2. The brief facts necessary for the disposal of the appeal are
The plaint schedule property was purchased by the original
plaintiff by virtue of Karayma deed bearing No.361/1967 and
thereafter, obtained purchase certificate bearing No.299/1974. While
so, the original plaintiff in the year 2008 executed a settlement deed
bearing No.3558/2008 in favour of the sole defendant on 01.11.2008.
Thereafter, the plaintiff realised that he was misrepresented or he was
coerced to execute the settlement deed and therefore on 07.04.2010,
the plaintiff caused to issue a lawyers notice demanding the defendant
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to cancel the settlement deed, which was caused to be executed by
playing fraud and misrepresentation. It is contended that the
defendant, who is none other than the daughter of the original
plaintiff, agreed to execute the conveyance deed re-conveying
the property covered by the settlement deed and accordingly,
entrusted the original settlement deed with the original plaintiff.
However, finding that no attempts were made by the daughter to re-
convey the property, suit was instituted. The defendant appeared and
contested the suit by contending that the suit is not maintainable and
that the plaintiff out of love and affection had voluntarily with full
knowledge executed the settlement deed bearing No.3558/2008 in
respect of the plaint schedule property. It was also contended that
the allegation of fraud and misrepresentation is totally false inasmuch
as the plaintiff had executed the settlement deed with full knowledge.
In support of the contention, the original plaintiff produced Exts.A1 to
A3 ((a) & (b)) and examined himself as PW1. On behalf of the
defendant, Exts.B1 to B9 documents were produced and DW1 and
DW2 were examined. On the basis of the evidence, the Trial Court
framed the following issues:
2. Whether the plaintiff is entitled to get a declaration as prayed for?
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3. Relief and costs?"
The Trial Court, on appreciation of evidence, found that the original
plaintiff could not establish that the settlement deed was executed by
way of fraud and misrepresentation. On contrary, the Trial Court on
evidence found that the defendant was successful in establishing the
execution of the settlement deed by examining DW2, who was a
person attached to describe of Ext.A1 deed. It was further found that
though the original plaintiff alleged that he was suffering from mental
ailment occasionally and that he is a mentally challenged person, no
evidence was adduced to prove the same. Thus, on appreciation of
material evidence, the Trial Court dismissed the suit.
3. Aggrieved by the dismissal of the suit, the legal heirs of
the original plaintiff preferred AS No.15/2015. The First Appellate
Court concurred with the finding of fact rendered by the Trial Court
and dismissed the appeal, against which the appellants have preferred
the present appeal by raising the following substantial questions of
law:
"1. Whether the courts below are justified in considering that
execution of Ext.A1 is proved by the defendant more so when under
Section 68 of the Evidence Act Ext.A1 cannot be used as evidence
since none of the alleged attesting witnesses as contemplated by
Section 123 of the Transfer of Property Act were examined?
2. Are not the reasons stated by the courts below to conclude that
Ext.A1 was not vitiated by fraud and misrepresentation are perverse
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and unsustainable?
3. Are the courts below justified in not applying the presumptions
under Sections 114 and 115 of the Indian Evidence Act in favour of
the plaintiff?"
4. Heard, Sri.K.M.Firoz - learned counsel appearing for the
appellants and Sri.P.A.Harish - learned counsel appearing for the
respondent.
5. The learned counsel for the appellant would contend that
Ext.A1 is vitiated inasmuch as the same was not executed by the
defendant daughter by playing fraud and misrepresentation. Placing
reliance on Section 16 of the Indian Contract Act, 1872, the learned
counsel would contend that if an allegation of fraud or
misrepresentation or undue influence is raised, the burden is on the
person who is seeking to sustain the document to prove that the same
was not executed otherwise. Further reliance is placed on proviso to
Section 68 of the Indian Evidence Act, 1872, and contended that
inasmuch as a plea of fraud and misrepresentation is raised, the
burden was on the defendant to prove that the deed was not executed
by playing fraud or misrepresentation.
6. On the other hand, Sri.P.A.Harish - learned counsel
appearing for the defendant - respondent, would contend that unlike
in a case of a will, which requires to be proved in terms of Section 68
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of the Indian Evidence Act, a settlement deed stands on a different
pedestal altogether. He further pointed out that the settlement deed
is signed by the plaintiff himself and the present suit is peculiar in
nature inasmuch as the plaintiff himself is seeking to cancel the deed
and therefore, the burden of proof is more on the plaintiff to establish
that the execution of the deed is vitiated. A negative burden cannot
be shifted to the shoulders of the defendant to disprove the contents
of Ext.A1. It is further pointed out that since the original plaintiff is no
longer alive, the plea of undue influence is not available to the legal
heirs of the original plaintiff.
7. I have considered the rival submissions raised across the
Bar.
8. On a perusal of Ext.A1 settlement deed, it is clear that the
plaintiff had reserved his life interest over the property during his life
time. Therefore, the necessary corollary is that after the death of the
plaintiff, the property vests with the defendant - daughter in full. The
argument of the learned counsel for the appellants that the burden is
on the defendant to prove the contents of Ext.A1 cannot be
appreciated, since a reading of proviso to Section 68 itself shows that
it shall not be necessary to call the addressing witnessing proof of
execution of any document not being a will. Therefore, the reliance on
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the provisions of Section 68 of the Indian Evidence Act is of no avail to
the appellant.
9. Still further, the evidence adduced in the case would reveal
that the defendant, out of abundance of caution, had taken care to
examined DW2, a person attached to the scribe who prepared Ext.A1.
The evidence of DW1 would clearly impeach the claim of the appellant.
Though DW1 was extensively cross examined, the original plaintiff
could not solicit anything contrary to the contents of Ext.A1 in order to
prove his case that Ext.A1 was executed under undue influence and
coercion.
10. Further question as to whether the elements of undue
influence or fraud or misrepresentation is present in the present case
or not, has been appreciated by the Trial Court on the basis of
evidence on record. The First Appellate Court has also appreciated
the evidence and both courts have concurrently found that the
evidence adduced by the plaintiff is lacking in the present case in
order to disprove the contents of Ext.A1. It is true that the
appreciation of evidence, if found to be perverse, can be a ground to
entertain an appeal under Section 100 of the Code of Civil Procedure,
1908. However, it is pertinent to note that when the appeal was
admitted to file, this Court did not consider it appropriate to frame
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substantial question of law.
11. On a consideration of the entire evidence on record and
also considering the impact of proviso to Section 68, this Court holds
that Ext.A1 is not required to be proved by the defendant in terms of
Section 68 of the Indian Evidence Act. Admittedly, Ext.A1 settlement
deed has come into effect and going by the contents of the same,
wherein it is specifically written that the possession of the plaint
schedule property has been handed over to the daughter - defendant
and the defendant is free to carry out the mutation and also change in
the 'Thandaperu' in respect of the property.
Viewed in the totality of the facts and circumstances, this Court
is not persuaded to hold that the courts below has erred in dismissing
the suit and the appeal. Accordingly, the questions of law framed by
this Court while admitting the appeal is answered against the
appellant and the appeal fails. The appeal is therefore dismissed.
Sd/-
EASWARAN S.
JUDGE
ACR
