IN THE HIGH COURT OF JUDICATURE AT MADRAS Date: 30.9.2010 Coram The Hon’ble Mr.Justice M.JEYAPAUL Second Appeal No.1339 of 2007 Latha (alias) S.Varalakshmi Appellant/Plaintiff vs. M.Raja Respondent/Defendant For appellant : Mr.R.Subramanian for Mr.V.Bhiman For respondent : Mr.K.Swaminathan Prayer:- Second Appeal against the judgment and decree of the learned IV Additional Judge, City Civil Court, Chennai dated 11.7.2007 made in A.S.No.367 of 2005 preferred against the judgment and decree of the learned VI Assistant Judge, City Civil Court, Chennai dated 24.3.2005 made in O.S.No.683 of 2004. JUDGMENT The plaintiff, who lost her case before both the courts below, has preferred the present second appeal. 2. The suit is one for partition filed by the sister as against her own brother. They are the children of one Mohambaram. It is contended by the plaintiff that Mohambaram, the father of the respective parties purchased the suit property at Velachery village in the year 1985 out of the rental income from the property situate at Royapettah. Mohambaram died on 30.7.2007. Claiming that she is entitled to half share in the suit property, the plaintiff has filed the suit for partition of her half share. 3. In the written statement, the defendant, who is none other than the brother of the plaintiff, has contended that the suit property was purchased by his father Mohambaram out of his own income. He executed two registered Wills with respect to the property located at Royapettah Chennai. Mohambaram made a gift settlement in favour of the defendant by means of a registered deed dated 27.1.2000 with respect to the suit property situate at Velachery. Therefore, the defendant claims that he has become the https://hcservices.ecourts.gov.in/hcservices/ absolute owner of the suit property under the registered gift settlement deed. 4. The Trial Court framed two issues. The substantial issue was as to whether the plaintiff was entitled to partition and separate possession of half share in the suit property. The other formal issue framed by the Trial Court was as to what relief the plaintiff was entitled. 5. Before the Trial Court, the plaintiff was examined as PW1 and her husband Sekhar was examined as PW2 and on her side five documents were marked. On the side of the defendant, the defendant alone was examined as DW1 and three documents including the certified copy of the settlement deed, Ex.B3 was marked. 6. The Trial Court found that the plaintiff and her husband, in fact, admitted during the course of cross-examination that the defendant showed the settlement deed after the demise of Mohambaram and they, in fact, read the settlement deed but, quite unfortunately, the plaintiff had not chosen to plead anything about the existence of the settlement deed, in the plaint. The Trial Court also made an observation that there was no pleadings on the side of the plaintiff challenging the settlement deed projected by the defendant. Having accepted the evidence of DW1 in the background of the settlement deed, Ex.B3 marked on his side, the Trial Court came to a decision that the defendant has become the absolute owner of the suit property under the settlement deed, Ex.B3 executed by his father and that therefore, the plaintiff was not entitled to partition of the suit property as prayed for. 7. The first appellate court, having held that the suit property was purchased out of the own funds of Mohambaram, held that the defendant has got absolute right over the suit property under the settlement deed, Ex.B3 executed by his father. Rejecting the plea of the plaintiff that the suit property was purchased out of ancestral nucleus and accepting the contention of the defendant that his father had executed a settlement deed, Ex.B3 in his favour with respect to the suit property, the first appellate court confirmed the judgment and decree of the Trial Court. 8. Learned counsel appearing for the appellant/plaintiff would submit that there is a presumption of intestacy. As the settlement deed was projected by the respondent/defendant, the onus lies on him to establish that he got the property under the settlement deed, Ex.B3 executed by his father. Inasmuch as none of the attestors was examined by the defendant, the courts below should not have considered Ex.B3 which is not even the original settlement deed executed by the father of the respective parties. He would further contend that the settlement deed, Ex.B3 was allegedly executed on 21.7.2000, but, the executant had died within eight days after the https://hcservices.ecourts.gov.in/hcservices/ execution of Ex.B3 and therefore, the suspicious circumstance surrounding the Will has not been dispelled by the defendant by leading cogent evidence. It is his further submission that the appellant had no occasion to challenge the settlement deed as she being the plaintiff was not aware of the existence of the settlement and the settlement deed also was not produced at the time when the written statement was filed by the respondent. Therefore, it is his submission that the Trial Court has misdirected itself and has come to a wrong decision and the first appellate court, even without discussing the materials on record, has simply confirmed the judgment and decree of the Trial Court. 