A daughter's claim to partition of her father's property was resisted on the basis of a settlement deed. The court held the deed unproved and granted a preliminary decree for partition of her one-third share, without costs.
Preliminary decree for partition of the plaintiff's one-third share in the suit property; no costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 10.04.2015
CORAM
THE HONOURABLE Mrs. JUSTICE. S.VIMALA
C.S.No.260 of 2011
Reserved on : 25.02.2015 Pronounced on: 10.04.2015 Tamilkodi ... Plaintiff Vs. 1. N.Kalaimani 2. Kalaiselvi ... Defendants PRAYER : This suit filed under Order IV Rule 1 of Original Side Rules read with Order VII Rule 1 of C.P.C. praying to (i) pass a preliminary decree declaring 1/3rd share of the plaintiff to the suit schedule mentioned property
property by metes and bounds and allot one third share to the plaintiff.
(iii) to award costs of the proceedings.
For Plaintiff :Mr.V.Raghavachari For Defendants :Mr.M.V.Karunakaran for Mrs.K.Vennila
JUDGMENT
The suit has been filed by the plaintiff claiming 1/3rd https://hcservices.ecourts.gov.in/hcservices/ share in respect of the suit property through partition.
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Street, Lake area, Nungambakkam, ground measuring 2560 sq.ft.
with construction of three floors of an area of 3330 sq.ft.
3. Brief Facts :-
(i) The Plaintiff and the defendants (D1 and D2) are the
legal heirs of late N.Natarajan and Ponnammal. The Plaintiff's father died on 01.01.2010. The plaintiff is the eldest daughter. Out of hardwork, the plaintiff earned a lot and substantially contributed the same to her father towards
purchase of the suit property. However, she is not asserting
any independent right except as the heir of her deceased parents.
(ii) After the death of the father, the plaintiff issued
notice dated 05.11.2010 seeking partition of the suit property. The first defendant issued a reply dated 25.11.2010 stating that he is not willing for effecting any partition. Hence, the plaintiff was compelled to file the suit.
first defendant:-
(i) The suit property originally belonged to the
plaintiff's father by virtue of the sale deed dated 15.12.1966. After purchasing the property, he obtained sanctioned plan for construction of the building. The parents borrowed amount of Rs.9480/- from the Government servant's Co-operative Mortgage Society on 20.06.1968 for the purpose of constructing the ground floor. This was repayable in 186 instalments at the rate of Rs.95.10/-.
(ii) Thereafter, the father borrowed Rs.11,000/- for the
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construction of the first floor, on 02.09.1969. Thereafter, for the purpose of putting additional constructions, he borrowed a sum of Rs.1,00,000 from Nungambakkam Saswatha Dhaana Rakshaka Nidhi Limited and executed a mortgage deed dated 26.06.1989. This was executed along with his son Kalaimani and wife Ponnammal.
(iii) Apart from that, the father was paying the water tax, property tax and electricity charges.
(iv) The deceased Natarajan executed a registered Will
dated 28.02.2002, bequeathing the entire property to 1.Ezhil, 2.Elangudi and 3.Minor Kalaivani, who are the daughters of the
first defendant. Later the Will was cancelled by virtue of the
cancellation deed dated 20.12.2006 . On the day of revocation,
the father executed a settlement deed dated 20.12.2006, settling
the suit property in favour of Kalaimani giving him life
interest and thereafter absolute rights to the daughters of
Kalaimani. Therefore, the property belongs to the first defendant and his daughters.
(v) The plaintiff has absolutely no right over the suit property. The plaintiff has knowledge about the settlement deed
and in fact she was abusing her father for having executed the settlement deed. Therefore, the suit has to be dismissed.
1.Whether the plaintiff is entitled to a declaratory https://hcservices.ecourts.gov.in/hcservices/
decree with regard to 1/3rd share as claimed by him?
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2.whether the deceased N.Natarajan executed the Will on 28.02.2002 and cancelled the will on 20.12.2006?
3.Whether N.Natarajan had executed the settlement deed on 20.12.2006 creating life interest in favour of the first defendant and vested remainder to the legal
heirs of the deceased first defendant?
should be allotted one such share out of it.
property is not divisible as it belongs to him and his legal
heirs according to the settlement deed executed by his father.
belonging to the father and therefore, it is divisible or the
father executed documents in favour of the defendant and his legal heirs and therefore, the property is not divisible viz a
viz the plaintiff, is the main issue to be decided.
defendants as sister and brothers is an admitted fact. They are the legal heirs of the deceased N.Natarajan and Ponnammal.
father originally executed a will and later on cancelled the
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same on 20.12.2006 and thereafter executed a settlement deed on the very same date i.e. on 20.12.2006 bequeathing life interest in favour of the first defendant and the vested remainder in favour of the legal heirs of the first defendant.
father of the Plaintiff and the defendants is an undisputed fact. Therefore, the only question to be decided is whether the
first defendant has proved the execution of the settlement deed in favour of him and his legal heirs.
plaintiff that the defendant did not examine attesting witness to the settlement deed and therefore the settlement deed has not
been proved and therefore the first defendant cannot claim any title based upon the settlement deed.
counsel for the defendant that the execution of the settlement deed is not specifically denied by the plaintiff and therefore
it is not necessary for the first defendant to examine any of the attesting witnesses.
attention of the Court to Section 68 of the Indian Evidence Act. https://hcservices.ecourts.gov.in/hcservices/
“Section -68. Proof of execution of
6 document required by law to be attested.—If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: 1 [Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied .]
