Madras High Court
Lalitha vs S.Murugesan
Author: V.M.Velumani
Bench: V.M.Velumani
A.S.No.44 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
JUDGMENT RESERVED ON JUDGMENT PRONOUNCED ON
03.08.2022 23.09.2022
CORAM:
THE HONOURABLE MS.JUSTICE V.M.VELUMANI
and
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
A.S.No.44 of 2015
1.Lalitha
2.Indira
3.Radha ... Appellants
Vs.
1.S.Murugesan
2.S.Udhayakumar ... Respondents
Prayer: This First Appeal is filed under Section 96 of C.P.C., against the
judgment and decree dated 17.10.2014 made in O.S.No.55 of 2011 on the file
of the Additional District and Sessions Court, Hosur.
For Appellants : Mr.T.Dhanasekaran
For Respondents : Mr.I.Abrar Md.Abdulla
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https://www.mhc.tn.gov.in/judis
A.S.No.44 of 2015
JUDGMENT
[Judgment of the Court was delivered by V.M.VELUMANI,J.] The appellants are the plaintiffs and respondents are defendants in O.S.No.55 of 2011 on the file of the Additional District and Sessions Court, Hosur. The appellants filed the said suit for partition of the suit property into five equal shares, allotment of three shares to the plaintiffs and for separate possession by way of passing preliminary decree, against the respondents and to appoint an Advocate Commissioner to divide the suit property into five equal shares and allot three shares to the plaintiffs with separate possession by way of passing final decree in the suit. After contest, the said suit was dismissed by the judgment and decree dated 17.10.2014.
2.The unsuccessful plaintiffs have come out with the present appeal challenging the judgment and decree dated 17.10.2014 made in O.S.No.55 of 2011 on the file of the Additional District and Sessions Court, Hosur. Case of the appellants:
3.According to the appellants, suit property originally belonged to their 2/26 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2015 father Srinivasa Pillai, he having purchased the same for Rs.400/-. Their father Srinivasa Pillai executed settlement deed dated 16.04.1981 settling the property only in favour of his wife Muniammal and his sons, the respondents herein. The said document was not acted upon and has no force. Thereafter, the said Srinivasa Pillai appointed his wife Muniammal as Power Agent by Power of Attorney dated 03.09.1985 to look after the suit property and for accounting the rental income. Subsequently, he cancelled the said Power of Attorney by Cancellation deed dated 08.05.1997. The said Srinivasa Pillai executed a registered Will dated 28.05.1997 and registered the same bequeathing the suit property to his wife Muniammal, appellants and respondents equally. Their father died on 26.09.1998. The appellants, respondents and their mother are enjoying the suit property jointly and are in joint possession and are sharing the income equally.
3(i) While so, the respondents in order to grab the suit property created documents by playing fraud and forgery. They took mother of the parties to Sub-Registrar Office, Hosur, to execute a Settlement deed in their favour and forced her to sign the settlement deed. The respondents filed suit for partition 3/26 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2015 and obtained preliminary decree and final decree. Based on the preliminary decree and final decree, they mutated the revenue records in their name. The respondents attempted to sell the suit property. The appellants sent a notice dated 14.12.2009 to the respondents demanding 3/5th share in the suit property. The respondents sent a reply dated 21.12.2009 denying the demand of partition. Their mother Muniammal died on 06.07.2010. The appellants are entitled to 3/5th share in the suit property and hence, filed the suit for partition.
Case of the respondents:
4.The respondents filed written statement and denied all the allegations made by the appellants. According to the respondents, their father Srinivasa Pillai took hand loan and celebrated marriage of the appellants and his first daughter Padmavathy in a grand manner, gave jewels to the appellants and also dowry to the respective persons. Their father helped the appellants to build the houses in the plots given to the appellants by him. After that, their father by registered Settlement deed dated 16.04.1981 bearing document No.1473/1981 on the file of the Sub-Registrar Office, Hosur, settled the suit 4/26 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2015 property only on their mother and respondents. The Settlement deed was acted upon. The respondents and their mother were paying taxes to the concerned authority. The respondents were not aware of the Power of Attorney dated 03.09.1985 executed by their father appointing their mother as his agent and subsequent cancellation of the same. The respondents came to know about the registered Will only now. Power of Attorney, cancellation of Power of Attorney and registered Will dated 28.05.1997 are created by the appellants taking advantage of the old age of their father and the same are not binding on the respondents.