9. Learned counsel appearing for the respondent/defendant would submit that the appellant has come with unclean hands inasmuch as there is suppression of the existence of the Will despite the fact that she and her husband had attested the Will executed by the father. He would also submit that neither in the plaint nor in the evidence, the plaintiff has chosen to challenge the settlement deed, Ex.B3 executed by the father of the respective parties. It is his further submission that there was no occasion for the Trial Court to frame an issue as to the validity of the settlement deed as there was conspicuously no challenge to the validity of the settlement deed focussed by the defendant. As the original of certified copy of the settlement deed, Ex.B3 was with the bank, the defendant could not produce the original document and as a result of which, he had to produce only the certified copy. Inasmuch as the plaintiff had not challenged or disputed the execution of the settlement deed, Ex.B3 by her father, the question of production of the original settlement deed and examination of one of the attestors to the document to prove the same does not arise for consideration, he would further submit. 10. As rightly pointed out by the learned counsel appearing for the respondent, there is no averment in the plaint challenging the settlement, Ex.B3 executed by her father in favour of the defendant. It is not as if she was not aware of the existence of the settlement deed, Ex.B3 as contended by the learned counsel appearing for the appellant. PW2, who is none other than the husband of the plaintiff, has categorically admitted during the course of cross-examination that after the death of Mohambaram, the settlement deed executed by him was shown to him and he had an occasion to read he settlement deed. Under such circumstances, it is quite understandable as to why the appellant has not chosen to challenge the settlement deed, Ex.B3 executed by her father in favour of the respondent. That was the reason why the Trial Court made an observation that the plaintiff, who had admittedly come to know of the existence of the settlement deed, had not whispered anything about the settlement deed executed by the father of the defendant in the plaint. https://hcservices.ecourts.gov.in/hcservices/ 11. The appellant should have at least filed a reply statement to the written statement when the defendant has focussed a settlement deed executed by his father in his favour. Even on a perusal of the chief examination of P.Ws.1 and 2, found in the form of proof affidavit, it is noticed that they had not disputed or challenged the settlement deed, Ex.B3 executed by the father of the plaintiff in favour of the respondent. The Trial Court has rightly not framed an issue as to the validity of the settlement deed as there was virtually no challenge to the settlement deed on the side of the appellant. But, quite unfortunately, when there was no pleadings and no evidence on the side of the appellant, the first appellate court had chosen to formulate a point for determination as to whether the settlement deed, Ex.B3 executed by Mohambaram in favour of the respondent was valid in the eye of law. The first appellate court should not have formulated such a point for determination, when there was no pleading and evidence on the side of the appellant. Without such foundation, the appellant cannot project a new case through the grounds of appeal. At any rate, the first appellate court has rightly rejected the attack made by the appellant as to the validity of the settlement deed, Ex.B3 at the first appellate stage. 12. In this context, it is relevant to refer to section 68 of the Indian Evidence Act, 1872. Section 68 of the Evidence Act deals with proof of execution of document required by law to be attested. If a document is required to be attested, it shall not be used as evidence unless one of the attesting witnesses has been called for the purpose of proving its execution. The proviso to section 68 of the Evidence Act would read that if the execution of such registered document except the Will was not specifically denied, it shall not be necessary to call an attesting witness in proof of execution of such document. 13. In the instant case, the appellant has not chosen to deny the execution of the settlement deed by her father in favour of the respondent. Ex.B3 is found to be a registered settlement deed. Under such circumstances, no necessity under law has arisen for the respondent to call an attesting witness to establish the execution of Ex.B3. 