Section 68 deals with proof of a document which is required by
law to be attested. Deed of settlement is a document which requires attestation. If the deed is a document required by law to be attested, it is mandatory that at least one attesting witness should have been examined. This mandatory requirement https://hcservices.ecourts.gov.in/hcservices/
would be operative only when the execution is specifically
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denied (except in the case of Will).
prescribed by Section 63 of the Indian Succession Act. Section 68 of the Evidence Act prescribes a mode of proving the Will. When the law prescribes special mode of proof for Will, de hors the objections raised or not, a duty is cast upon the parties to
prove the will, in the manner prescribed. As the will is a
document required by law to be attested, it shall not be used in evidence until at least one attesting witness is examined. In
order to prove due attestation of the will, the propounder of
the will has to prove that two witnesses saw the testator signing the will and that they themselves signed the will in the presence of the testator.
claims title based upon the settlement deed. It is his case that the date of cancellation of will and the date of settlement deed
is one and the same. When the execution of the settlement deed
is preceded by the cancellation of the will it is necessary that
at least the Will, the cancellation of the will are the
documents which require closer scrutiny. The will dated 28.02.2002 bequeathing the properties in favour of the legal heirs of the first defendant is marked as Ex.D26. The
cancellation of the will is dated 20.12.2006 (which is marked as https://hcservices.ecourts.gov.in/hcservices/ Ex.D27).On the very same date, the father is claimed to have
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executed the settlement deed under Ex.D28. Admittedly, the only witness on the side of the defendant is the first defendant Kalaimani through whom 70 documents have been marked.
prove the will. Strictly speaking will need not be proved as the first defendant is not basing his claim on the basis of will,
but only on the basis of the settlement deed. But, the
settlement deed follows the cancellation of the will. It is a different matter if the first defendant is exclusively placing reliance upon the settlement deed alone. when the cancellation of the will has a bearing on the execution of the settlement deed the first defendant should have examined at least one attesting witness to prove the execution of the will which would have the effect of strengthening the existence of the settlement deed. Be that as it may, it is necessary to look into
the necessity of adducing evidence of an attesting witness in respect of the settlement deed.
first defendant that the execution of the settlement deed is not specifically denied by the plaintiff and therefore there is no necessity to examine the attesting witness. Whether the plaintiff specifically denied the execution of the settlement
deed is the primary issue to be considered.
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not disclose the existence of the settlement deed. The plaintiff being the first person to approach the Court there was no opportunity to deny the settlement deed. It is pointed out
that in the evidence, the execution of the settlement deed has been denied by the plaintiff, which was the first opportunity to deny.
efforts to point out that when the plaintiff has sought for partition, the plaintiff must have clearly described the
property. The grievance was that the property was not fully and
completely described. But it is admitted in the evidence of D.W.1 that he did not mention anything about the existence of
will, cancellation of will and settlement deed, in his reply
notice. In the written statement only he has mentioned about
those three documents. Therefore, there is no opportunity for the plaintiff to specifically dispute the execution of the settlement deed.
upon the following decisions in support of the proposition that https://hcservices.ecourts.gov.in/hcservices/
a) when the plaintiff has not specifically disputed the
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execution of the settlement deed, there is no necessity to examine the attesting witness; b) in the absence of pleadings, there can be no evidence and that no amount of evidence can be looked into in the absence of pleadings.
(i) AIR 1950 Madras Page 486 (Periasami Kachirayar and Ors. vs. Varadappa Kachirayar)
“That the nature of a tenancy mentioned in a will may be regarded as a statement made in the course of a transaction by which certain property was bequeathed to a legatee under the will and that consequently the statement made in the will may be taken as evidence under Section 13, Evidence Act.”
(ii) AIR 2005 SC 4362 (Pentakota Satyanarayana and Ors.
vs. Pentakota Seetharatnam)
“18. A perusal of Ex.B9 (in original) would show that the signatures of the Registering Officer and of the identifying witnesses affixed to the registration
endorsement were, in our opinion, sufficient attestation within the meaning of the Act. The endorsement by the sub-registrar that the executant has acknowledged before him execution did also amount to attestation . In the original document the executants signature was taken by the sub-registrar. The signature and thumb impression of the identifying witnesses were also taken in the document. After all this, the sub-registrar signed the deed. Unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed https://hcservices.ecourts.gov.in/hcservices/
the world cannot say whether it is his Will or not and
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this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and the testament of departed testator.”
others).
another)
“12. .... The ordinary rule of law is that evidence is to be given only on a plea properly raised and not in contradiction of the plea. Here the pleas were made on two different occasions and contradicted each other. The evidence which was tendered contradicted both the pleas. The source of the information was not attempted to be proved and the witnesses who were brought were found to be thoroughly unreliable. In these circumstances we do not propose to refer to the evidence in this judgment any- more.”
