By N. C. Jain, Advocate
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The Word
Non est factum is the stand taken by a party to the suit
when he challenges the enforceability of an agreement or a document on the
ground that even though the document bears his signatures, the same is not his
document as his signatures were obtained by fraud, coercion or misrepresentation
or he signed under misunderstanding of substantial nature. Such pleas generally
do not find acceptance by courts except under special circumstances. On
acceptance of the plea, a document is held void as opposed to voidable as the
element of consent is regarded as totally absent.
2. The term ‘non est factum’ is a latin expression and
is used in legal parlance to mean ‘not his document’. Such a claim is made by
the party signing the document to dispel a general presumption that the person
signing ought to be aware of its meaning, content and character. The law
protects an innocent person raising such plea only when it is diligently proved
that he was swayed into signing the document without knowing the true content
and character as a result of some tricky situation he was placed in.
3. The defence to the plea of non est factum is
basically on facts evidencing that the person arguing non est factum
signed the document with full knowledge and will, or that even if there was some
misunderstanding, the effect thereof is unsubstantial. In Anirudhan v. The
Thomco’s Bank Ltd., 1963 AIR 746 (SC), the plaintiff stood surety for an
overdraft granted by the respondent bank to the principal debtor. A blank signed
surety bond was given by the appellant-surety to the principal debtor who
submitted the same to the lending bank, after filling in the amount of
Rs.25,000. As the bank was not prepared to grant an overdraft of Rs.25,000, the
figure was changed by the principal debtor to Rs.20,000 without the knowledge of
the surety. When the guarantee was sought to be enforced on the default made by
the principal debtor, the surety on ground of non est factum claimed that
he stands discharged after unilateral alteration. Rejecting the claim, the Court
held that the document was not altered in the possession of the promisee, the
principal debtor was acting as agent of the surety and above all the alteration
has not caused any prejudice to the promisor, the same being unsubstantial.
Quoting with approval the observations of Cotton L. J. in Holme v. Bruskill,
(1877) 3QBD 495, the Court held — “The true rule in my opinion is that, if there
is any agreement between the parties with reference to the contract guaranteed,
the surety ought to be consulted, and that if he has not consented to the
alteration, in cases where it is without enquiry evident that the alteration is
unsubstantial or that it cannot be otherwise than benefit to the surety, the
surety may not be discharged.”
4. The plea of non est factum has greater force when
taken by an illiterate or otherwise deficient person not adequately equipped
with power of proper understanding or a person acting under dominance of others.
This, however, is not a decisive factor. In Smt. Hansraj v. Yasodanand,
1996 AIR 761 (SC), the plaintiff was an illiterate, harijan, childless widow who
was given employment in Railways on the death of her husband on compassionate
ground. She wanted to make a will of her inherited house in favour of her
brother’s son. A person pretending to assist her in preparing the document of
will got her signed some papers and, as claimed by her, prepared a sale deed
instead of the will in favour of the brothers’ son. Having lost in all the
Courts, the lady appealed to the Supreme Court taking additional ground based on
non est factum, alleging that the signatures were never made for the
purpose of sale deed. Dismissing the appeal, the Supreme Court held that the
transfer was not vitiated for non est factum. As observed “when it has
been concurrently found by all Courts below on evidence on record that the
document was executed as a sale deed by the appellant, the aforesaid additional
ground pales into insignificance.”
5. Subhash Mahadevasa Habib v. Nemasa Ambasa Dharamdas (D)
by LRS & Ors. INSC 303 (19-3-2007) is a case where alienation was questioned
on the ground that it was vitiated by fraud, coercion and undue influences. The
plea was that the executor of the document was under the impression when he
executed the sale deed that he was executing a document to secure repayment of a
loan of Rs.10,000 which he had taken. He had not intended to execute a sale
deed. The document writer had played a fraud on him. He, in other words, pleaded
a case of non est factum. The Courts negatived the claim and dismissed
the suit as the claimant was not able to prove any fraud on the part of the
document writer, which finding was not disturbed by the Supreme Court.
6. The decisions in such matter rest on direct and
circumstantial evidence. The maxim follows the provisions of the Contract Act
which makes the consent actuated by coercion, under influence and
misrepresentation as voidable at the option of the consenting persons. Non
est factum even defies the maxim ‘ignorantia juris non excusat’ and
even such ignorance can be a valid defence in appropriate cases particularly
involving illiterate persons genuinely but not negligently falling victim to an
unintended action.
