IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 07.07.2009 CORAM: THE HON'BLE MR. JUSTICE M.DURAISWAMY Second Appeal No.617 of 2000 Seenappa .. Appellant/2nd Dependants Vs 1.R.Krishnapa 2.Kalavathy 3.Prabhu 4.Babu 5.Minor Sivan 6.Minor Sangeetha (Minors R-5 & R-6 rep. By .. R R1 t0 6/Plaintiffs father and Guardian R.Krishnappa) 7.Jayamma .. Respondents/ 3rd defendants SECOND APPEAL filed under Section 100 of the Code of Civil Procedure judgment and decree dated 31.01.2000 made in A.S.No.22 of 1998 on the file of Sub Judge, Hosur confirming the Judgment and Decree dated 18.09.1998 passed in *O.S.No.37 of 1985* on the file of the District Munsif, Court, Hosur. For Appellant : Mr.V.Raghavachari For Respondents : Mr.S.Paarthasarathy S.C.for R1 to R4 For Mr.V.R.Anna Gandhi No Appearance – for R7 J U D G M E N T The above Second Appeal arises against the judgment and decree in A.S.No.22 of 1998 on the file of Sub Judge, Hosur confirming the Judgment and Decree in *O.S.No.37 of 1985* on the file of the District Munsif, Court, Hosur. 2. The second defendant in the suit is the appellant in the above second appeal. The respondents 1 to 6 are plaintiffs and the 7th respondent is the third defendant in the suit https://hcservices.ecourts.gov.in/hcservices/ 3. The plaintiffs filed suit in *O.S.No.37 of 1985* on the file of District Munsif Court, Hosur for partition claiming 1/3rd share in the suit properties. 4. The brief case of the plaintiffs are as follows:- (i) The suit properties originally belonged to one Dasappa. On 10.11.1919, the said Dasappa gifted the suit property in favour of his wife Muniamma and his daughter Goopalli Muniamma under a registered gift deed. On 27.5.1955, the said Muniamma gifted her half share also in favour of her daughter Goopalli Muniamma as she had no male issue under a registered gift deed. Thus, the said Goopalli Muniamma became the absolute owner of the suit properties. The said Goopalli Muniamma died in 1981 leaving behind her husband/first defendant, one son/second defendant and two daughters/3rd defendant and one Kamala. The said Kamala died prior to the filing of the suit. The plaintiffs are Goopalli Muniamma's husband and children. After the death of Goopalli Muniamma, her husband, one son and two daughters are equally entitled to the suit properties. The defendants and the deceased Kamala are equally entitled to 1/4th share in the suit property. Since the said Kamala died prior to the suit, the plaintiffs are entitled to 1/4th share of the Kamala's share. The 1st plaintiff along with the husband of Kamala and the sons and daughters of Kamala are claiming the share of Kamala, who is one of the daughters of the said Goopalli Muniamma. (ii) According to the plaintiffs, the partition deed dated 20.1.1981 was executed between the 2nd defendant, 2nd defendant's father, who is the 1st defendant, the 2nd defendant's mother namely, Goopalli Muniamma. The said sale deed cannot be construed as partition deed since the defendants 1 and 2 were not sharers of the properties belonging to Goopalli Muniamma. Even if the said dated is construed as gift deed as held by this court in its judgment dated 15.10.1996 in second Appeal No.1291 of 1996, the said deed is not true and valid one. That the Goopalli Muniamma was aged more than 65 years when the said deed was executed and she was completely blind for more than five years before the execution of the said deed and she was also ill and bed-ridden and was not in a position to move about. Goopalli Muniamma was extremely weak both physically and mentally and was not able to recognize what she was doing. She was under the care and influence of the 2nd defendant. The 2nd defendant was exercising his influence on her. Goopalli Muniamma died just a week after the execution of the document. When the said deed was said to have been executed, the second defendant appears to have fraudulently obtained the said deed from Goopalli Muniamma. The first defendant was also extremely old and he was also extremely week both physically and mentally and he was also under the care and influence of the second defendant. According to the plaintiffs, it https://hcservices.ecourts.gov.in/hcservices/ was only the second defendant, who is managing the affairs of the family and the first defendant was under the control of the second defendant. According to the plaintiffs, Goopalli Muniamma did not execute the said dated 20.1.1981 while she was in a sound and disposing state of mind. The sale deed dated 20.1.1981 was also not duly attested as per law. It is a fraudulent document created to defraud the plaintiffs and the third defendant's legitimate share in the suit properties. The