(v) AIR 1971 SC 2548 (Dattatraya vs. Rangnath Gopalrao https://hcservices.ecourts.gov.in/hcservices/
Kawathekar (Dead) by his legal representatives and Ors.)
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“4. As seen earlier both the first defendant as well as the second defendant had pleaded that there was a partition in the family. Therefore the only question that fell for decision was whether the suit properties fell to the share of the first defendant or the second defendant. There was no basis in the pleadings for the finding of the learned District Judge that the suit properties were the joint family properties of the first and the second defendants. This was entirely & new case made out by the District Judge. The pleadings in the case did not permit the learned District Judge to come to such a conclusion. Hence in our opinion the High Court was justified in reversing that finding of the first appellate Court. An attempt was made before us to justify the finding of the first appellate Court that the suit properties were joint family properties of defendants 1 and 2 by referring to the evidence in the case. We are not satisfied that there is any evidence to support that case. Further a case not pleaded cannot be made out by
evidence.”
(vi) AIR 1987 SC 1242 (Ram Sarup Gupta (Dead) by Lrs. vs.
Bishun Narain Inter College and Ors.)
“6. The question which falls for consideration is whether the respondents in their written statement have raised the necessary pleading that the license was irrevocable as contemplated by Section 60(b) of the Act and, if so, is there any evidence on record to support that plea. It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally https://hcservices.ecourts.gov.in/hcservices/ settled that no party should be permitted to travel
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beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it ..........”
(vii) 1995 Supp (4) Supreme Court Cases 422 (Syed and
Company and others vs. State of Jammu & Kashmir and others)
“7. In opposition to this, the learned counsel
for the respondent would urge by looking at the entire pleadings of the State before the prescribed authority, it can be seen nowhere, it has been stated as to what exactly was the basis for claiming the price of timber extracted by the respondent. Without specific pleadings in that regard, evidence could not be let in since it is a settled principle of law that no amount of evidence can be looked unless there is a pleading.”
(viii) 1995 AIR SCW 3670 (Khagendra Lall Dutta and another vs. Jacob Sole Jacob)
“6. In the absence of any specific plea in the written statement qua the appellant that a sub-tenancy was created between the appellant and the respondent by acquiescence of the appellant, no amount of evidence can be looked into in that behalf . It is a well settled principle of law and needs no elaborate consideration. Shri Ganguli fairly conceded that there
is no such specific plea. He, however, pointed out https://hcservices.ecourts.gov.in/hcservices/ that in para 2 of the written statement plea of
limitation, estoppel etc. had been raised, which would
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show that the respondent has pleaded acquiescence in the sub- tenancy as well. We cannot agree, as the pleas advanced in para 2 are too general and akin to those pleas which are regularly taken virtually in all written statements.
(ix) AIR 1999 SC 1666 (Prataprai N.Kothari vs. John Braganza)
“10. Reliance was sought to be placed on the additional evidence admitted by the learned Single Judge during the pendency of the appeals to prove that the appellant had title to the property. It is settled law that in the absence of any plea, no evidence is admissible. The Single Judge of the High Court overlooked that when there was no plea or issue on the question of title, no evidence whatever was admissible regarding the same. He acted beyond his jurisdiction in permitting additional evidence to be filed in appeals.”
Braganza)
“10. Reliance was sought to be placed on the https://hcservices.ecourts.gov.in/hcservices/ additional evidence admitted by the learned Single Judge during the pendency of the appeals to prove that
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the appellant had title to the property. It is settled law that in the absence of any plea, no evidence is admissible . The Single Judge of the High Court overlooked that when there was no plea or issue on the question of title, no evidence whatever was admissible regarding the same. He acted beyond his jurisdiction in permitting addditional evidence to be filed in appeals.”
“10. ..... The pleading raised in the case does not refer to either Rule 39 or 56 of the Rules much less to the 'pamphlet showing illustrative cases of valid and invalid postal and ordinary ballot papers' issued by the Election Commission of India, nor any specific allegations are found in the case. The allegation made in the course of the petition is that there is wrong acceptance of invalid votes polled for respondent No. 1. It is not made clear as to how many votes are liable to be rejected for using wrong instrument by the voters for expressing their preference. There is no further indication as to how many of such votes had been polled in favour of respondent No. 1 so as to materially affect the result of the election. In the absence of such plea the learned Judge could not have granted the relief of recount. Therefore, the view taken by the High Court that the pleadings are insufficient to order recount is perfectly in order. So far as the evidence that had been adduced in the case is concerned, it need not have been looked at by the learned Judge in the absence of appropriate pleadings in that regard.
https://hcservices.ecourts.gov.in/hcservices/ However, Shri E.M.S. Anam, the learned Counsel for the appellant, submitted that the fact that votes in the
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two polling stations at Varikole school and Koothmannoor school had been cast by using a wrong instrument was not in dispute and the evidence of the Returning Officer clearly indicated the use of the wrong instrument in the two polling stations which amounted to an admission in the case and, therefore, even in the absence of an appropriate pleading in that regard the evidence could be looked at. We fail to appreciate this argument. Unless the appellant had put forth his case in the pleading and the respondents are put on notice, the respondents cannot make an admission at all and there is no such admission in the course of the pleadings. If the pleadings did not contain the necessary foundation for raising an appropriate issue, the same cannot go to trial, Any amount of evidence in that regard, however excellent the same may be, will be futile. Therefore, the learned Counsel is not justified in making the said submission and the same is rejected. The learned Judge noticed that the appellant, though had raised objection in this regard in the application for recount, did not reiterate the same in second application much less any averment is made in the petition. The learned Judge held, in our view, rightly that there is no pleading in this regard and the evidence adduced cannot be looked into as no issue thereto arises.”
