Thomas P. Joseph, J.

1. Following are the substantial questions of law framed for a decision in these second appeals arising from the judgment and decree in A.S.Nos.130 of 2002 and 130(A) of 2002 of the Principal Sub Court, Kochi which arose from the judgment and decree in the suit and counter claim in O.S.No.527 of 2000 of the Principal Munsiff's Court, Kochi:

i. Whether the finding of the courts below that relationship of plaintiff and defendants 2 and 3 is fiduciary in nature is justified in the facts and circumstances of the case?

ii. Whether the legal conclusion arrived by the courts below on the basis of proved facts that Ext.B3 is vitiated by fraud and misrepresentation is correct, especially when the plaintiff, who is of full age and of sound mind executed that deed voluntarily, by which she was denuded of her property, is bound by her own act?

iii. Whether the courts below are justified in setting aside Ext.B3, when the plaintiff failed to make out a case of fraud or misrepresentation, with necessary pleadings of utmost particularity and specific facts?

iv. Whether the courts below are justified in inferring fraud from the circumstances placed, when the alleged acts were not sufficient to draw an inference of fraudulent intention?

v. Whether the conduct of the plaintiff revealed from the admitted and proved facts in the case, coupled with the omission to mention in Ext.P7 (first notice) regarding execution of Ext.B3 under the belief the same was a hypothecation deed, particularly when she realised the (alleged) mistake as early as on 30.11.1999 is inconsistent with the case of fraud pleaded by the plaintiff?

2. 1st respondent/plaintiff was the owner of 6 > cents of land with building thereon in survey Nos.1036/A/1A2 and 1036/1A1A of Fort Kochi Village as per settlement deed No.3109 of 1985 executed by her father (Ext.A1 is a copy of that document). 1st respondent sold 3 = cents and portion of the building in it as per assignment deed dated 30.11.1989, a copy of which is marked as Ext.A2. While so, Ext.B3, assignment deed No.4891 of 1999 dated 04.11.1999 (Ext.A6 is its certified copy) was (allegedly) executed by the 1st respondent in favour of the appellant as if the latter conveyed her right, title, interest and possession of the entire 6 > cents for consideration of Rs.50,000/-. According to the 1st respondent, she was closely acquainted with respondents 2 and 3/defendants 2 and 3 (husband and wife) The husband of 1st respondent, the 2nd respondent and the son-in-law of the 1st respondent had joint business abroad. In the above situation, 1st respondent had much confidence and trust in respondents 2 and 3. Thus respondents 2 and 3 stood in a fiduciary relationship with the 1st respondent. Respondents 2 and 3 were in dire need for Rs.50,000/-and approached the 1st respondent with a request to lend that amount. Since the 1st respondent was short of money, she could not oblige them. Respondents 2 and 3 suggested that appellant who is a money lender is willing to advance the amount (Rs.50,000/-) to respondents 2 and 3 on the strength of a deed of hypothecation. Respondents 2 and 3 wanted the 1st respondent to execute a deed of hypothecation concerning her property. 1st respondent consulted her husband (PW3) who was abroad over telephone and on getting his assent, agreed to execute a hypothecation deed in respect of her property in favour of the appellant as security for the loan to be availed by respondents 2 and 3. 1st respondent handed over the original settlement deed No.3109 of 1985 to the respondents 2 and 3 for preparation of the draft hypothecation deed. A draft hypothecation deed was prepared and that was approved by the 1st respondent. A photocopy of that draft (marked as Ext.A5) was given to the 1st respondent. On 04.11.1999 1st respondent, accompanied by her daughter (PW2) and the 2nd respondent went to the office of the Sub Registrar where a document was got executed by the 1st respondent. Along