plaintiffs specifically denied the execution and the attestation of the said deed dated 20.1.1981. According to the plaintiffs, the document will not bind the plaintiffs and their shares in the suit properties. The 1st defendant died on 5.1.1995 leaving behind the plaintiffs and the defendants 2 and 3 as his legal heirs. After his death, his 1/4th share in the suit property, devolved upon the plaintiffs and the defendants 2 and 3. Hence, after the death of the 1st defendant, the plaintiffs share in the suit properties had enlarged to 1/3rd share in all the suit properties. The plaintiffs demanded partition of the suit properties but the defendants refused for amicable partition of the joint family properties. Therefore, the plaintiffs filed the above suit for partition claiming 1/3rd share in the suit properties. 5. The brief case of the defendants are as follows: (i) According to the defendants, in the partition deed dated 20.1.1981, 'A' schedule was allotted to both father and mother of 1st defendant and the 'B' schedule was allotted to the 1st defendant. Item Nos. 1 to 3 and 5 were allotted to the share of Sreenivasaiah, son of Goopalli Muniamma and her husband Ramaiah. In item No.4 of the suit property, Goopalli Muniamma sold 0.05 acres to the husband of the 3rd defendant and he is in possession and enjoyment since then. The husband of the 3rd defendant built two bus sheds in his property in the year 1963 and was collecting the rent from it since then. Apart from the above properties, there was no other properties of Goopalli Muniamma available for any partition. (ii) In the partition deed dated 20.1.1981, both wife and husband have jointly taken the 'A' schedule property. Hence, the 'A' schedule belongs to the 1st defendant and none else. That the defendants 1 to 3 and the wife of 1st plaintiff are entitled to the 1/4th share is denied by the defendants. Kamala did not have any right to succeed to any property, since there is no property of Goopalli Muniamma at all. Hence, the question of succession does not arise. After the marriage of Kamala, she was in her husband's house and was never in possession and enjoyment of the suit properties either physical or constructive. The plaintiffs never resided in the suit house. Plaintiffs are not entitled for any partition which are in the possession and enjoyment of the first defendant who alone has got title except item No.4 which was already sold. The plaintiffs are not entitled to any share in the suit properties. Hence, the defendants prayed for dismissal of the suit. https://hcservices.ecourts.gov.in/hcservices/ 6. At the first instance the trial court after considering the entire case, came to the conclusion that, by virtue of Ex.B2 partition deed dated 20.1.1981, plaintiffs are not entitled to any right and the suit was dismissed. The trial court also found that Ex.B2 is a valid document executed by the deceased especially when the same was executed jointly by her husband. 7. Aggrieved by the judgment and decree of the trial court, the plaintiff preferred appeal in A.S.No.73 of 1996 on the file of Subordinate Judge, Hosur. The lower appellate court held that over the suit properties, the second defendant had no antecedent right. Therefore, Muniamma can execute only a sale or gift. Since she has not executed any such document, Ex.B2 partition is of no avail and therefore, Goopalli Muniamma continued to be the owner. The lower appellate court also found that Goopalli Muniamma died few days after Ex.B2 and it cannot be said that the deceased knew the contents of what she has executed. Taking that view, a preliminary decree was passed, declaring that the plaintiffs are entitled to 1/4th share in the suit properties. 8. Aggrieved over the judgment and decree in A.S.No.73 of 1996, the second defendant filed second appeal in S.A.No.1291 of 1996. This court by judgment dated 15.10.1996 in the said second appeal, considered the legal effect of Ex.B2, after considering various decisions relied on by the learned counsel for the appellants and respondents this court ultimately remanded the suit to the trial court since the trial court as well as the appellate court failed to consider whether Ex.B2 was properly executed and proved. This court found that the burden is only on the defendants to prove the validity of Ex.B2. This court also found that Ex.B2 can be construed as a gift deed and the nature of proof must be in conformity with the said construction of the document. On these lines, this court remanded the matter to the trial court. On remand, the plaintiffs filed application in I.A.No.164 of 1998 to amend the plaint and the said application was dismissed and the plaintiffs preferred Civil Revision Petition in C.R.P.No.3293 of 1997 and by order dated 7.12.1997, this court allowed the Civil Revision Petition and permitted the plaintiffs to amend the plaint. The amended plaint contains fresh paragraphs 4a, 4b and 4c by way of introduction of new facts. 