(xii) 2000 (10) SC 583 (Ravinder Singh vs. Janmeja Singh &
Ors.)
“7. The election petition is singularly silent of any such averment that the returned candidate, even https://hcservices.ecourts.gov.in/hcservices/
"if, it be assumed for the sake of the arguments, had
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published and distributed certain documents, (Annexures A-1 to A-7), as alleged in the election petition either himself or through any other persons with his consent, that those statements were false and that the returned candidate either believed them to be false or did not believe them to be true, though in paragraph 9 of the election petition, which has been verified as correct on the basis of legal advice, this requirement emanating from Section 123(4) has been mentioned but without any assertion that the returned candidate in this case, published the false statements knowing them to be false and/or not believing them to be true. The submission of Mr. Talwar, that at the trial, the petitioner could have said so in his evidence is futile. It is an established proposition that no evidence can be led on a plea not raised in the pleadings and that no amount of evidence can cure defect in the pleadings .”
(xiii) 1929 Indian Law Reports 53 Madras 119 (Thayammal and two others vs. Muthukumaraswami Chettiar)
“Act XXXI of 1926, which amends Section 68 of the Indian Evidence Act, relates only to processual law and not to substantive law. Hence, it is retrospective in its operation. If the execution of a deed required to be attested by law is not denied by the executant, it need not be proved by any attesting witness, though it might have been executed before the Act.”
(xiv) AIR 2001 SC 2040 (Surendra Kumar Vs. Nathulal and
another)
“16. In the present case there exists a
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registered deed of gift signed by the donor and attested by two witnesses. Therefore, the requirement of the law as incorporated in the Section is satisfied. Section 68 of the Indian Evidence Act, 1872 makes a provision regarding proof of execution of a document required by law to be attested. Therein it is laid down that :
“If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.”
“Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.”
(Emphasis supplied)
duly proved since one of the attestors has not been examined as witness. Indeed the certified copy of the registered deed of gift was produced in the trial
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Court along with an application filed by the plaintiff in the previous suit, suit No.69/70(4/76) that the same may be called for. The trial Court, being satisfied about the reason for non-production of the original document, marked the certified copy of the deed of gift as Exhibit-3”.
(xv) AIR 1992 Kerala 261 (Adanganpuravan Assankutty's
daughter Kadiya Umma and others vs. Adanganpuravan Rayankutty's son Mayankutty and others)
“15. I have carefully gone through the pleadings in para 5 of the plaint on which great reliance was placed by counsel for plaintiffs, but I am unable to see anything in the pleading which can be described as specific denial of execution of the documents. The
plea that plaintiffs were not aware of the execution of the documents would not amount to specific denial of execution. There is no other pleading, which can be described as specific denial of execution. The decisions referred to above fully support this view. In the circumstances, in my opinion, the lower appellate Court went wrong in holding that since there is want of proof of execution, the impugned gift deeds should fail.”
(xvi) AIR 2000 SC 426 (Ishwar Dass Jain (Dead) Thr. LRS. Vs. Sohan Lal (Dead) by Lrs.)
“POINT 2: We shall first deal with the proof of the certified copy of the deed of mortgage. So far as the mortgage deed is concerned, the plaintiff filed a https://hcservices.ecourts.gov.in/hcservices/ certified copy and called upon the defendant to file the original. The defendant refused to do so. The
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plaintiff, therefore, proceeded to file the certified copy as secondary evidence under sub-clause (a) of section 65 of the Evidence Act. This was certainly permissible. The mortgage is a document required to be attested by two attestors under section 59 of the Transfer of Property Act and in this case it is attested by two attestors. The mode of proof of documents required to be attested is contained in sections 68 to 71 of the Evidence Act. Under section 68, if the execution of a document required to be attested is to be proved, it will be necessary to call an attesting witness, if alive and subject to the process of Court and is capable of giving evidence. But in case the document is registered-then except in the case of a will - it is not necessary to call an attesting witness, unless the execution has been specifically denied by the person by whom it purports to have been executed. This is clear from section 68 of the Evidence Act. It reads as follows:
Section 68: If a document is required by law to be attested, it shall not be used as evidence until one attesting witness atleast has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied.
