Meredith, J.This is an appeal by the defendants from a decision of Babu Anjam Kumar Sahay, Subordinate Judge at Patna, dated 20th September 1938, setting aside a decision of Babu Bhagwan Prasad, Munsif at Patna, dated 31st August 1937. The suit was originally instituted by one Titai Singh, as a pauper, for recovery of possession of certain, properties, and for mesna profits, on a declaration that a deed of gift, said to have been executed by him on 18th June 1931 in respect thereof, was fraudulent and null and void. The suit was instituted on 3rd August 1935, Titai Singh died, on 2nd September 1936, and an agnate of his, the present respondent, Chaichoo Singh, was substituted as plaintiff in his place on 12th October 1936. The substituted plaintiff paid full court-fees on the subject-matter of the suit. The suit was not heard, or evidence recorded, 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 Titais 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. Hence the plaintiffs suit for a declaration that the deed of gift was void and that the defendants had acquired no title to the lands.

The defence was that there was no fraud in execution of the deed of gift, that it was validly executed and was acted upon, that defendant 1 having acquired a good title thereunder made a bona fide sale of 4 1/4bighas of the land and the house to defendant 2 for a sum of Rs. 1,400 and 1 bigha odd to defendant 3 for a sum of Rs. 200 by registered sale deeds. Defendant 2 subsequently sold a portion of the land purchased by him by a registered sale deed to defendant 5. It was alleged that Chaichoo Singh and some others had wanted to purchase the properties themselves, and so had induced Titai Singh, who did not like the idea that defendant 1 should sell away the properties in his lifetime, to file this false suit. The learned Munsif found that there was no satisfactory evidence to substantiate the case of fraud.

4. Fraud could only be established by cogent and convincing evidence, but no such evidence was produced. On the contrary, the scribe was examined, and stated that he had read over and explained the deed of gift to Titai Singh, who had instructed him to write it out. An attesting witness and one Ramdeo Singh, who purported to have signed the deed of gift for Titai, who was illiterate, gave evidence to the same effect. In this view he dismissed the suit with costs. The learned Subordinate Judge conceded that there was no direct evidence of fraud but was of opinion that fraud could be inferred from the circumstances on the record. He enumerated these circumstances as follows:

5. (1) That Titai Singh was old and illiterate; (2) that the stamp-vendor was not examined; (3) that the deed contained a false recital that defendant 1 was Titais grandson whereas there was actually no evidence at all of any relationship; (4) that Titai was falsely described as being a resident of Chiraura, defendant 1s village, whereas actually he was a resident of village Hulaschak; (5) that defendant ls name was not mutated in the landlords sarishta; and (6) that the attesting witnesses were all of Chiraura and none of Hulaschak. In this view he held that the plaintiff was entitled to a decree for possession and mesne profits, and hence, allowed the appeal and decreed the suit with costs. The points taken in appeal are: 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 fradulent 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 forward to prove any misrepresentation, and Titai him-self was dead. The only direct evidence in the case was the evidence of the scribe and the attesting witness that the document was read over to Titai and that he executed it knowing it to be a deed of gift. A finding of fraud could, therefore, be based only upon an examination of the circumstances; and it is obvious that upon none of the circumstances specified could any direct inference of misrepresentation be based. The finding of misrepresentation, if arrived at all, could only be from a consideration of the circumstances as a whole.

7. Some of these circumstances were largely explained away; for example, the recital that defendant 1 was Titais grandson, might have referred only to village or courtesy relationship, and as regards the question of residence, Titai in the document was actually described as a resident of Hulaschak, but it was mentioned that at that time he was residing in Chiraura, and it was not disproved that Titai had gone to reside in Chiraura as alleged, though that might have been upon the execution of the deed of gift and not prior to it. That circumstance would largely remove the justification for suspicion in the fact that the attesting witnesses were of Chiraura not Hulaschak. Again, the fact that Titai was old and illiterate, would justify the inference that he could be defrauded, but not that he was in fact defrauded. As for the fact that defendant ls name was not mutated in the landlords office, that was largely offset by the fact that canal parchas and chaukidari receipts were filed in his name. These however are circumstances which are, strictly speaking, irrelevant in second appeal; and the only question is whether upon the learned Subordinate Judges valuation of these circumstances, fraud was an inference which could legally be made. Now it is well settled that where fraud is to be inferred from the circumstances, and is not directly proved, those circumstances must be such as to exclude any other reasonable possibility. In other words, the criterion is similar to that which is applicable to circumstantial evidence in criminal cases.

