The doctrine of non est factum applies when an illiterate person executes a document without understanding its nature, rendering the document void. Section 92 Proviso 1 allows evidence to show a contract is void or voidable due to fraud or misrepresentation. The burden of proof rests on the party seeking to sustain the transaction.

JUDGMENT

(Prayer: Second Appeal filed Under Section 100 of the Code of Civil Procedure against the decree and judgment dated 23.12.2011, made in A.S.No.16 of 2011 by the learned Subordinate Judge, Dharmapuri, confirming the judgment and decree dated 07.12.2010 made in O.s.No.71 of 2006 by the learned District Munsif at Palacode.)

1. The plaintiff is the appellant in this Second Appeal.

2. The case of the plaintiff is that the suit property belonged to the 2nd defendant. The 1st defendant is the husband of the 2nd defendant. According to the plaintiff, the defendants entered into a registered agreement of sale with the plaintiff dated 01.08.2001 (Ex.A1). As per the agreement, the total consideration was fixed as Rs.45,000/- and the defendants received an advance amount of Rs.35,000/- and the balance Rs.10,000/- has to be paid within a period of 23 months and the Sale Deed must be executed in favour of the plaintiff. Subsequently, the plaintiff paid the balance amount of Rs.10,000/- and a registered Sale Deed 18.07.2003 (Ex.A2) was executed in favour of the plaintiff. It is further claimed that the possession was handed over and the revenue records were also transferred in the name of the plaintiff and the plaintiff was in possession and enjoyment of the suit property as the absolute owner of the property.

3. The grievance of the plaintiff is that the defendants started interfering with the possession and enjoyment of the property and hence, the plaintiff filed the suit seeking for the relief of declaration of title and for permanent injunction restraining the defendants from interfering with the possession and enjoyment of the suit property.

4. The defendants filed a written statement. They came up with a defence to the effect that they are illiterate persons and poor agriculturists. The plaintiff is involved in money lending business and the defendants borrowed a sum of Rs.35,000/- as loan from the plaintiff. It is further stated that the plaintiff asked the defendants to affix their thumb impression in the stamp paper and the defendants believed the same to be a loan document and accompanied the plaintiff for registration of the document. The further case of the defendants is that they were not able to repay the loan amount or the interest on time and taking advantage of their situation, the plaintiff called them for execution of another document by stating that the period of the loan document must be extended. Accordingly, the defendants affixed their thumb impression in the document. The specific defence taken by the defendants is that they never intended to sell the property in favour of the plaintiff and they never knew that the plaintiff had managed to get a sale agreement and a Sale Deed executed in his favour. Only after the filing of the suit, they became aware of the same and thus the defendants have raised the plea of non est factum and contended that the documents in question are vitiated by fraud and they had sought for the dismissal of the suit

5. Both the Courts below on consideration of the oral and documentary evidence and on considering the facts and circumstances of the case, concurrently held against the plaintiff. Aggrieved by the same, the present Second Appeal has been filed before this Court.

6. When the Second Appeal was admitted, the following substantial questions of law were framed:

(a) Whether the Courts below went wrong in construing Ex.A1 and A2 as loan documents and the oral evidence given contrary to the contents of these documents is in violation of Section 91 and 92 of the Evidence Act?

(b) Whether the findings of the Courts below is vitiated by improper appreciation of the oral and documentary evidence available on record?

7. The learned counsel for the appellant submitted that the defendants never challenged the validity of the sale agreement or the sale deed executed in favour of the plaintiff and hence, they cannot be allowed to wriggle out of their obligations under these documents. The learned