9. The 2nd defendant filed his additional written statement on the following grounds: (i) According to the 2nd defendant, the facts contained in these new paragraphs 4a, 4b and 4c are culled out of the evidence on record and to fill up the gaps in the suit filed by the plaintiffs. Since this court found that the document dated 20.1.1981 is a gift https://hcservices.ecourts.gov.in/hcservices/ deed and the same has been acted upon, the averments in paragraph Nos. 4a, 4b and 4c were introduced. (ii) According to the 2nd defendant, the document dated 20.1.1981 has been created with full knowledge and consent of all the parties to the document and the same has been acted upon from the date of document. That Goopalli Muniyamma was blind for more than five years before the document came into existence has been denied by the 2nd defendant. That her health condition was good and there was neither force nor undue influence in the execution of the document. The 2nd defendant also denied that Gooppali Muniyama was suffering from extreme physical and mental weakness. Her death was due to natural causes of old age. The 2nd defendant also denied that both father and mother did not execute the document while in sound and disposing state of mind. The document was duly and properly attested. Except saying that the plaintiffs are denying the due execution and attestation of the document, it is not stated why and how it is invalid. (iii) According to the 2nd defendant, the shops and buildings are not joint family properties. The 1st defendant had voluntarily executed a will of his properties in favour of grand sons on 19.8.1985. Therefore, it is incorrect that the share of the 1st defendant would devolve on the plaintiffs and also on the defendants 2 and 3. It is incorrect to contend that the share of the plaintiffs would get enlarged as 1/3rd in all the suit properties. The share of the 1st defendant vested in legatees under the will dated 19.8.1985 executed by the 1st defendant in favour of his minor grand sons. The will came into existence and the properties covered under the will vests with the legatees through their legal guardian. (iv) According to the 2nd defendant, the amendments contained in paragraphs 4a, 4b and 4c seek to create a new case. After the execution of sale deed on 21.1.1981, the 2nd defendant, at his cost and expense, constructed 7 shops and 17 houses in S.No.121 A/1A and he is in continuous possession and enjoyment of the suit properties since then. Therefore, the 2nd defendant prayed for dismissal of the suit. 10. Before the trial court, on the side of the plaintiffs, 4 witnesses were examined and 4 documents Exs. A1 to A4 were marked. On the side of the defendants, 3 witnesses were examined and 11 documents Exs. B1 and B11 was marked. 11. Heard Mr.V.Raghavachari, learned counsel appearing for the appellant and Mr.S.Parthasaraty learned senior counsel for the respondents. https://hcservices.ecourts.gov.in/hcservices/ 12. At the time of admission of the above Second Appeal, the following substantial questions of law arose for consideration:- i)Whether the courts below are erred in rejecting Ex.B2 when its execution had been upheld by the High court and due execution had been proved by D.W.2 and D.W.3 ? 13. The learned counsel for the appellant also raised the following substantial questions of law in the memorandum of grounds: "i)Whether the courts below are right in disbelieving Ex.B2, when its execution had been upheld by the High court and due execution had been proved by examination of P.W.2 and P.W.3? ii) Whether the courts below have not misplaced the burden of proof while rejecting Ex.B2 and should it not have seen that the obligation to disprove the document is upon the plaintiffs particularly when they have alleged that Goopali Muniamma was not in sound disposing state of mind and health and the document had been secured under fraudulent circumstances? iii) Whether the courts below ought not to have held that under proviso to section 68 of the Evidence Act in the absence of specific denial the attesters to the document need not be examined? iv) Whether the courts below ought not to have held that the plaintiffs admitted the execution of Ex.B2 and under such circumstances, should it not applied section 70 of the Evidence Act and hold against the plaintiff's as regards the execution? v) Whether the courts below ought not to have concluded