The original plaintiff was the owner of the plaint schedule-property His sister Choyichi filed the suit as his next friend. On the death of the original plaintiff the next friend was impleaded as the addl. second plaintiff She also died. Her son was impleaded as the addl. third plaintiff and he is the appellant. The sole defendant, who is the respondent in this appeal, claimed title to the property on the basis of a sale deed allegedly executed by the original plaintiff. He is the son of the addl. 2nd plaintiffs daughter Vellachi. The prayer in the suit is to set aside the sale deed as it was allegedly obtained by fraud. The original plaintiff was allegedly illiterate and totally deaf and the respondent was able to dominate his will. The trial court found that the plaintiff failed to discharge the burden to prove that the sale deed was obtained by fraud. It also entered a finding that the suit is time barred. The decree has been confirmed by the learned District Judge.

2. The allegation in the plaint that the original plaintiff, who executed Ext A1 sale deed in 1986 in favour of the defendant was illiterate is not denied in the written statement; but the plaintiffs case that the original plaintiff was totally deaf at the relevant time and the defendant was in a position to dominate the will of the original plaintiff is specifically denied.

3. The original plaintiffs wife deserted him long long ago. They had no issues. The next friend and sister of the original plaintiff who was later impleaded as second plaintiff and who died pending the suit was his sister. On her death, her son was impleaded as the additional third plaintiff and he is the appellant. The defendant who is the respondent in this appeal is the son of the deceased second plaintiffs daughter Vellachi. His parents abandoned him in his childhood. He was brought up by the original plaintiff and the additional second plaintiff, with whom he was residing in the plaint schedule property.

4. The specific allegation in the plaint is that deafness of the original plaintiff was noticed when he was about 20 years old and within a short time he became totally deaf. The additional third plaintiff who is the appellant in this case, was examined as PW1. Whether the original plaintiff was totally deaf is only a question of fact. The affidavit filed by PW1 in lieu of his examination in chief is a repetition of the pleadings of the original plaintiff word by word. The cross-examination of PW1 revealed that he knew nothing about the alleged incapacity of the original plaintiff though they are brothers. It came out in his cross examination that the first plaintiff himself instructed the advocate to prepare the plaint and conducted the original petition in the High Court engaging a counsel. The testimony of PW1 that the original plaintiff had been taken to a doctor three or four times for the treatment of deafness and thereafter he used a hearing aid is nothing but false. He could not mention the name of the doctor or when he was taken to the doctor. The evidence of PW4, who is the ENT surgeon allegedly consulted by the original plaintiff is inconsistent with the testimony of PW1. Both the courts below discussed the evidence of PW4 and rightly refused to act upon it. The courts below for reasons which can be justified rejected the evidence of PW3 also who deposed that the original plaintiff was completely deaf for 30 years.

5. The trial court and the appellate court took the view that the burden was on the plaintiffs to prove that Ext.AI sale deed was obtained by fraud. This is wrong. See the discussion of the Supreme Court in Sethani v. Bhana (AIR 1993 SC 956). Though the plaintiffs could not prove that the original plaintiff was deaf, it is not denied that he was illiterate. The plea raised is that of non est factum. (See the decision of this court in Mathu v. Cherchi (1990 (1) KLT 416) and Biji Pothan.v. Thankamma John & Others (2012 KHC 2776)) So the burden is on the defenda