A mere declaration that a sale deed is null and void is ineffectual; a plaintiff must seek to set aside the deed, which must be substantiated by evidence to oppose its presumptive validity.

JUDGMENT

The 3^rd defendant in O.S.No.373/2000, a suit before the Principal Sub Court, Irinjalakuda, for declaration that a sale deed executed by the plaintiff is sham and was only intended to operate as a security deed, along with a consequential prayer for recovery of possession, has come up in the present appeal aggrieved by the concurrent findings against her.

2. The brief facts necessary for the disposal of the appeal are as follows:

2.1. The plaintiff purchased the plaint schedule property through an assignment deed in the year 1997. The 1^st defendant was conducting a money lending business in the name ‘Management Consultants’ and the 2^nd defendant was the Manager under the 1^st defendant. The 2^nd defendant used to issue receipts on behalf of the 1st defendant and that the husband of the plaintiff approached the 1^st defendant and borrowed a sum of Rs.1,00,000/-. At the time of granting the said loan, the 1^st defendant insisted that a mortgage deed be executed with respect of the property of the plaintiff in the name of the 1st defendant or in the name of the persons, as suggested by him. He assured that once the mortgage debt was cleared off, a surrender deed would be executed. Accordingly, the plaintiff executed the Document No.2553/1997 in favour of the 2nd defendant believing that the same is a security for the debt due from her husband. The husband of the plaintiff cleared off an amount of Rs.40,780/- towards loan. Eventhough a registered document was executed in respect of the plaint schedule property, the possession was not parted. The plaintiff also gave the house in the property on lease to Louise and Varghese and they have executed a lease deed on 24.05.1997. Thereafter, the defendants threatened the tenants and attempted to forcefully evict them and take forceful possession of the building and hence, a complaint was lodged. Later, the plaintiff came to know that she had executed a sale deed in favour of the 2^nd defendant. Since the defendants had no intention to convey the property back, the plaintiff is constrained to file the suit seeking for a declaration that the document executed by her on 16.05.1997 in favour of the 2^nd defendant is null and void.

2.2. The defendants 1 and 2 filed a written statement contending that, they have sold the property to the 3^rd defendant in the year 1999, just before the filing of the suit. It was also contended that the plaintiff with open eyes executed the document in favour of the 2^nd defendant and therefore, she cannot resile back. The allegation that the document was a sham document was denied and that it was further contended that no act of fraud was perpetuated by them to get the sale deed executed. The document was executed by the plaintiff after fully understanding the nature and scope of the document. Consequent to the filing of the written statement, the 3^rd defendant/appellant herein was impleaded in the year 2004 and an amendment was also sought for by seeking for recovery of possession and also for amending the schedule of the plaint. It is pertinent to mention that when the suit was originally instituted, the extent of property was not shown in the plaint schedule, whereas the building alone was shown. The 3^rd defendant, by filing a written statement, resisted the suit and contended that, she had paid valuable consideration to the 2^nd defendant and accordingly, the property was assigned to her and therefore, the relief against the 3^rd defendant cannot be sustained.

2.3. On behalf of the plaintiff, Exts.A1 to A8 documents were produced and PW1 to PW5 were examined. On behalf of the defendants, Exts.B1 to B6 documents were produced and DW1 an