14. When there was no denial of execution of Ex.B3, the respondent has thought it fit to produce only a certified copy of Ex.B3 before the court as the original thereof had been deposited with the bank. The appellant cannot find fault with the production of a certified copy of the settlement deed as the question of proving the execution of the document, by examining one of the attesting witnesses to the settlement deed had not arisen for consideration in this case. https://hcservices.ecourts.gov.in/hcservices/ 15. Both the courts below have rightly come to a decision that the respondent has established by producing Ex.B3 that he has got absolute right over the suit schedule property. 16. Of course, there is a presumption of intestacy. DW1 has spoken to the execution of the settlement deed, Ex.B3 by his father. The appellant had made an unsuccessful attempt to build up a case only through the cross examination of DW1. But, DW1 has completely denied the suggestions that the executant of Ex.B3 was not in a sound state of mind and he had not subscribed his signature to Ex.B3. Even in the absence of the attesting witnesses to Ex.B3, the respondent has every right to speak to the execution of Ex.B3 and establish the same through his evidence. 17. The suspicious circumstance surrounding the execution of the settlement deed should be specifically adverted to by the appellant in her pleadings. But, unfortunately, no suspicious circumstance was projected either through her pleadings or through her evidence. It is not as if the respondent failed to advert to the existence of the settlement deed in his favour. Though he had not produced the settlement deed before the court at the time when he filed the written statement, he claimed absolute right over the suit property only based on the settlement deed executed by his father. The appellant need not have waited for the production of Ex.B3 to make a challenge to the execution of Ex.B3. Even after Ex.B3 was produced, it appears that there was, virtually, no challenge from the appellant. Further, the evidence on record would go to show that the appellant was aware of the existence of the settlement deed, Ex.B3 immediately after the demise of her father. 18. The learned counsel appearing for the appellant cited a decision of the Supreme Court in K.LAKSHMANAN v. THEKKAYIL PADMINI AND OTHERS ((2009) 1 SCC 354). It was held therein "the legality and validity of the said deed of gift was under challenge in the Trial for which the parties have led evidence and therefore, in the present case, the proviso to Section 68 of the Evidence Act did not become operative and functional." 19. That was a case where the plaintiff though not challenged the validity of the gift deed in the plaint and filed any replication to the written statement submitted by the defendant challenging the execution of the gift deed in favour of the defendant, it appears that in the affidavit filed in respect of an application for injunction, the plaintiff has specifically made a challenge to the execution of the gift deed alleged to have been executed in favour of https://hcservices.ecourts.gov.in/hcservices/ the defendant. Under such circumstances, the Supreme Court made an observation that both the parties have proceeded to trial knowing full well that the execution of the gift deed was under challenge. 20. In the instant case, no such challenge to the execution of the settlement deed was made in any of the proceedings before the Trial Court. Even during the course of evidence, the appellant has not let in any evidence touching the execution of the settlement deed. Therefore, the aforesaid ratio laid down by the Supreme Court is quite distinguishable in the special facts and circumstances of this case where no challenge to the execution of settlement deed had emanated from the appellant at any stage of the trial proceedings. The proviso to section 68 of the Act becomes operational and functional in the instant case. 20. Both the courts below have rightly come to a decision based on the materials produced in this case that the plaintiff has no right to claim partition in the suit property as the defendant has established that he has got absolute right over the suit property under the settlement deed, Ex.B3 executed by his father. No substantial question of law has arisen in the second appeal. In view of the above, the second appeal fails and it stands dismissed. There is no order as to costs. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar ssk. To 1. IV Additional Judge, City Civil Court, Chennai. 2. VI Assistant Judge, City Civil Court, Chennai. Copy to The Section Officer, VR Section High Court Madras. + 1 cc to Mr.V. Bhiman, Advocate Sr.72555 + 1 cc to Mr.K. Swaminathan, Advocate Sr.72362 S.A.No.1339 of 2007 MG(CO) EU 26.10.10 https://hcservices.ecourts.gov.in/hcservices/