IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 26.8.2011 Coram The Honble Mr.Justice R.S.RAMANATHAN Second Appeal No.76 of 2008 1. Smt.R.Vitta Bai 2. Smt.Sivagami 3. Smt.Santhi 4. M.Baskaran 5. M.Karnan 6. M.Gopal Appellants vs. 1. Smt.T.Logambal 2. S.Tamilrasan 3. Smt.Alagu Lakshmi 4. Mrs.Saraswathy Respondents For appellants : Mr.Ashok Menon For RR 1 to 3 : Mrs.Hema Sampath, Senior Counsel for Mr.S.Packiaraj For R4 : Mrs.P.T.Asha Prayer:- Second Appeal against the judgment and decree dated 10.8.2007 in A.S.No.439 of 2003 on the file of the Additional District Judge, Fast Track Court II, Chennai confirming the judgment and decree dated 6.8.2001 in O.S.No.3477 of 1995 on the file of the XV Assistant Judge, City Civil Court, Chennai. JUDGMENT Defendants are the appellants. 2. The first respondent filed a suit for recovery of possession of the suit property and for damages. The case of the first respondent was that the suit properties originally belonged to Rajamanickam Mudaliar and on 2.5.1983, the said Rajamanickam Mudaliar executed a registered settlement deed in respect of the suit property in favour of the first respondent viz., his daughter and that settlement deed was acted upon and under the settlement deed, she became the absolute owner and she also took possession of the property and the first defendant Mohanan was allowed to reside in the property as he happened to be the son of Rajamanickam Mudaliar and later, he started questioning the title of the first respondent and the first defendant was also aware of the settlement deed executed by Rajamanickam Mudaliar in favour of the first respondent and therefore, the suit was filed for recovery of possession of the suit properties. 3. The first defendant died during trial and his legal heirs were added as defendants 2 to 7 and they are the appellants in the second appeal. The first defendant viz., Mohanan contested the suit stating that the settlement deed is a forged document and Rajamanickam Mudaliar would not have executed the settlement deed on 2.5.1983 as he was suffering from paralytic stroke and he was not in a position to move out and therefore, the settlement deed must have been forged by the first respondent and the first respondent will not get any title under the settlement. He further contended that even after the death of Rajamanickam Mudaliar, he continued to be in possession of the property and was collecting rents from the other tenants and therefore, the plaintiff cannot claim any exclusive right over the suit property and as one of the legal heirs of Rajamanickam Mudaliar, he is entitled to be in possession of the suit property and hence, the plaintiff is not entitled to the relief of recovery of possession. 4. Both the courts below held that the settlement deed was validly executed by Rajamanickam Mudaliar and that was also proved by examining the attesting witnesses and the first respondent also filed R.C.O.P proceedings against the tenants and obtained orders in her favour and the earlier suit filed by the first defendant and his brother for declaration that the settlement deed is null and void was allowed to be dismissed by the first defendant by not prosecuting the same and thereafter, no steps were taken by the first defendant challenging the title of the first respondent and therefore, the appellants cannot challenge the settlement deed and the first respondent has got title under the settlement deed and she is entitled to recovery of possession. 5. At the time of admission of the second appeal, the following substantial questions of law were framed:- "1) Whether the learned lower appellate court Judge had not erred in concluding that Ex.A3 was not a forged document? 2) Whether the learned lower appellate court Judge was justified in concluding that on the basis of entry 56 of the Schedule in the Limitation Act read along with the averment of forgery in the written statement, the first appeal had to be dismissed and the judgment of the Honourable Trial Court had to be confirmed?" 6. Mr.Ashok Menon, learned counsel appearing for the appellants vehemently contended that admittedly Rajamanickam Mudaliar was suffering from severe paralytic stroke and he was admitted in hospital for the ailment and that was proved by examination of D.Ws.3 to 5 and also, Exs.B1, B11 and B12 and having regard to the ailment of Rajamanickam Mudaliar, he would not have executed the settlement deed as he was not in a position to move out or to convey his intention to anybody and admittedly, after the stroke he was not able to speak and his entire right side of the body was affected and he was not in a position to sign and without appreciating the same, both the courts below have held that Ex.A3 settlement deed was validly executed and it was not a forged one. According to him, DW5 has clearly stated that on the basis of Ex.B1 discharge summary, Rajamanickam Mudaliar was not in a position to sign or speak and he was in the vegetation stage and it was not possible for him to give instructions to write a settlement deed and therefore, the settlement deed must be a forged one. He further submitted that DW3 was a family doctor who saw Rajamanickam Mudaliar immediately after the paralytic attack and DW3 recommended the admission of Rajamanickam Mudaliar in the General Hospital and therefore, having regard to Ex.B1 discharge summary and the evidence of DW3 and DW5, the settlement deed could not have been executed by Rajamanickam Mudaliar while he was in a sound and disposing state of mind and he was not in a position to sign any document and hence, both the courts below erred in holding that Ex.A3 was validly executed and it was a genuine document. He also relied upon the passages from Harrison's Principles of Internal Medicine, Tenth edition in support of his contention that a patient suffering from Hemiplegia could not be in a position to move out and the movements of his body will become static and therefore, Rajamanickam Mudaliar would not have executed Ex.A3 and considering the age of Rajamanickam Mudaliar viz., 90 years, there was no possibility of recovering from that ailment for Rajamanickam Mudaliar to execute the settlement deed in favour of the first respondent. 