The plaintiff must establish how fraud was committed and the relevance of consensus ad idem in executing the sale deed in a property dispute.

JUDGMENT

(Prayer: Appeal Suit has been filed under Section 96 Code of Civil Procedure, 1908, praying to set aside the decree and judgment dated 25.08.2015 in O.S.No.7860 of 2010 passed by the XI Additional City Civil Court, Chennai and allow this appeal with costs.)

The Appeal Suit was dismissed on 02.11.2021 for non-prosecution and the Learned Counsel for the appellants have taken out an application in C.M.P.No.43 of 2022, to restore the appeal suit in A.S.No.612 of 2016 and same is allowed by this Court on 23.02.2022. Hence, the Appeal Suit is restored.

2. The appellants herein are the defendants 1 and 2 before the Trial Court. Aggrieved by the judgment and decree passed by the Trial Court, this appeal is filed.

3. The plaint averments are as under:

The plaintiff is a resident of Keelakarai, Ramanadapuram District. She is an illiterate woman. The suit property at Chennai was purchased in the name of the plaintiff by her husband, who was working in Gulf. The building in the suit land was renovated in the year 2003 and let out for rent as several portions to different families, retaining one room for her personal use when she visit Chennai.

4. At the time of renovation to meet out the construction expenses, in the year 2003 she borrowed Rs.1,20,000/- from George Town Co-operative Bank, Chennai and some more money from third parties. The George Town Co-operative Bank in the year 2006 demanded to repay the loan and close the loan account or else will bring the property for auction. Her husband, who was at that time working in Gulf advised her to get finance by creating usufructuary mortgage of the suit property. The first defendant, who was introduced by a broker came forward to advance loan of Rs.4,00,000/- for the suit property which had a market value of Rs.10,00,000/-. The plaintiff and the first defendant agreed that one room will be retained by the plaintiff and the rest of the portion will be enjoyed by the first defendant free of rent for three years. The plaintiff also agreed to pay interest for the loan amount. Before giving the loan, the first defendant insisted for the execution of a registered deed for the loan amount at the cost of the plaintiff. Therefore, there was re-negotiation and loan amount was raised to Rs.4,50,000/- on the same condition. The plaintiff executed a deed in favour of the first and second defendant and got it registered, with an impression that, it is for security to the loan transaction. The document was prepared by the first defendant. Her signature was obtained on the pretext that it is a deed of usufructuary mortgage. Being an illiterate, believing the words of the first defendant she signed the document.

5. The first defendant cleared the loan availed by the plaintiff from George Town Co-operative Bank and collected the original documents. He paid the balance amount in instalments to the plaintiff. Apart from the sale deed, she also signed other papers on the request of the first defendant on trust. After this transaction, she used to stay in the room retained by her whenever she visit Chennai. On one occasion, the second defendant told the plaintiff that she has no right in the property. Therefore, the plaintiff issued notice to the defendant on 02/09/2006 calling upon the defendant to furnish the copy of the document. In the reply notices dated 15/09/2006, sent by the defendants through their lawyer, they claimed that they have purchased the property for Rs.8,20,000/- paid Rs.7,42,000/- and got possession of the property. If the sale deed to be cancelled, the plaintiff has to repay Rs.7,42,000/- with 24% interest and costs of Rs.40,000/-. On knowing the content of this reply notice, she understood that a fraud has been played by the defendants.

6. Therefore, she collected the copy of the registered document and understood that the property worth 10 lakhs rupees in the year 2006 was got registered for Rs.2,30,000/- in the name of the defendants. While the plaintiff purchased the property for Rs.