Registered sale deed's validity prevails over subsequent will recitals absent fraud proof; oral evidence cannot contradict under Evidence Act Sections 91-92.

JUDGMENT :

EASWARAN S., J.

The 1^st defendant in a suit for declaration of title, mandatory injunction and recovery of possession has come up with the present appeal, aggrieved by the reversal of the dismissal of the suit by the Additional District Court-IV, Kollam, on appeal by the plaintiff.

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

The plaintiff is the son of one late Joseph Mathew. The late Joseph Mathew had transferred right title and interest over the plaint schedule property in favour of the 1^st defendant / appellant by a registered sale deed dated 20.09.1989. Later, it appears that Joseph Mathew had executed a closed Will on 18.05.1998. Though it is stated that it is with concurrence of the 1^st defendant, the evidence on that aspect is completely lacking. Joseph Mathew expired on 16.08.2005 and later on 05.10.2005, the Will was opened in presence of the appellant and the authorised representative of the 1^st defendant one Roy Thomson. It is stated that as per the Will, the property was outstanding on mortgage with the 1^st defendant and that the period of mortgage was fixed for 12 years. It was further provided that on expiry of the mortgage, the property will be given on rent to the 1^st defendant for a further period of 24 months. As regards the amount outstanding on mortgage, according to the plaintiff, Ext.A1 Will provided that, the amount will be discharged in 136 equal installments by reckoning an amount of Rs.430/- as maintenance cost. Thus according to the plaintiff, since Joseph Mathew did not intend to transfer his right over the plaint schedule property in favour of the 1^st defendant, the purported deed, which partook the character of a sale deed was never intended to be executed by the deceased Joseph Mathew and the same was obtained by playing fraud. Therefore, the relief in the form of a declaration of title over the plaint schedule property was sought for with consequential relief of recovery and also for recovery of mesne profit at the rate of Rs.18,000/- per year. The defendants resisted the suit by raising various contentions touching upon the sustainability of the Will and also the statement made in the Will by the deceased testator that what was intended by him was only a mortgaged deed, and not a sale deed. Other contentions were also raised by the defendants. On behalf of the plaintiff, Exts.A1 to A9 documents were produced and PW1 to PW4 were marked. On behalf of the defendants, Exts.B1 to B4 were marked and DW1 to DW5 were examined. Exts.X1 to X17 are the third party exhibits. Exts.C1 is the report of the Advocate Commissioner. The original of the Will was written in Braille language, since the deceased Joseph Mathew was stated to be a blind person. An Advocate Commissioner was appointed to translate the contents of the Will, which was written in Braille language. The translated version was also produced before the court as Ext.C2. The trial court on appreciation of the oral and documentary evidence came to the conclusion that after execution of Ext.A4 sale deed, deceased testator had no right in the scheduled property and therefore he could not have bequeathed any right title and interest in favour of the plaintiff. Lack of evidence from the side of the plaintiff was cited as reason to dispell the contention that, Ext.A4 sale deed was executed by playing fraud on deceased Joseph Mathew. Aggrieved, the plaintiff preferred appeal, as A.S No.70/2015, before the Additional District Court-IV, Kollam, by judgment dated 01.06.2017, the First Appellate Court on re-appreciation concluded other wise and held that Ext.A4