7. On the other hand, learned Senior Counsel for the first respondent submitted that the execution of Ex.A3 was proved by examining one of the attesting witnesses and there was no cross-examination worth the name to shatter the evidence of PW2. He further submitted that after execution of the settlement, Rajamanickam Mudaliar alongwith the first defendant filed R.C.O.P for eviction of tenants and thereafter, the first respondent filed R.C.O.P for eviction of tenants as evidenced by Ex.A11 and the first respondent was issuing receipts to the tenants for having received rents as evidenced by Ex.A9 and therefore, it cannot be stated that the settlement deed was not acted upon. The learned counsel further submitted that the first defendant and his brother filed O.P.No.517 of 1984 under Order 33 of the Code of Civil Procedure seeking permission of the court to file a suit as indigent person and in that suit, they have challenged the settlement deed executed by Rajamanickam Mudaliar in favour of the first respondent and sought for the prayer of declaration that the settlement deed is void as it was not executed by Rajamanickam Mudaliar and it was a forged one and that O.P was allowed to be dismissed by the first defendant and therefore, the suit is also barred under Article 56 of the Limitation Act. 8. Heard both sides. The main contention of the learned counsel for the appellants was that with regard to the ailment of Rajamanickam Mudaliar as evidenced by Ex.B1 and the evidence of DW3 and DW5, Rajamanickam Mudaliar would not have executed Ex.A3 as he was not in a good mental condition to express his intention to execute any document. The learned counsel for the appellants mainly relied upon Ex.B1 to prove the medical condition of Rajamanickam Mudaliar in the month of January 1983. DW3 and DW5 were examined to prove the medical condition of Rajamanickam Mudaliar. Admittedly, DW3 did not maintain any records and according to his evidence, he treated Rajamanickam Mudaliar on the 1st of January 1983 and he advised the first defendant to take Rajamanickam Mudaliar to General Hospital as he was severely affected by paralytic stroke. DW3 was examined on 11.2.1998 and it is highly improbable for a person to remember about the details of ailment of a patient treated by him fifteen years earlier. Further DW5 was not the Doctor who treated Rajamanickam Mudaliar at the Stanley Medical Hospital and he was not the author of Ex.B1. Ex.B1 was not produced from proper custody and it was produced by DW1, the first defendant. As a matter of fact, DW4 was summoned to produce certain registers, Exs.B11 and B12 from the hospital to prove the date of admission and date of discharge of Rajamanickam Mudaliar in the Stanley Hospital and no steps were taken to summon the case history from Stanley Hospital through DW4. Therefore, having regard to the fact that DW5 was not the author of Ex.B1 and he did not treat Rajamanickam Mudaliar when he was admitted in the hospital, no importance can be given to the evidence of DW5 about the medical fitness of Rajamanickam Mudaliar. 9. Further, the genuineness of Ex.B1 is also doubtful as it was not produced from proper custody and the evidence of DW3 is not sufficient to prove the ailment, medical condition of a patient seen by him fifteen years earlier. In addition to that, there was no evidence adduced by the appellants that after discharge from the hospital, till his death, Rajamanickam Mudaliar continued to be in the same stage and there was no improvement in his health. The evidence adduced on the side of the defendants only stated that Rajamanickam Mudaliar could not have executed the settlement having regard to the ailment suffered by him in the month of January 1983. All these aspects were properly appreciated by the lower appellate court and the courts below have rightly held that the appellants failed to prove that Rajamanickam Mudaliar was not in a good physical condition to execute the settlement deed, Ex.A3. 10. Further, immediately after the death of Rajamanickam Mudaliar, his sons viz., the first defendant and another son filed an O.P seeking permission of the court to file a suit as indigent persons wherein they had challenged the settlement deed executed in favour of the first respondent as void on the ground of forgery as evidenced by Ex.A5 and that was allowed to be dismissed and thereafter, no steps were taken by the appellants to challenge the same. In that lis, they had prayed for declaration that the settlement deed was void and prayed for partition of the suit properties. Nevertheless they did not prosecute the O.P and did not take any further steps seeking partition of their share by filing a fresh suit. 11. Further, it is proved by the first respondent that after the settlement deed, Rajamanickam Mudaliar and the first defendant filed R.C.O.P. No.3284 of 1983 for eviction of tenants as evidenced by Ex.A10 and thereafter R.C.O.P.Nos.248 of 1987, 249 of 1987 and 254 of 1987 were filed against the tenants on the basis of settlement deed and eviction order was obtained. These facts would prove that the settlement deed was validly executed by Rajamanickam Mudaliar in favour of the first respondent and the appellants were also aware of the same and that was the reason for not taking any action for all these years. 12. Further, as per Article 56 of the Limitation Act, a suit has to be filed for declaration that the instrument is a forged one, within a period of three years from the date of knowledge of registration of the instrument. Admittedly, even in the year 1984, the appellants were aware that there was a document alleged to have been executed by Rajamanickam Mudaliar in favour of the first respondent and according to them, it was a forged one and they have also filed the suit for partition and thereafter they did not prosecute the same and allowed the petition to be dismissed for default and hence, under Article 56, they are not entitled to take the plea of forgery regarding Ex.A3 and they lost their right. Hence, the substantial questions of law are answered against the appellants and both the courts below are right in holding that Ex.A3 was validly executed by Rajamanickam Mudaliar in favour of the first respondent and the appellants are not entitled to challenge the same as their claim was barred under Article 56 of the Limitation Act. In the result, the second appeal is dismissed. No costs. 26.8.2011. Index: Yes. Internet: Yes. ssk. To 1. The Additional District Judge, Fast Track Court II, Chennai. 2. XV Assistant Judge, City Civil Court, Chennai. R.S.RAMANATHAN, J. ssk. P.D. JUDGMENT IN S.A.No.76 of 2008 Delivered on 26.8.2011.