Das, J.

1. In my opinion there is no ground for interfering with the judgment of the learned Subordinate Judge. The short question which we have to decide in this case is whether in the circumstances of the case the plaintiff is entitled to take up the position that his rights are unaffected by the deed of release executed by him on the 10th August 1918 and the consent decree of the 12th August 1919 to which he was a party. The plaintiff is a blind man, aged 70. He was undoubtedly entitled to a half share in the joint family properties and he instituted a suit sometime in 1917 to have his share partitioned by metes and bounds. His case in the plaint was that the family had separated many years ago but that the properties which were the subject-matter of the litigation had never been partitioned by metes and bounds. Being a blind man and having no one to look after his interests he entrusted his case to one Harihar Prasad Singh who has been cited as defendant second party in this litigation and who is the father-in-law of one of his daughters. The plaintiff's case is that sometime in July 1918 Harihar Prasad suggested a compromise on the terms that he (the plaintiff) should execute a thikapatta in respect of the landed property in favour of the defendants. The plaintiff says that he readily consented to the suggestion made by Harihar Prasad Singh and executed a document on the 10th August 1918 which he believed to be a thika-patta, but which in fact was a deed of release. This was followed by the consent decree in the partition suit on the 12th August and according to the plaintiff he never agreed to the terms on which the case was settled although he was always ready and willing to settle, and thought that he did settle the case, on the terms that he had agreed to give a thika-patta of his properties to the defendants. He instituted the present suit on the 10th February 1919 in substance to have it declared that the deed of release and the consent decree are not binding upon him. The defendant's case is that the terms of settlement as contained in the consent decree were in fact consented to by the plaintiff and that those deems were arranged by certain puoches in Dhobgama to whom the matter was referred by the parties.

2. As I have said the plaintiff is a blind man aged 70 years having no one to look after him except a wife and a widowed daughter. The critical question in the case is did the plaintiff consent to relinquish his interest in the family property for a mere annuity. The term "consent" has been defined as follows in the Indian Contract Act--" Two or more persons are said to consent when they agree upon the same thing in the same sense." In England a plea of non-est factum is open to a party when there is a mis-representation as to the character of the document and the party deceived proves that his mind was directed to one thing and what he put his hand to was a document of an altogether different character. Whether the statement of the law in Foster v. Mackinnon (1869) 4 C.P. 704 : 38 L.J.C.P. 310 : 20 L.T. 887 : 17 W.R. 1105, would be wholly supported to-day is a matter of some doubt. A distinction has been drawn in the more modern cases between misrepresentation as to She character of a document and misrepresentation as to the contents' of a document and it seems to be the modern view that when there is a misrepresentation as to the contents of a document, but not as to the character of the document the plea of non est factum is not available to the party deceived, unless--and this is very important,--he is blind or illiterate. The point is put in this form in Halsbury's Laws of England Vol. 7 page 355. The mere signing of a contract does not necessarily imply consent. Thus, if a blind man, or a man who cannot read, or one who for some reason (not involving negligence) forbears to read, has a written contract falsely read over to him, the reader misreading to such a degree that the written contract is of a nature altogether different from the contract pretended to be read from the paper which the blind or illiterate man afterwards signs, or if the contents of the document are otherwise misrepresented to the person signing, then, at any rate if there is no negligence, the signature so obtained is of no force." In the passage quoted the rule appears to be confined first to a blind man, secondly, to a man who cannot read; and, thirdly, to a man who for some reason forbears to read. This was undoubtedly the view established in Foster v. Maekinnon (1869) 4 C.P. 704 : 38 L.J.C.P. 310 : 20 L.T. 887 : 17 W.R. 1105, but so far as I understand the more modern decision is Howatson v. Webb (1903) 1 Ch. 1; 77 L.J. Ch. 82 : 97 L.T. 730 the rule does not apply to a man who can read but who forbears to read the document. But the question is important only when it is raised between two innocent parties, for unless the document is wholly void, as it would be if the plea of non-est factum succeeds, an innocent party giving consideration cannot be deprived of an interest which he has taken under the dead; but where the question arises between a party deceiving and a party deceived it is immaterial whether the deed is void or voidable; and, even if the party deceived fails in his plea of non-est factum, that is to say, that there was no consent on his part within the meaning of the term as defined in the Indian Contract Act, it is still open to him to prove that there was a mis-representation and to ask the Court to relieve him from the consequences of the transaction.

3. The question whether there was a consent on the part of the plaintiff to the terms of the deed of release and of the consent decree is a question of fact and the Subordinate Judge has accepted the evidence tendered on behalf of the plaintiff. The decision of the Trial Court on a question of fact is entitled to great weight and having anxiously considered all the evidence for myself I am unable to say that the conclusion at which the learned Subordinate Judge has arrived is not supported by the evidence in the record.

