Since the rise of the prices in the property most of the case are coming forward wherein the parties claiming that the signatures on the documents appears to be mine but the same are not voluntarily given because of the fact that when those particular signatures were being taken or when we were being taken before the registrar we were not aware of the content or the purpose of signing that particular document and without our true knowledge the same document have been registered and finally when the document signed bring the final consequences then only the parties come to know about the particular document being used against their interest. Every day fresh cases qua which the properties can be registered are being filed like Will, Gift Deed, Relinquishment Deed, Power of Attorney, Agreement to sell and many other instruments which are being used for unlawful purposes by taking the benefit of those documents.
Now comes the question that if a particular document has been signed under the pretext of being a different document, the parties though apprehending or not apprehending in order to safe guard themselves can write to the concerned register that the particular property in which I have a share as a daughter or as a son or in any capacity whatsoever should not be mutated without my presence because I have never signed any Special Power of Attorney nor signed any relinquishment side or writing to the registrar that my old age bed ridden father or mother is under the control of some other person and that other person can take the advantage of that dominant position and can get the document registered by fraud or undue influence.
In order to understand as what would amount to free consent in terms of signing or executing a particular document the basic terms of the contract are necessary to be discussed because they are being governed by the terms of the contract. In terms of Section 14 of The Indian Contract Act, 1872 which defines that the consent is said to be free if it is not caused by Coercion, Undue Influence, Fraud, Misrepresentation or Mistake. If the consent is taken due to any of the above factors the consent cannot be said to be free and the document is voidable at the instance of the party whose consent was not free.
Now comes the question that the properties mutated or gift deeds prepared on the basis of these false documents stand valid if the party comes to know about the fraud or misrepresentation being played upon that person after the particular property gets mutated or registered. The legislature in its wisdom was conscious of that fact and there Section 33 of the Specific Relief Act, 1963 is being made wherein these kinds of documents can be cancelled and a criminal case of forgery can also be filed against the person who has made the executor believe it to be a different document or have got the document signed fraudulently.
The most used method of taking the signature is showing it to be some other document and actually getting the property documents signed or taking the advantage of the illness of the bed ridden. The problem comes for the party claiming the cancellation of the document has to prove that particular document was got signed by cheating and showing it to be some other document. There are cases wherein the party seeking cancellation is old age or under the full control of the person getting the properties gifted or by coercion. Therefore in order to safe guard a particular document to be wrongly executed one has to be very particular in signing the documents and must ensure that the witness attesting the document must be the ones who are not in connivance with the beneficiary party mislead the executor of the document regarding the contents of the same.
Now since gravity of the cases for cancellation of instruments is increasing day by day and the courts are being conscious of the fact that in most of the cases of gift deed the love and affection as required is missing and still the gift deeds are being made and circumstances in which they were made raises a prima facie doubt regarding the authenticity of the gift deed being prepared with the free will of the executor.