In the present case, though it was stated in the written statement that there was no relationship between the parties as mortgagor and mortgagee, the
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defendant admitted in his additional pleas in the same written statement that the mortgage deed was executed but he contended that it was executed to circumvent the Rent Control legislation. In fact, in his evidence as DW2 the defendant admitted the execution of the mortgage. It must therefore be taken that there was no specific denial of execution. Hence it was not necessary for the plaintiff to call the attestor into the witness box, this not being a will. The plaintiff could therefore not be faulted for not examining any of the attestors. Hence the mortgage stood proved by the certified copy. The Courts below were right in accepting that the deed was proved. Point 2 is decided in favour of plaintiffs- appellants.”
https://hcservices.ecourts.gov.in/hcservices/ 20. There is one more circumstance available in this case
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which would amount to specific denial regarding execution of settlement deed, that is by challenging the very existence of the attesting witness. It would be appropriate to point out important admissions made in the evidence of D.W.1, during cross examination and the admissions are as follows:
Ex.D27 and Ex.D28.
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10.The attesting witness signed in Ex.D27 and Ex.D28 are the friends of my earlier servant maid's husband.
From the admissions made, it is clear that the first defendant wanted to play hide and seek game with the Court and that he was not inclined to divulge the truth before the Court. When it is pointed out that one of the attesting witnesses could not have
been the person who has purported to have signed as attesting witness, it is the duty of the defendant to have produced and examined at least one attesting witness. When the plaintiff P.W.1 has stated that the document is spurious one, then the burden shift on defendant to show that the document is a genuine one. When the questions raised in the cross examination of D.W.1 regarding the availability / existence of the attesting witness, then it is the duty of the first defendant to have examined the attesting witness. He has not done so. The Court is not a
place to make use of the opportunity by taking refuge under the procedural law to hide the truth and to defeat the rights of the parties. Once the document discloses that whether a particular
person could have signed as an attesting witness or not, the first defendant should have come forward to examine him at least after his cross examination. That willingness to examine the
witness was not there. Therefore, the inference is that the examination of the attesting witness would be against the
https://hcservices.ecourts.gov.in/hcservices/ interest of the first defendant. Therefore, this Court come to
the conclusion that the suspicion surrounding the execution of
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settlement deed, having been allowed to remain uncleared, the settlement deed is not proved.
following decisions contending that the settlement deed is not proved in accordance with law and therefore, the settlement deed should not be accepted.
Sokkammal)
“26. In this case, admittedly no attesting witness was examined by the Defendants. No particulars were given regarding the existence of those attesting witnesses. When the attesting witnesses were not available or dead, the Defendants could examine some other witness, to prove the Settlement DeedEx. B1 but it was not explained on the side of the Defendants about the attesting witnesses, to the satisfaction of the Court. Therefore, the Settlement Deed said to have been executed by Chellapillai in favour of the 1st Defendant could not be found as proved. The finding reached by the 1st Appellate Court in these lines was quite correct and in accordance with law. Therefore, I could find no perversity on the part of the 1st Appellate Court in interfering with the findings of the Trial Court.”
(ii) 2013 (1) TLNJ 296 (Civil) (P.Sivabushanam vs. Sivamani)
“(v) The settlement deed is a document which requires attestation by at least two witnesses (under Section 23 of the Transfer of Property Act). In order to prove the document under Section 68 of the Indian Evidence Act, at least one attesting witness ought to https://hcservices.ecourts.gov.in/hcservices/ have been examined. When such is a requirement, the plaintiffs ought to have examined atleast one of the attesting witnesses and that has not been done.“
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“17. As the settlement deed is void, there is no necessity to file a suit to set aside the same. There is no proof to show that the settlor understood the contents of the settlement deed and then signed it or put thumb impression upon it. Therefore, there is no valid execution of document in the eye of law. The registration of the document does not cloth the document with sanctity, when the execution itself is not proved.”
(iii) 2011 (2) CTC 435 (Ganesan and others vs. Sundari and others)
“ 18.Now in the case on hand, the question is as to whether the unprobated Will is sought to be proved by the respondents for collateral purpose as it is claimed by them. The learned counsel for the respondents would submit that no right or title is attempted to be established under the Will so as to fall within the bar contained in Section 213 of the Act, instead, according to him, the document is used only to prove that the earlier Will for which Letters of Administration is sought for has been subsequently canceled. This according to the learned counsel for the respondents is a collateral purpose. But, we find it too difficult to accept the said contention. The said Will of the year 1993 is sought to be used to defeat the claim of the appellants to get letters of administration on the earlier Will. Unless, the due execution and contents of the said Will by which the earlier Will is stated to have been cancelled are proved, the respondents cannot succeed in their plea to defeat the claim of the appellants for Letters of Administration. The contents of the said Will of the year 1993 can be proved only in an appropriate probate proceeding. Unless the said Will of the year 1993 is proved that it is the last Will of the deceased and it satisfies all the other legal requirements, the earlier Will for which Letters of Administration proceeding has been initiated cannot be negatived. Proof of the same cannot be made in the present suit because the same could be done if only the respondents approach the Court for probating the said Will either by making a counter claim or by initiating separate proceedings. For the respondents, the right to oppose the issuance of probate in respect of the earlier Will https://hcservices.ecourts.gov.in/hcservices/ itself is derived only from the unprobated subsequent Will. As held by the Full Bench of this Court in Ganshmdoss v. Gulab Bi Bai AIR 1927 Mad. 1054, the bar
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contained in Section 213 of the Indian Succession Act is applicable even to a defendant in a suit. Therefore, we are of the firm view that the purpose for which the Will of the year 1993 is sought to be proved by the respondents in evidence is only for the main purpose to establish that the said Will is the last Will which cancels the earlier Will and the said purpose is not merely collateral as it is sought to be made out by the respondents. Apart from that, in Commissioner v. Mohan Krishan Abrol (cited supra) the Honble Supreme Court has held that even for such collateral purposes the unprobated Will cannot be used in a probate proceedings. 19.The learned Single Judge, after having referred to the Judgment of the Honble Supreme Court in Hem Nolini v. Isolyne Sarojbashini (cited supra) and the judgment of the Kerala High Court in Cherichi v. Ittianam (cited supra), has held that those were the cases where the title was claimed under an unprobated Will and that was the reason why the Courts took the view that such unprobated will could not be proved in evidence. In essence, the view taken by the learned Single Judge is that no right or title is claimed under the unprobated Will in the instant case, by the respondents and therefore, the contention of the respondents that the unprobated Will which is sought to be proved is only for collateral purpose is sustainable. In view of our foregoing discussions, we regret, we are unable to persuade ourselves to agree with the said conclusion arrived at by the learned Single Judge.”
