The burden of proof in allegations of fraud lies on the party in active confidence, and claims of ignorance are undermined by the execution of prior documents.

JUDGMENT

The sole plaintiff in O.S.No.89 of 2011 before the Sub Court, Mettur, who lost his case before the trial Court as well as the First Appellate Court – I-Additional District Court, Salem (A.S.No.29 of 2017) has preferred this Second Appeal against the judgment and decree dated 10.12.2018 passed in A.S.No.29 of 2017.

2. Parties are indicated herein as per their litigative status and ranking before the trial Court.

3. According to the plaintiff, he is the absolute owner of the suit property by virtue of partition deed dated 16.06.1999 registered in Document No.1941 of 1999 of Sub Registrar Office, Omalur. He is an illiterate person. In the year 2001, he was in need of money and one Selvam and Nagaraj introduced the 1^st defendant who is doing money lending business. He borrowed a sum of Rs.1,00,000/- on 06.09.2001 and executed promissory note, signed in blank stamp papers and cheques in favour of the 1^st defendant. The 1^st defendant demanded to execute a loan document and accordingly, the plaintiff was asked to come to Registrar Office to execute the document. The 1^st defendant obtained thumb impression of the plaintiff in a deed and he put his thumb impression under the impression that the same was a loan document. Thereafter, within 5 or 6 months, he repaid the loan to the 1^st defendant. The defendant returned the promissory note and stamp papers to the plaintiff. The plaintiff asked the 1^st defendant to cancel the loan document. The 1^st defendant told him that the said document need not be cancelled.

3.1. In the month of January, 2011, some land brokers visited the suit property. On enquiry, he was told by the brokers that the 1^st defendant is going to sell the property as he is the owner of the suit property. Upon obtaining the encumbrance certificate, the plaintiff found out that the 1^st defendant fraudulently got sale deed in his favour on 07.09.2001 from the plaintiff. The sale consideration mentioned in the document is false. He did not receive any amount towards sale consideration. The sale never come into force and the possession was still with the plaintiff. Hence, the suit was laid for the relief of declaration that the sale deed executed by the plaintiff in favour of the 1^st defendant on 07.09.2001 is null and void and for permanent injunction restraining the 1^st defendant and his men not to create any encumbrance in respect of the suit property.

4. The purchaser-1^st defendant would inter-alia contend that the plaintiff is an illiterate person and he does not know read and write, is a concocted story. The plaintiff has got the knowledge about the worldly affairs. All other details put forth by the plaintiff are totally incorrect and he did not get any signature of the plaintiff in the promissory note and the other papers. The 1^st defendant purchased the suit property in S.No.28/1A, 0.45½ cents for sale consideration of Rs.1,02,500/- through registered Sale Deed on 07.09.2001 in Document No.2776 of 2001. The respondents no.2 to 9 are the purchasers of the suit property.

5. The trial Court framed the relevant issues. At trial, to substantiate the plaint details, plaintiff has examined himself as P.W.1 and twelve documents were marked. Impugned sale deed dated 07.09.2001 is Ex.A1. On the defendants' side, 1^st defendant examined himself as D.W.1 and attestor to Ex.A1 sale deed one P.M.Krishnan has been examined as D.W.2 and thirty documents were marked.

6. The following substantial question of law arise for consideration:-

“Whether the burden of proof is not on the appellant in a suit filed by the appellant who is an illiterate and affixed his thumb impression in Ex.B9 sale deed in favour of the 1^st respondent?”

7. The learned counsel for the appel