The burden of proof lies on the plaintiff in claims of non est factum, which must be substantiated by independent evidence to succeed.

J U D G M E N T

This appeal arises out of the judgment and decree passed by the Munsiff Court, Chittur in OS No.59 of 2011 as confirmed in AS No.160 of 2015 by the District Court, Palakkad.

2. The plaintiff approached the Munsiff Court for cancellation of sale deed executed by her as 1665/08. The main contention raised by the original plaintiff was that she did not intend to execute the document and that what was intended by her was only to execute a will. However, the defendant had misrepresented to her as regards the character of the document, and in the guise of making her believe that she was executing a will, a sale deed was executed in his favour. She also denied the receipt of consideration from the defendant. The defendant entered appearance and resisted the suit by contending that before registration of the sale deed, the contents of the registered deed were read over to the plaintiff and she was convinced regarding the contents and thereafter only the sale deed was executed. It was further contended that the plaintiff in fact wanted to sell the property outside the family and knowing the aforesaid intention, the defendant came and purchased the property after payment of consideration.

3. On behalf of the plaintiff, Exts.A1 to A3 were produced and marked and PW1 was examined. On behalf of the defendant, B1 and B2 series were produced and DW1 to DW4 were examined.

4. The trial court, after appreciating the oral and documentary evidence, came to the conclusion that the original plaintiff failed to prove that Ext.A2 document of sale deed was executed by misrepresenting the character of the document. In fact, the trial court found that the pleadings in the suit were insufficient to draw a conclusion that fraud had been played at the time of execution of the document. Further the trial court found that going by the reasoning given by the original plaintiff in Ext.A3 cancellation deed, the sale deed was cancelled not because the defendant was about to alienate the plaintiff's property but because she had been expelled from the defendant's house. It was also found that the plaintiff’s statement that she became aware of the contents of Ext.A2 document in 2009 was incorrect, and that no independent evidence had been adduced by her to substantiate the plea of non est factum. Accordingly, the suit was dismissed.

5. Aggrieved, the plaintiff preferred A.S No.160 of 2015 before the District Court, Palakkad and vide judgment 21.12.2019, the appeal was also dismissed affirming the findings of the trial court and hence this appeal has been preferred.

6. Heard the learned counsel appearing for the appellant.

7. The learned counsel for the appellant submitted that the courts below erred grievously in dismissing the claim. The additional appellants, who were now impleaded, also claimed a right over the property. The courts below failed to consider the plea of non est factum in proper perspective. The plea of non est factum has not been properly appreciated by the courts below. The courts below ought to have accepted the evidence of PW1, the original plaintiff, to hold that the document executed by her was procured by misrepresentation as to its character.

8. I have considered the submissions raised across the bar by the learned counsel for the appellant.

9. On consideration of the submissions raised across the bar, this Court finds that no substantial question of law arises for consideration in the appeal. The only ground on which the challenge to Ext.A2 sale deed is sought to be sustained is by raising a plea of 'non est factum'. It is settled law that when a plea of 'non est factum' is raised, the burden heavily lies on the plaintiff to establish the same. On going through the judgments rendered by the courts below, this court is not persuaded to hold that the original plaintiff had