(iv) AIR 1977 SC 74 (1) (Smt. Jaswant Kaur vs. Smt. Amrit Kaur)
“9. In cases where the execution of a will is shouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What,
generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that
the will was duly executed by the testator . It is https://hcservices.ecourts.gov.in/hcservices/ impossible to reach such satisfication unless the
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party which sets up the will .offers a 'cogent and convinc- ing explanation of the suspicious circumstances surrounding the making of the will.”
S.Padmavathamma)
“39. As noticed earlier in this case, none of the attesting witnesses have been examined. The scribe, who was examined as DW.2, has not stated that he had signed the Will with the intention to attest. In his evidence, he has merely stated that he was the scribe of the Will. He even admitted that he could not remember the names of the witnesses to the Will. In such circumstances, the observations made by this Court in the case of M.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri & Sons become relevant. Considering the question as to whether a scribe could also be an attesting witness, it is observed as follows: (SCC p.577, para 7)
"7. ... It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness ."
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paras 26-27)
"26.The effect of subscribing a signature on the part of the scribe cannot in our view be identified to be of the same status as that of the attesting witnesses...."
(vi) AIR 1959 SCC 3(1) (H.Venkatachala Iyengar vs.
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Thimmajamma)
“ 19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not ; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents . The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
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question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has
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received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience . It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive. ”
(vii) 2009 (1) SCC 354 (K.Laxmanan vs. Thellayil Padmini)
“23. Moreover, no attempt was made by the appellant to prove and establish the mental and physical condition of the testator at the time of execution. Rather the respondent has proved that Chathu, the father of the appellant, was at the time of the alleged execution of the Deed of Will was 82 years of age and he was suffering from serious physical ailments and was not mentally in a good state of mind.
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(viii) 1970 (3) SCC 159 (Laxmiammal vs. Talengalanarayana Bhatta)
“Wills – Execution of will and settlement deed attacked as born of undue influence – Contract Act, 1872 (9 of 1872) – Section 16 – Applicability – Testater of weak health and of advanced age – Negligible provision for wife and corpus to go to one grandson to the exclusion of other grandsons – Voluntary nature of execution disputed – Burden of proof of genuineness and validity on the person setting up the will – Finding of High Court that the will was valid reversed in appeal.”
(ix) AIR 1972 Mad. 413 (Rathna Naidu vs. Kanniammal)
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Cal 545. In that case it has been held that- "This transaction was within the well-recognised principle that every onus is thrown upon a person filling a fiduciary character towards another of showing conclusively that he has acted honestly, and bona fide without influencing the donor, who has acted independently of him".
The next case cited by Mr. Parthasarathi Iyengar is 44 Mad LW page 255 and the decision is also to the same effect. Then another case cited by the learned counsel is Powell v. Powell, 1900-1 Ch page 243. In the above decision it has been observed that (pages 245 and 246):-
" It has been for many years well settled that no one standing in a fiduciary relation to another can retain a gift made to him by that other, if the latter impeached the gift within a reasonable time, unless the donee can prove that the donor had independent advice, or that the fiduciary relation had ceased for so long that the donor was under no must show (and the onus is on him) that the donor either was emancipated, or was placed, by the possession if the independent advice, in a position equivalent to emancipation".
"In Rash Behari Nasker v. Haripada Nasker, AIR 1934 Cal 762, it has been laid down that "where the executant of a document had no opportu`nity to have it cancelled on the ground of undue influence, it is open to his representatives to raise the defence of undue influence".