that the attestation of a document stands proved by examination of the scribe (DW2) and DW3, the identifying witness? vi) Whether the courts below ought not to have concluded that in the absence of cross examination of DW2 and DW3 as regards the execution of Ex.B2, the same stands conclusively proved and the respondents are estopped from challenging it? vii) Whether the courts below ought not to have applied the elementary principle that in absence of cross- https://hcservices.ecourts.gov.in/hcservices/ examination on a crucial issue the same is deemed to have been admitted and on the facts of the case there is no cross examinations as regards the attestation and should not the courts below conclude that Ex.B2 cannot be impeached? viii) Whether the courts bellow have not misplaced the burden of proof upon the appellant, when the plaintiffs have challenged the mental capacity of Goopali Muniamma? xi) Whether the courts are right in decreeing the suit when proper and necessary to the proceedings viz., the legatees of Ramaiah have not been made parties in the suit? x) Whether the courts below are right in decreeing the suit in respect of suit item No.4 when the appellant had established he had raised extensive structure from and out of his earnings? 14. Mr.V.Raghavachari, learned counsel appearing for the appellants contended that once this court in S.A.No.1291 of 1996 found that Ex.B2 document can be construed as a gift, the courts below ought not to have gone into that question again; that the genuineness of the document cannot be subjected to scrutiny before the court below when this court rejected the case of the respondents of having secured the document by undue influence; that the burden of proof as regards in-capacity of Goopali Muniama is upon the respondents/plaintiffs and that they have not let in any evidence to establish that the said deed had been secured by means as alleged by them; that the attestors were not available at the time of trial; that the appellant/2nd defendant had examined himself, the scribe and the identifying witness to the document to prove the case of the appellant/2nd defendant, on the contrary, none was examined at the instance of the respondents/plaintiffs except P.W.4; that after even in the amendment of pleadings, no evidence had been adduced to attack Ex.B2 and under section 68 of the Indian Evidence Act, except in case of will, in cases of all other documents required to be attested in the absence of specific denial, there is no necessity to examine the attestors; that in the absence of cross examination of DW2 and DW3 as regards the execution of Ex.B2, the same stands conclusively proved and the respondents are estopped from challenging it. 15. Learned counsel for the appellant relied on the following decisions for genuineness of registered will: (i) 1995 (2) SCC 664 (P.P.K.Gopalan Nambiar v.P.P.K.Balakrishnan Nambiar and others). https://hcservices.ecourts.gov.in/hcservices/ From the above judgment it could be seen that though it is the duty of the propounder of the will to prove the will and to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubling mind. In the present case the suspicion entertained by the trial court and the High court was without any basis. (ii) In AIR 1999 SC 2203 (Brij Raj Singh (dad) by L.Rs. & ors. v. Sewak Ram and anr.), it is held as follows: "27. We are of the view that the above extracts from the judgments of the various high courts do reflect the correct position in law. In the case on hand P.W.6 has categorically stated that he has signed as scribe, signed as identifying witness. We also find his signatures at three places. Nothing was elicited from this witness to disbelieve his statement in chief examination. It is not denied that the deed was registered as per the Indian Registration Act. Therefore, even on merits the appellant has established the due execution and attestation of the gift deed according to law. We find from the original gift deed at the first apge by the side of the signatures of the donor,two witnesses have subscribed their signatures. We, therefore,hold that the lower appellate court and the High court went wrong in allowing the defendants to raise the plea of non-compliance of section 123 of the Transfer of Property Act and in holding that the gift deed was not proved." (iii) 2004(7) SCC 398 (Gounti Satya Reddi v. Govt of Andhra Pradesh and others). From the above judgment it has been held that in the case of non examination of attesting, could not be a circumstance strong enough to hold that a false document was thereby created. 