8. The learned Subordinate Judge has not applied this criterion to the circumstantial evidence. He has not proceeded on any finding of fact that the circumstances enumerated by him exclude every reasonable possibility other 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 possibility except that of fraud. Where there is direct evidence, the matter is otherwise that the finding of fraud may be a pure finding of fact, as has been laid down in AIR 1932 89 (Privy Council) . But where there is no direct evidence and only an inference, then the finding involves the legal question as to whether the circumstances are such that the necessary inference can legally be derived.

10. In the present case, I am of opinion that it cannot be. There is no evidence in the case upon which a finding of fraud could legally be based.

As the appeal must succeed upon the first ground, the other questions argued do not really need determination. I may state, however, that upon these points I would not be prepared to accept the contentions of the learned advocate for the appellants. If Titai executed the document under the impression that it was a lease, when in fact it was a deed of gift, then I think there was no real execution since Titais mind would have been directed to one thing whereas what he put his hand to was something of an altogether different character. The executants mind was not with his hand.

11. If there was no real execution, the document was wholly void and not merely voidable. That is What was laid down in Sarat Chandra v. Kanai Lall AIR (1921) Cal 786 , the ruling relied upon by the learned Subordinate Judge. This ruling appears to me strictly applicable to the case. Therein it was held that where the plaintiff had prayed for a declaration that a deed of gift was void and inoperative since the donor signed it believing, owing to a fraudulent misrepresentation, that it was only a power of attorney, the three years limitation provided by Articles 95 and 91, Limitation Act, had no application, since the principle laid down in Foster v. Mackinnon (1869) 4 CP 704 that the alleged deed was no deed, was applicable, and the deed being void ab initio, did not require to be set aside or cancelled. Richardson J. in that case observed that the Courts draw a distinction between void and voidable instruments, and held that Article 91 did not apply to instruments which were void ab initio so as not to require setting aside, as would be the case when the plaintiff raises and establishes the plea known to English lawyers as non est factum.

12. The learned advocate for the appellants argued on the basis in Howatson v. Webb (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 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 misrepresentation as to the 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. So far as I understand the more modern decision in Howatson v. Webb (1907) 1 Ch D 537 the rule does not apply to a man who can read but who forbears to read the document.

14. In the present case the finding is that Titai was a very old man and illiterate. Hence, in my opinion, if he signed the document upon a misrepresentation as to its contents, there will be no real execution, the plea of non est factum will succeed, and the document will be void ab initio. But apart from that, it seems to me that a representation that a document was a lease when it was in fact a deed of gift, would be a misrepresentation as to the nature of the document and not merely as to its contents. Obviously, the line of distinction might sometimes be a fine line. I can conceive cases where it might be very difficult to say whether the document signed and the document fraudulently represented actually differed in nature or merely in contents; but I feel no doubt that as between a lease and a deed of gift, there is a difference of nature and not merely a difference of content.

15. Where the document is wholly void ab initio, any prayer to set it aside is unnecessary and redundant. That is enough to dispose of the questions of limitation and bona fides. The suit could not be barred by limitation, and defendants 2 to 5 could acquire no title, however bona fide their purchase from defendant 1 might have been. As, however, the appellants have succeeded upon the first point, I would allow the appeal and dismiss the suit; Having regard to the circumstances of the case we direct that the parties shall bear their own costs throughout.

Fazl Ali J.

16. I agree.