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3.O.S.No.1818 of 2008 had been laid by the respondents against the appellant for the relief of declaration to declare that the alleged sale deed said to have been executed by the respondents in favour of the appellant in respect of the suit property dated 27.01.2006, registered as document No.212/2006 on the file of SRO Periamet, as void ab-initio, invalid, null and void and non-est in the eyes of law and for the relief of permanent injunction restraining the defendant or his men, servants, http://www.judis.nic.in agents or anybody claiming through him, from and in any way interfering with the respondents' peaceful possession and enjoyment of the suit property.

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12.Per contra, it is argued by the respondents' counsel that when admittedly, the respondents are illiterate women and unknown of the worldly affairs and the respondents having pleaded fraud and non-est factum and the appellant also having failed to establish that the respondents had executed the three documents relied upon by him knowing the contents thereof and furthermore, the appellant having failed to establish that any consideration flowed through the abovesaid three documents as putforth by him and accordingly, it is his contention that the first appellate Court has rightly placed the entire burden only upon the appellant to establish that there is no fraud or misrepresentation on his part in obtaining the abovesaid three documents in his favour and therefore, according to him, the trial Court had erred in placing the burden upon the respondents instead of the appellant and in such view of the matter, it is his contention that the second appeals preferred by the appellant do not deserve any acceptance and liable to be thrown out.

“15.From the very nature of the pleadings of 4th defendant, it is seen that her defence is one of fraud and non-est factum. It is settled proposition of law, that the principle relating to non-est factum which was made applicable to case where' fraud and non-est factum is alleged, the burden is heavier only on the person who wants to establish the validity of document and in the present case, the Appellate Court had chosen to throw the burden on the wrong side. While considering the burden of proof in cases of non-est factum in Kharbuja Kuer V. Jangbahadur Rai and others AIR 1963 S.C.1203, the Supreme Court http://www.judis.nic.in had clearly laid down that the burden of proof was on the defendant who wanted to sustain the document. The same view was expressed by the Division Bench in the earlier ruling cited above in Chidambram Pillai and others V.Muthamma and another, 1993(1) L.W.466.
“ Evidence Act, 1872 (1 of 1872), Sections 101 to 104 – Burden of proof – Plea of non-est factum – When plea of non-est factum is taken by plaintiff, entire burden lies on defendant to prove that there is no misrepresentation or fraud – In case of illiterate person, entire burden lies on person who relies upon particular document to prove that same has been read and explained to such illiterate person.” .....