16. Learned counsel for the appellant relied on the following judgments for presumption under section 114 of Indian Evidence Act. Now, It will be appropriate to extract the provisions of Section 114 of Indian Evidence Act which reads as follows: 114.Court may presume existence of certain facts.- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. (i) AIR(1996) SC 2677 (Ajay KrishaShinghal and others v. Union Bank of India and others), in paragraph 12 it has been held as follows: https://hcservices.ecourts.gov.in/hcservices/ "12. After perusing the records and satisfying ourselves and also considering various cogent and weighty reasons given by the learned Judges, we are of the opinion that the substance of the notification under Section 4(1) was duly published in the locality. It is not the law and could and would not be the law that publication of the substance of Section 4(1)notification in the locality should been established beyond shadow of doubt and benefit should be extended to the owner or interested person of the land. Obvious thereto, presumption under Section 1149e) of Evidence Act has been raised that official acts have been properly done unless proved otherwise. We are satisfied that it was properly done. It is futile to reiterate the settled legal position that the publication of the notification under Section 491) in the Gazette and substance thereof in the locality are mandatory requirements and the omission thereof renders the notification void. In Khub Chand's case, this Court had held the same view. But as recorded earlier, since substance of the notification was published in the locality, the second limb of the requirement also stands complied with. Considered from this perspective, we of the considered view that the High Court has not committed any error of law." (ii) 2000(4) CTC 11 (D.J.Dhanraj v. D.Venkatarathinam and another) In the above judgment this court held that if purchaser did not make any allegations of fraud or collusion against bailiff or against court official, the presumption that official acts are performed regularly will apply in such case. (iii) In 2008(1) MLJ 193(SC)(Asokan v. Lakshmikutty and ors.), the Apex Court held as follows: "18. When a registered document is executed and the executors are aware of the terms and nature of the document, a presumption arises in regard to the correctness thereof. (See Prem Singh and ors. v. Birbal and ors. MANU/SC/8139/2006) When such a presumption is raised could with the recitals in regard to putting the donee in possession of the property, the onus should be on the donor and not on the donee. iv. In Alavi (supra) paripoornan, J. (as His lordship then was) held: "It is settled law that where the deed of gift itself recites that the donor has given possession, of the https://hcservices.ecourts.gov.in/hcservices/ properties gifted to the donee, such a recital is binding on the heirs of the donor. It is an admission binding on the donor and those claiming under him. Such a recital raised a rebuttable presumption and is ordinarily sufficient to hold that there was delivery of possession. Therefore, the burden lies on those who allege or claim the contrary to prove affirmatively that in spite of the recitals in the gift deed to the effect that possession has been delivered over, in fact, the subject matter of the gift was not delivered over to the donees. 20. Section 91 of the Indian Evidence Act covers both contract as also grant and other types of disposal of property. A distinction may exist in relation to a recital and the terms of a contract but such a question does not arise herein inasmuch as the said deeds of giftwereexecuted out of love and affection as well as on the ground that the donee is the son and successor of the donor and so as to enable him to live a good family life. 21. Could they now turn round and say that he was to fulfill a promise? The answer thereto must be rendered in the negative. It is one thing to say that the execution of the deed is based on an aspiration or belief, but it is another thing to say that the same constituted as onerous gift. What, however, was necessary is to prove undue influence so as to bring the case within the purview of Section 16 of the Indian Contract Act. It was not done. The deeds of gift categorically state, as an ingredient for a valid transaction, that the property had been handed over to the donee and he had accepted the same. In our opinion, even assuming that the legal presumption therefore may be raised, the same is a rebuttble one but in a case of this nature, a heavy onus would lie on the donors." 17. With regard to burden of proof and plea of undue influence, the learned counsel for the appellant relied on the following judgments. (i) AIR 1963 SC 1279 (Ladli Prasad Jaiswal