AYANIKKAL ACHUNNI Vs. BHANUMATHI

JUDGEMENT

(1.) This appeal is filed by the defendant in a suit to set aside a sale deed on the ground of fraud and misrepresentation and for injunction against trespass with respect to plaint schedule property. The Trial Court decreed the suit as prayed for. The main contention of the appellant is that the Trial Court decreed the suit not on the basis of the pleadings in the plaint or the evidence on the side of the plaintiff but on certain suspicion in the evidence adduced by the defendant. It is argued that the entire decision is vitiated by non application of relevant considerations in a suit of this nature and of application of irrelevant considerations. Hence it is necessary to go into the pleadings in detail and discuss the evidence so as to find out whether any interference is called for in the appeal.

(2.) In the plaint, it is stated that the plaintiff agreed to sell 40 cents on the northern part of plaint A - schedule property for Rs. 30,000/- and Rs. 500/- was received in advance. The date of the agreement is not stated in the plaint. The further case is that on 28-4-1987 the defendant approached the plaintiff and stated that a portion of the consideration is ready and that the plaintiff must go to the Registrar's Office on the next day. When the plaintiff went to the Sub Registrar's Office, the defendant gave Rs. 13.000/- and promised to pay the balance within a few days. Believing the defendant, the plaintiff signed the document brought by the defendant without reading it. Since the balance amount was not paid the plaintiff approached the defendant and he assured to pay it after his son's marriage. Since even thereafter the amount was not paid, the plaintiff demanded the amount through mediators. Because of this, the defendant filed a suit as O.S. No. 65 of 1987. The plaintiff was not aware of it. Immediately after knowing about that suit she approached Advocate and gave some signed papers to file written statement. Subsequently, after knowing that the written statement did not contain her contentions she field an application for amendment of written statement. Only when that suit came up for hearing and the sale deed executed by the plaintiff was marked as Ext. A3, the plaintiff became aware that the document was a sale deed of the entire plaint A - schedule property and not northern part only. It is stated that she is still in possession of the southern 32 cents. The document was got executed by practising fraud. Hence the suit was filed as an indigent person.

(3.) In the written statement, it is contended that the plaintiff had transferred the entire plaint A - schedule property to the defendant on receipt of consideration. Thereafter, one Suresh Kumar filed O.S. No. 55 of 1987 on the file of the Ponnani Munsiffs Court for partition stating that he was an adopted son of plaintiffs mother. While that suit was pending, Suresh Kumar and the plaintiff herein trespassed into the dilapidated house in the property and then the defendant filed a suit as O.S. No. 65 of 1987 for recovery of possession of the house and For injunction in respect of the land. In the original written statement what was contended was that the house was not assigned and Rs. 15,000/- was with the defendant herein as balance consideration. But when the suit came up for trial the written statement was amended to contend that only 40 cents on the north was assigned to the defendant herein and the balance consideration of Rs. 16,500/- was to be paid to the plaintiff. The suit filed by Suresh Kumar was dismissed. The allegation of fraud is specifically denied. The defendant has effected improvements in the entire property and has enclosed it by fencing. It is also contended that the plaintiff is well educated and capable of understanding what she was doing. She knew to work as a midwife and was attending as home nurse in maternity cases and has acted in films. The plaintiff purchased a property with house in Kunnamkulam and thereafter it was sold and she has entered into an agreement for purchase of another property with one Balakrishnan Nair and his wife.