The burden of proof in cases of fraud and misrepresentation lies with the plaintiff, and additional evidence should only be admitted if it is relevant for deciding the case and could not be filed during trial.

1. The defendants are the appellants. The first respondent S.Radhabai filed the above suits for declaration that the sale deeds, dated 08.12.1995 and 24.11.1995 were obtained from her by the defendants/appellants by practicing fraud and misrepresentation and therefore, prayed to set aside the sale deeds and for injunction restraining the appellants from interfering with her possession and enjoyment of the suit property.

2. During the pendency of the suit, the plaintiff S.Radhabai died and the 2nd plaintiff was impleaded as the legal heir, on the basis of the alleged Will executed by S.Radhabai in favour of the 2nd plaintiff.

3. The case of the original plaintiff, S.Radhabai, in all the three suits, was that she was the owner of the property and the appellant in S.A.No.1468 of 2007, who was none other than the brother's son of her husband, approached her for funds and as she was not in possession of funds, he requested her to execute a mortgage and raise funds and that mortgage would be discharged by the appellant in S.A.No.1468 of 2007 and believing the representation of Adhikesavalu Reddiar and with an intention of helping him, she executed a mortgage deed and latter, she realised that under the pretext of mortgage, the appellants obtained the sale deeds in their names in respect of the schedule properties and therefore, the sale deeds were obtained by fraud and misrepresentation and no consideration was passed under those sale transactions and filed the suits for setting aside the sale deeds and for injunction.

4. The appellants, in all the suits, contended that the sale deeds were executed by the plaintiff, while she was in a sound disposing state of mind and she was aware of the nature of document executed by her and the consideration was paid by the appellants for the sale and they are in possession of the property and therefore, the registered sale deeds cannot be set aside.

5. The trial court accepted the case of the appellants and dismissed the suits and the Lower Appellate Court reversed the findings of the trial court and allowed the appeals. Hence, these second appeals were filed by the appellants.

6. The following substantial questions of law were framed at the time of admission:-

“01. Has not the lower appellate court committed error in law by admitting additional evidence since the respondent failed to make out any case under any one of the ingredients prescribed under Order 41 Rule 27 of CPC?

02. In a suit to set aside the sale deed on the ground of fraud and misrepresentation, has not the lower appellate court committed error in law by shifting the burden on the defendant to prove that the property was purchased for valid consideration, while the plaintiff has failed to discharge the initial burden of fraud and misrepresentation?

7. Mr.M.S.Subramanian, learned counsel appearing for the appellants submitted that the Lower Appellate Court without properly appreciating the oral and documentary evidence and the fact that the sale deeds were executed on different dates, erred in holding that the sale deeds were obtained by fraud and misrepresentation. He further submitted that a perusal of the recitals, in those sale deeds, would also prove that the sale deeds were executed for consideration and the plaintiff was aware of the contents of the sale deeds and even in the month of November 1995, the plaintiff sold some of the properties in favour of one Alli Rani and that would also prove that the plaintiff was aware of the nature of documents executed by her and without properly appreciating all these aspects, the Lower Appellate Court erroneously received the additional evidence and came to the erroneous conclusion that the plaintiff was suffering from 'senile dementia' and was not in a position to remember and therefore, her evidence should not be taken seriously and PW2 has spoken about the condition of the plaintiff and PW2 also proved that the plaintiff continued to be in possession of the property