In order to invalidate a sale deed on grounds of fraud under Section 28 of the Registration Act, clear and cogent evidence must be presented to establish the non-existence of the property.

JUDGMENT

The legal representatives of the deceased sole plaintiff, who were brought on record as plaintiffs 2 to 4, 6 and 7, are the appellants. The suit was filed to set aside the sale deed dated 26.09.1983 allegedly executed by the first defendant in favour of the second defendant. The suit was dismissed by the trial Court and the findings of the trial Court were affirmed by the first appellate Court. Aggrieved by the concurrent findings, the plaintiffs have come by way of this Second Appeal.

The averments found in the plaint:

2. According to the plaintiffs, the deceased first plaintiff Gabriel was the son of the deceased first defendant Rayappan @ Ponnam Perumal. The first defendant got four sons. He received Rs.1,000/- from each of his sons and orally surrendered the suit property to the deceased first plaintiff and his other sons in the year 1970. After surrender by the first defendant, the plaintiff annexed the suit property along with his property and had put up boundaries on all the sides. The deceased first plaintiff improved the suit property into paddy fields by investing Rs. 2,000/-. On 12.06.1962, the deceased first defendant and his 4 sons entered into a partition and the first defendant had taken properties in the first schedule to the partition deed and the suit property was one among them. At the time of filing of the suit, the first defendant was aged about 90 years and he was mentally and physically infirmed. The first defendant went to the place of his younger son Mariya Sebastian and had been living with him and he was fully under his influence. The younger son of the first defendant had taken him to Parassala Sub Registrar Office and influenced him to execute a sale deed in favour of the second defendant. It was also averred that the first defendant was physically and mentally infirmed at that point of time. The property sold to the second defendant was the suit property over which, the first defendant had no manner of right or possession due to surrender in favour the plaintiff and his sons. The first defendant did not receive any consideration from the second defendant and whole beneficiary of the transaction was Mariya Sebastian, his younger son. The property described as 'B' schedule in the sale deed allegedly available in Parassala Village in Kerala State. The said property is non-existent and fictitious one and the same has been included for the purpose of creating a fraudulent document and getting it registered in Parassala Sub Registrar Office at Kerala State. The suit property which was described as 'A' schedule to the sale deed is located within Palliyadi Sub Registrar Office in Tamil Nadu. The inclusion of 'B' schedule property was only for the purpose of getting it registered at Kerala. Therefore, the registration of the sale deed is vitiated by fraud and consequently, plaintiff laid a suit for above said relief.

The averments found in the written statement of the first defendant:

3. The first defendant filed a written statement and denied the plaint averments. It was his case that the suit property belonged to him and he sold the suit 'A' schedule property to the second defendant as per sale deed dated 26.09.1983. The first defendant denied the surrender of suit 'A' schedule property to the plaintiff and the first defendant denied the averment in the plaint that suit 'A' schedule property was surrendered to him. It was contended that suit 'A' schedule property had been in his possession and enjoyment till the date of sale in favour of the second defendant and he had planted trees standing thereon. The partition and allotment of the suit 'A' schedule property to the first defendant as pleaded in th