NARAYANAN MOOPIL Vs. NARAYANAN PRABHAKARAN

JUDGEMENT

(1.) Plaintiff is the appellant. Plaintiff instituted the suit for setting aside Ext.A1 the original of which is Ext.B6 sale deed, and also Ext.A2 the original of which is Ext.B7 sale deed, and for consequential reliefs. Trial Court dismissed the suit. Plaintiff preferred A.S. 46 of 1986 before the lower appellate court which also was dismissed.

(2.) Plaintiff had 7 cents and 125 Sq. links of land in an important place in Quilon town. There was a bunk shop in the said property in which the first defendant who is the nephew of the plaintiff was conducting business. Plaintiff had raised a loan hypothecating the said property to the Urban Cooperative Bank. He had made part payments. According to the plaintiff, the first defendant undertook to discharge the balance amount on the plaintiff executing a hypothecation with respect to the plaint schedule property (which is half a cent in the said 7 cents and 125 Sq. links) in favour of the first defendant and the first defendant agreed to surrender possession of the bunk and to construct a new bunk in the plaint schedule property. Plaintiff further alleged that, pursuant to the same he had to execute Ext.B6 on the representation by defendants 1 to 3. About one month before the institution of the suit the plaintiff came to know that the first defendant was taking steps to assign the property to the 4th defendant; feeling suspicious about the same he took the attested copy of the document. Then only he learnt that what he executed was a sale deed. He would further allege that the balance Rs.1,500/- due to the Urban Bank was not paid by the first defendant as represented by him.

(3.) Defendants 1 and 4 in their joint written statement denied the allegation of fraud. According to them, it was at the instance of the plaintiff that the first defendant who was conducting business in the bunk shop agreed to shift the bunk shop to the plaint schedule property and that the plaintiff with full knowledge executed Ext.B6 sale deed in his favour. Before the execution of the sale deed, he had entrusted the balance loan amount of Rs.1,500/- with the plaintiff for remittance to the bank. It was, after that, Ext.B6 was executed. The allegation of fraud and failure of consideration alleged by the plaintiff was thus denied by defendants 1 and 4. The 5th defendant had only a subsequent charge in the plaint schedule property. The courts below did not accept the case of the plaintiff as regards fraud and on that finding the suit was dismissed.