defendants 2 and 3 thereupon, finding Titai helpless dispossessed him from the suit land, representing themselves to be purchasers from defendant 1 as a donee of Titai. 3. Titai thereupon got inquiries made and learnt of the fraud that had been practised upon him. Hen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... : first, that there was no evidence in the case on which a finding of fraudulent misrepresentation could legally be based; secondly, that, even if executed upon a fraudulent misrepresentation as to the contents, the deed is not void ab initio but merely voidable, and a suit to set it aside must be brought within three years of the date of knowledge; it being found that the present plaintiff knew from the time of its execution that it was a deed of gift, a suit to set it aside was barred by limitation at the time the present suit was instituted. Thirdly, that there has been no proper trial of the question of the bona fides of the purchase of the other defendants from defendant 1. 6. I am of opinion that the appeal must succeed upon the first point. I have enumerated the materials from which the lower Appellate Court infers fraud. It is necessary to specify clearly what this inference involves. In this case the fraud alleged is a misrepresentation to Titai that he was executing a lease whereas, in fact the document he was executing was a deed of gift. The fraud, if any, therefore consisted in a direct misrepresentation of fact. Of this there was no direct evidence, no one came for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her than that Titai was induced to execute the document upon a fraudulent misrepresentation with regard to its nature (and indeed he could hardly have done so); but he has proceeded rather upon a wrong legal view of the nature of the circumstantial evidence from which fraud can be inferred. In these circumstances, the finding is based upon a legal error and can be interfered with in second appeal, the case being of the nature in Ram Gopal v. Shamskhaton (1893) 20 Cal 93 where their Lordships of the Privy Council laid down that though a Court of second appeal is not competent to question the soundness of a finding of fact by the Court below, and the decision of the lower Court as to the effect of the evidence must stand final as to the fact, yet the soundness of the conclusions derived from the findings of fact may involve a matter of law and may therefore be questioned by a Court of second appeal. 9. The legal error of the lower Appellate Court in the present case is with regard to the criterion applicable where fraud is attempted to be proved not by direct but by circumstantial evidence. This criterion as I have said, is that the circumstances must exclude every reasonable poss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1907) 1 Ch D 537 that Foster v. Mackinnon (1869) 4 CP 704 was no longer good law. But, in fact, what the later rulings really lay down is that a misrepresentation as to the contents of a document will make it voidable, and only a misrepresentation as to its character will make its execution absolutely void. And, moreover, this principle seems to have been based to some extent upon the assumption that where a man is able to read the document before executing it but omits to do so he cannot afterwards in view of his own negligence be heard to say that he was induced to execute the document by a fraudulent misrepresentation. 13. It has, I think, never been laid down that the principle in Foster v. Mackinnon (1869) 4 CP 704 is not still applicable where the person executing the document is blind or illiterate. The law on the subject has been clearly and concisely laid down in Hem Singh v. Bhagwat Singh MANU/BH/0041/1924 : AIR (1925) Pat 140 from which I would like to quote the following passage: Whether the statement of law in (1869) 4 0 P 7044 would be wholly supported today is a matter of some doubt. A distinction has been drawn in the more modern cases between misrepresentati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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