4. The case of the defendants is that the dispute between the parties was settled at the instance of punches at Dhobgama. Rambalak Singh one of the defendants in his evidence gave the names of the punches. He said that Rownak Singh, Adhiram Singh and Chaturi Singh were the punches and he added that there were no other punches. Now, none of these gentlemen has been examined on behalf of the defendants to support their case. It has, however, been suggested by Rambalak Singh that they have been won over by the plaintiff. The suggestion is in these words: "As far as I can remember all of them were summoned as witnesses. They declined to come here as witnesses on our side, when they heard of the talk of "bech." We are informed that the term "bech" refers to the sale of an interest in his share by the plaintiff Bhagwat Singh to Biseswar Lal. The suggestion is that Biseswar Lal who has purchased an interest in the share of Bhagwat Singh in the family properties is such an influential man in the village that he persuaded the punches not to give evidence on behalf of the plaintiff. But suggestion is not proof; and on the evidence it is impossible to come to the conclusion that these three gentleman Rownak Singh, Adhiram Singh and Chaturi Singh have been won over by the plaintiff. The fact remains that none of the punches named as such by Rambalak Singh, the defendant, has come to the witness-box on behalf of the defendant. But one Kuldip later on came to the witness-box and said that he was one of the punches in the case. Kuldip undoubtedly is a resident of Dhobgama. Having regard to the evidence of Rambalak it is quite impossible to accept Kuldip as a truthful witness and we cannot regard Kuldip as one of the punches to whom, according to the case of the defendant, the dispute between the parties was referred. That being so, it is certainly a matter of comment that not a single witness from Dhobgama has come to support the case of the defendants. On the other hand the plaintiff has examined numerous witnesses from Dhobgama who swear that the case was in fact settled between the parties. They give the terms of the settlement and according to thorn the case was settled on the terms that the plaintiff would give a thika-patta of his interest in the joint family properties to the defendants. As I have said the question is a question of fact, and the learned Subordinate Judge who undoubtedly was in a far better position than this Court to arrive at the truth, accepted the plaintiff's case on this point. The oral evidence in my opinion did not support the case of the defendants, whereas numerous witnesses were called by the plaintiff who satisfactorily established the plaintiff's case.

5. Mr. Sultan Ahmad appearing on behalf of the defendants asked us to consider the terms of the deed of release and invited us to hold that the terms wore such as a man in the plaintiff's position would readily agree to Under the deed of release the plaintiff took an annuity of Rs. 403 per year; an orchard of graft mangoes 1 bigha 10 kathas in area; an orchard of seedling mango tress 10 kathas in area and 6 kahtas of zerait land. The deed provided that the annuity of Rs. 400 would be reduced to Rs. 300 on the death of the annuitant's wife if she should predecease him; and on his death, if he should predecease her, an annuity of Rs. 250 would be made to the widow. The deed also provided that upon the death of husband and wife Rs. 200 would be paid to each of the three daughters. Lastly it was provided that all debts due on bonds should be paid by the defendants. The evidence establishes that there was a sum of Rs. 2,600 due on a bond at the date of the transaction in suit.

6. Now these are the terms of the deed of release and in order to consider whether the terms are such as the plaintiff would readily agree to, we have to see what was the value of the plaintiff's share in the joint family properties. For the purpose of Court-fee the plaintiff valued his share at Rs. 10,000 but the learned Subordinate Judge arrived at the conclusion on the admission of one of the defendants that the nett income available to the plaintiffs was Rs. 700 a year. He based his conclusion on the evidence of Rambalak Singh, one of the defendants, who said as follows: " Our zerait land has increased since the survey, to the extent of about 40 bighas. We had 70 to 80 bighas of Serait at the time of survey. We got orchards to the extent of 7 to 8 bighas. We have orchards of about 2 bighas at Dhobgama. Our cash income was about Rs. 800 at the time of survey. But it is about Rs. 500. We are to pay about Rs. 125 as revenue and Rs. 125 as cesses. The zerait lands are near about "Dhobgama." On this evidence the learned Subordinate Judge says as follows: " It is, therefore, clear that their total income from zerait and nagdi lands would be 16 times the amount of cesses i.e., about Rs. 2,000. Half the amount belongs to the plaintiff. In his share, the income would be about Rs. 1,000 a year. Making all deductions, his net income would not fall much short of Rs. 600 a year, even according to the admission of Rambalak (defendant's witness No. 3). It is, therefore, highly unlikely that he would forego his half share in these properties, yielding an annual income of about Rs. 1,000 or a net income of about Rs. 700 (in his half share) for a life annuity of Rs. 400 a year, which has been made a charge on the half share of on of the tauzis only." Now undoubtedly the cess payable forms a basis for calculating the value of the property, and it cannot be doubted that the learned Subordinate Judge with his local knowledge was in a position to arrive at a correct conclusion on this question. Mr. Sultan Ahmad has contended before us that there was no issue, and that the parties did not really give any evidence on this point. In my opinion the question of the value of the plaintiff's share was not a matter which it was for the plaintiff to put in issue. The plaintiff was called upon to prove that his mind did not accompany his signature. As a reply to that case the defendants assert that the terms in the deed of release were such as a man in the position of the plaintiff would readily agree to. It was therefore, necessary for the defendants to establish that the terms were proper terms upon which the plaintiff might agree to settle the dispute between him and the defendants. In my opinion it was for the defendants to prove the value of the plaintiff's share in the property. That being so, it is only necessary to refer to the deed of release to see that this old man of 70 gave up his interest in the joint family properties which would yield him an income of Rs. 700 per year for an annuity of Rs. 400. As I have said, he was an old man of 70 and it is impossible to say how long he would live to enjoy this annuity. Under the terms the daughters are not provided for; they are only entitled to receive Rs. 200 each, not forthwith, but upon the death of both the parents. In my opinion it is impossible to say that the terms offered by the defendants to the plaintiff were such as would be readily accepted by him.

