The central legal point established in the judgment is the application of the principle of nonest factum and the burden of proof in transactions involving illiterate persons, emphasizing the need to ensure their understanding of the nature of the transaction and the careful handling of evidence.

Sankarasubban, J.

This appeal is preferred by the plaintiff in O.S. No. 217/84 of the Munsiffs Court, Alathur. Suit was filed for evicting the defendant from the plaint schedule building with arrears of rent. According to the plaintiff, the property, which is about 30 cents in extent in R.S. No. 67/B6 of Pashampalakode Village belonged in jenm to the Kavalappara Estate. Defendant Krishnan had verumpattom right over the property. Verumpattom right with Krishnan's house were assigned to the plaintiff by means of a registered document, Ext. Al dated 23.11.1983. As per that document, plaintiff came into absolute possession and enjoyment of the property and the building thereon. Subsequently, the defendant took the building on rent and executed Ext. A2 Cadakachit dated 1.12.1983. By that Vadakachit, the defendant undertook to pay a monthly rent of Rs. 60/-. According to the Vadakachit, the building was given on lease upto 31.5.1984. Defendant paid rent only upto 31.3.1984. The rent for the subsequent two months was outstanding. Ext. A3 notice was issued to the defendant terminating the tenancy and for arrears of rent. There was no reply from the defendant. Hence, the suit was filed for a decree for evicting the defendant from the plaint schedule property and for realising the arrears of rent, which was quantified as Rs. 720/-.

2. respondent/ defendant entered appearance and filed written statement. Defendant contended that the plaint schedule property belonged to him and his brother Kandan and his children. The property is in their joint possession and enjoyment and it remains undivided. According to him, even though he executed Ext. Al document, that was under the bonafide belief that what he executed was a simple mortgage. He denied the execution of Ext. A2 vadakachi t. According to the defendant, he was never dispossessed and he was never a tenant of the plaintiff. The documents referred to in the plaint as assignment deed and cooly chit are collusive.

3. On the basis of the pleadings, the trial court raised six issues. Plaintiff examined himself as PW.1 and examined the scribe of Ext. Al document as PW2.On the side of the plaintiff, Ext. Al to Ext. A6 were marked and on the side of the defendant, no documents were marked. Defendant examined himself as Dw.1 and examined Kandan as DW2.

4. Trial court dismissed the suit, which was affirmed by the lower appellate court. Both the courts took the view that the defendant was an illiterate person and there was no evidence to prove the execution of Ext. Al. The document was not read over to him. Further the court took note of the circumstances regarding the execution of Ext. A2 and on that basis, came to the conclusion that the defendant was deceived into executing the sale deed when as a matter of fact, he agreed only to execute a simple mortgage deed. It also found that Ext. A2 was not executed by the defendant.

5. The Lower appellate Court held that the defendant was an illiterate person. It took the view that it is highly improbable that the defendant who had no other house to live in would have sold his house and compound and subsequently taken the very same house on rent. According to Ext. Al, the house is a dilapidated one and it is not at all believable that the plaintiff would have resided in the said house. Evidence was lacking to show as to where the defendant was residing between the execution of Exts. Al and A2 documents. Thus, it came to the conclusion that Ext. Al was not intended as a sale deed and that the defendant had not taken the house on lease as per Ext. A2.

6. Learned counsel for the appellant submitted that the entire approach made by the courts below was not correct. Learned counsel contended that except badly stating in the written statement that the defendant actually wanted to execute a mortgage deed, no further details were stated in the written statement. Further, the counsel highlighted the fact that the defendant was joined in the execution of the