"The learned counsel Mr. Parthasarathi Iyengar also cited the decision Mt. Sewti v. Rattam wherein it has been observed that-
"Now there is no doubt that the appellant is an old illiterate woman and that the respondent, her only, living relation, has been living with her since the lifetime of her husband. It has clear therefore that the appellant was completely in the hands of the respondent. The relationship existing between the parties was therefore sufficient to raise the presumption that the deed in question had been obtained through undue influence which rendered the fraud possible. This presumption is strengthened all the more by the fact that the gift covers the entire property belonging to the appellant that being so, it was incumbent upon the respondent to prove, in the words of the aforesaid ruling contained in Inche https://hcservices.ecourts.gov.in/hcservices/ Noriah v. Shaik Allie, AIR 1929 PC 3, that the gift was spontaneous act of the donor acting under
34
circumstances which enabled her to exercise an independent will. This onus the respondent has failed to discharge".
(x) 1992 (2) SCC 507 (GURO vs. Atma Singh)
“Will – Genuineness – Proof of – Suspicious circumstances – Burden on propounder to remove the suspicion – Held on facts, burden not discharged and will not proved to be a genuine document – High Court not justified in interfering with findings of fact of the first appellate Court based on proper appreciation of evidence – Succession Act, 1925, S.63 – Civil Procedure Code, 1908, S.100.”
(xi) 2011 (4) MLJ 548 (SC) (D.R.Ratna Murthy vs. Ramappa)
“15. The First Appellate Court failed to appreciate that there was no shara (noting) in respect of interlineations in the sale deed. The respondent had deposed as under:
"At that time there was no mention in respect of conditional sale deed. In front of sub registrar nothing was spoken about the conditional sale deed. At the time of purchase the suit land was fallen land. After purchase I formed the land and improved its fertility. I spent about 10 to 15,000/- for the improvement of the land. I grow ragi and ground nut crops. I dig one Well in the suit land. I spent Rs.20,000/- to dug the Well. Prior to filling of this suit plaintiff did not approach me with a request to execute sale deed in his favour. No panchayat was held in respect of the suit lands. Neither witnesses nor scribe intimated me about the Avadhi transaction in respect of suit lands. At the time of change of revenue records the plaintiff did not file any objections contending that the sale is conditional one. I came to know about the Avadhi only after filing of this suit. I sent reply notice to the plaintiff's legal notice. After sale the plaintiff is not related to suit land. I have not agreed for re sale of suit land".
Had it been a case of conditional sale, the appellant could have asked the respondent to wait for mutation or raise the objection before the Revenue Authorities in spite of the fact that mutation is a revenue entry and does not refer to the title of the land. Had it been the case of conditional sale deed enabling the https://hcservices.ecourts.gov.in/hcservices/ appellant to repurchase the land any time within ten years, the respondent could not have spent huge amount
35
of his life savings for improving the land, nor would he have dug a Well in the suit land spending twenty thousand of rupees. The aforesaid circumstances make it clear that the respondent had never agreed for reconveyance.
(xii) AIR 2009 SC 1766 (Bharpur Singh vs. Shamsher Singh)
“Succession Act (39 of 1925), S.63 – Evidence Act (1 of 1872), S.68, S.69, S.70 and S.90 – Will – Nature of proof required – Suspicions circumstances surrounding execution of Will indicated – Propounder must offer reasonable explanation to remove such suspicious circumstances.”
“17. We have gone through Exhibit P.1, which was got produced by respondent No.1 from the appellant. Four corrections have been made on pages 1 and 2 of this document. The figures written in letters (four) were substituted with numbers (3) and the name of respondent No.1 was scored out https://hcservices.ecourts.gov.in/hcservices/ (page 2). At the end of the Will, the testator appended his left thumb mark. On the right side of thumb mark a line
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has been written with the ink pen/ball pen suggesting that the corrections/alterations were made prior to putting of left thumb mark by the testator. However, the space between the last line of the typed Will (in Kannada) and what was written with the ink pen/ball pen leaves no manner of doubt that the writing on the right side of the thumb mark was made after execution of the Will. If the corrections/alterations had been made before the testator had appended his left thumb mark, there was no reason why the line showing deletion of the name of respondent No.1 and corrections in the figures were not reflected in the typed Will and why the line was inserted in the little space left between the concluding portion of the Will and the space where the left thumb mark was put by the testator. Therefore, we approve the view taken by the High Court that the corrections/alterations made in Exhibit P1 cannot be said to have been duly attested by the testator as per the requirement of Section 71 of the Act and respondent No.1 is entitled to share in the property specified in Schedule `B' appended to the plaint. “
examination of attesting witness even if the execution of will is admitted is a settled one. So far as settlement deed is concerned, examination of attesting witness would be necessary only in case there is a specific denial regarding execution. So far as this case is concerned, when the plaintiff issued a
notice claiming partition, the defendant did not say in his
reply notice that he has a settlement deed in his favour. https://hcservices.ecourts.gov.in/hcservices/ Therefore, the plaintiff has no opportunity to dispute the
37
settlement deed in the plaint. However, in the written
statement, for the first time the defendant has opened his mouth to say that there is a settlement deed. Therefore, now the question is whether the plaintiff could have filed a reply statement disputing the execution of the settlement deed.
Time for reply statement to counter-claim.
A defendant pleading a set-off or counter-claim shall within three days of his filing the same serve the plaintiff or his advocate with a copy of the written statement containing such set-off or counterclaim.”