7. Mr. Sultan Ahmad has strongly relied upon the evidence of Mathura Prasad, the Sub-Registrar, and Nath Prasad and Kamaluddin, pleaders. It is suggested that if the plaintiff did not in fact put his signature to the deed of release with knowledge of its terms he would not have been taken first to the Sub-Registrar and then to the pleaders in the case. The Sub-Registrar in his evidence says as follows: "My practice was to enquire about the nature of the document from the executants. When the nature and the description of the documents stated by them were found to be correct then I used to register them. "In cross-examination he admitted that he did not read the document nor did he get the entire document read over to him. Now, the Sub-Registrar was only speaking as to the practice of his office. He did not pretend to say what happened on the particular occasion on which the plaintiff went to his office to have the deed of release registered. But I am not very much troubled by the evidence of the Sub-Registrar. The plaintiff's own case is that he thought that he had executed a deed conveying the properties to the defendants for a term. The defendants' case is that he conveyed the properties to them for ever. That was the difference between the parties and I do not see that there was much risk of the difference being brought to his notice at the Registry Office. So far as the evidence of Nath Prasad is concerned he undoubtedly said that the plaintiff went to him. The plaintiff denies that he ever went to Nath Prasad. It is not necessary for me to express any opinion on the question whether Nath Prasad's evidence should be accepted on this point. It is sufficient to point out that Nath Prasad admits that he did not explain to the plaintiff the terms of the sulehnama. He merely asked the plaintiff whether he had entered into a compromise and on the plaintiff's giving an answer in the affirmative he took the thumb impression of the plaintiff on the sulehnama. This is not a very satisfactory state of affairs. Obviously Nath Prasad was engaged in the case for the purpose of putting his signature on the sulehnama. He appears to have done nothing else for the plaintiff. It is a remarkable feature in this case that the plaintiff's pleaders at no time had any opportunity of expressing their opinion on the terms of settlement. His pleaders were Babu Krishna Ballav Prasad, Babu Lachman Prasad and Babu Dharanidhar Nath Prasad, the pleader, says that he asked Babu Krishna Ballav why he did not sign the compromise petition and that he said that there was a difference between him and Bhagwat about fees and that was the reason why he refused to sign. It is perfectly clear from the evidence that neither Babu Krishna Ballav, nor Babu Dharanidhar nor Babu Lachman Prasad who were the plaintiffs pleaders, had at any time an opportunity to express an opinion on the terms of settlement. The document was drafted by the defendant's pleader Kamaluddin. Nath Prasad was engaged only for the purpose of putting his signature to the compromise petition. Apart from that the plaintiff's pleaders had nothing whatever to do with the deed of release. It is impossible to overlook these circumstances when it is remembered that an old blind man of 70 was giving up all his interest in the joint family properties for an annuity of Rs. 400. So far as the evidence of Kamaluddin is concerned it is sufficient to say that he does not say that the plaintiff saw him at any time. There was undoubtedly some evidence that the document was read over and explained to the plaintiff, but although Kamaluddin and Nath Prasad, both pleaders, had something to do with the settlement it was not thought necessary that either of them should explain the document of settlement to the plaintiff. In these circumstances it is impossible to say that the document was actually read out to the plaintiff. In my opinion the view taken by the learned Subordinate Judge is right and ought to be affirmed.

8. I would dismiss the appeal with costs.

Robert Lindsay Ross, J.

9. I agree.