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the defendant can be construed to be counter claim or set off has to be considered.
to point out the distinction between a set off and a counter claim. The meaning of set-off as given in Halsbury's Laws of England, third edition, volume 34 at page 395.
“Meaning of set-off – When A has a claim for a sum of money against B and B has a cross-claim for a sum of money against A, such that B is to the extent of his cross-claim entitled to be absolved from payment of A's claim, and to plead his cross-claim as a defence to an action by A for the enforcement of his
claim, then B is said to have to the extent of his cross-claim a right of set-off against A(a).”
The word Set-off is defined in Motion's pocket Law Lexicon , Eight edition wherein it is stated that in an action to recover
a money, a set-off is a cross claim for money by the defendant for which he might maintain a separate action against the
plaintiff. Set-off extinguishes the plaintiff's claim pro tanto so that the plaintiff can recover against the defendant the balance of his claim after deducting what is due from him to the defendant. In other words, set-off is a ground of defence, a shield and not a sword, which if established, offords an answer https://hcservices.ecourts.gov.in/hcservices/
to the plaintiff's claim, wholly or protanto. A counter claim as
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such affords no defence to plaintiff's claim, but is a weapon of offence which enables a defendant to enforce a claim against the plaintiff as effectively as in an independent action.
a. From the nature of the issues framed, the first
defendant could have got a clue that he has to adduce evidence with regard to execution of the Settlement Deed.
b. The first defendant should have realized his duty to
satisfy the conscience of the Court, when the apparent difference in the signature and in the writings of a particular
witness have been brought out during cross examination. The first defendant should have adduced evidence of one attesting witness when the existence/availability of the witness itself as described in the document was brought out to be an apparent concoction.
denial should have been taken only in the pleadings or at any https://hcservices.ecourts.gov.in/hcservices/
stage of the proceedings. As discussed earlier, the plaintiff
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has denied execution of the settlement deed in the course of the proceedings.
sd/.S.V.J 10.04.2015 //Certified to be a true copy// Dated this the day of 2015.
R.s/04.05.2015 COURT OFFICER
From 25.09.2008 the Registry is issuing certified copies of the Order/Judgment Decree in this format.
3 issues framed by the court
Did denial of the settlement deed during evidence require examination of an attesting witness despite the absence of denial in the plaint?
Had the first defendant proved the settlement deed relied upon to resist partition?
Was the plaintiff entitled to a preliminary decree for partition of a one-third share?
Colour shows how this judgement treated each authority
Periasami Kachirayar and Ors. vs. Varadappa KachirayarReferred¶120
AIR 1950 Madras Page 486 · Who else cites this
Pentakota Satyanarayana and Ors. vs. Pentakota SeetharatnamReferred¶122
AIR 2005 SC 4362 · Who else cites this
Ram Sarup Gupta (Dead) by Lrs. vs. Bishun Narain Inter College and Ors.Referred¶137
AIR 1987 SC 1242 · Who else cites this
Syed and Company and others vs. State of Jammu & Kashmir and othersReferred¶142
1995 Supp (4) Supreme Court Cases 422
Khagendra Lall Dutta and another vs. Jacob Sole JacobReferred¶146
1995 AIR SCW 3670 · Who else cites this
Prataprai N.Kothari vs. John BraganzaReferred¶153
AIR 1999 SC 1666 · Who else cites this
Ravinder Singh vs. Janmeja Singh & Ors.Referred¶163
2000 (10) SC 583
Thayammal and two others vs. Muthukumaraswami ChettiarReferred¶169
1929 Indian Law Reports 53 Madras 119
Surendra Kumar Vs. Nathulal and anotherReferred¶171
AIR 2001 SC 2040 · Who else cites this
Ishwar Dass Jain (Dead) Thr. LRS. Vs. Sohan Lal (Dead) by Lrs.Referred¶190
AIR 2000 SC 426 · Who else cites this
P.Sivabushanam vs. SivamaniReferred¶228
2013 (1) TLNJ 296 (Civil)
Ganesan and others vs. Sundari and othersReferred¶232
2011 (2) CTC 435
Smt. Jaswant Kaur vs. Smt. Amrit KaurReferred¶236
AIR 1977 SC 74 (1) · Who else cites this
H.Venkatachala Iyengar vs. ThimmajammaReferred¶252
AIR 1959 SCC 3(1) · Who else cites this
K.Laxmanan vs. Thellayil PadminiReferred¶264
2009 (1) SCC 354 · Who else cites this
Laxmiammal vs. Talengalanarayana BhattaReferred¶273
1970 (3) SCC 159 · Who else cites this
Rathna Naidu vs. KanniammalReferred¶275
AIR 1972 Mad. 413 · Who else cites this
GURO vs. Atma SinghReferred¶286
1992 (2) SCC 507 · Who else cites this
D.R.Ratna Murthy vs. RamappaReferred¶288
2011 (4) MLJ 548 (SC)
Bharpur Singh vs. Shamsher SinghReferred¶295
AIR 2009 SC 1766 · Who else cites this
4 provisions across 3 enactments
Tamilkodi
N.Kalaimani
Kalaiselvi
S.VIMALA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