4(i) The appellants were not in joint possession of the suit property with their mother Muniammal and respondents. Their mother Muniammal and respondents are absolute owners of the suit property as per the Settlement deed dated 16.04.1981. Mother of the parties obtained loan from Hosur Co-operative House Building Society Limited and converted the Mangalore tiled house into RCC terraced building measuring 1680 sq.ft. Their mother out of love and affection for the respondents executed a Gift deed dated 23.12.1996 with respect to her 1/3rd share in the land and building of the 5/26 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2015 respondents. The appellants signed as attesting witnesses in the said registered Gift deed bearing document No.676/1996. From that date onwards, the respondents are enjoying the suit property as absolute owners. The registered Gift deed accepted by donees can be cancelled only by due process of law by the donor and respondents' father did not cancel the Settlement deed dated 16.04.1981. Due to the difference of opinion among the respondents, the 2nd respondent filed O.S.No.118 of 1999 on the file of the Sub-Court, Hosur, for division of the property. Preliminary decree and final decree were passed allotting separate shares to the respondents. After final decree, the respondents put up construction separately after obtaining loans from LIC Housing Finance Limited. Separate Gramanatham patta was issued to the respondents. Both the respondents are enjoying the portions allotted to them separately by paying regular taxes to the Government. The respondents never created and forged any document. The respondents did not force their mother Muniammal to execute Gift deed dated 23.12.1996. No cause of action for the suit arose. Court fee paid is not correct as the appellants are not in possession of the suit property and prayed for dismissal of the suit. 6/26 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2015
5.Considering the pleadings, the learned Judge originally framed five issues and subsequently, framed four additional issues, again all the issues were recast and framed three issues, which are as follows:
“1/ 25/05/1997 njjpapll; Will y; thjpfSf;F 3-5 g';F ghfk; jhth brhj;jpypUe;J fpilf;fj;jf;fjh> 2/ 18/4/1981 njjpapll; thjp gpujpthjpfs; je;ij rPdpthrg;gps;is vGjp bfhLj;j jhd brl;oy;bkz;l; gj;jpuk; K:yk; thjpfSf;F brhj;J fpilf;fj;jf;fjh kw;Wk; RthjPdj;jpy; kw;Wk; mDgtj;jpy; cs;shh;fsh> 3/ ntW vd;d ghpfhuk;>”
6.Before the learned Judge, the 1st appellant examined herself as P.W.1, one Roopana, Junior Assistant, Sub-Registrar Office, was examined as P.W.2, Jayalakshmi, wife of one of the attestors as P.W.3 and 13 documents were marked as Exs.A1 to A13. The 1st respondent examined himself as D.W.1 and one Ramaiyya and N.Balasubramaniam, who are the witness and scribe in Ex.B2/Gift deed dated 23.12.1996, executed by mother of the parties in favour of the respondents, were examined as D.W.2 and D.W.3 and marked 10 documents as Exs.B1 to B10.
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7.The learned Judge considering the pleadings, oral and documentary evidence, held that the appellants have failed to prove the Will dated 28.05.1997 and they are not entitled to 3/5th share and the document dated 16.04.1981 is not a Will and it is only Settlement deed. On these findings, the learned Judge by the judgment and decree dated 17.10.2014, dismissed the suit.
8.Against the said judgment and decree dated 17.10.2014 made in O.S.No.55 of 2011, the appellants have come out with the present appeal.
9.Learned counsel appearing for the appellants reiterated the averments made in the plaint and submitted that the learned Judge failed to see that Ex.A1 is not acted upon by any one of the parties till the death of Srinivasa Pillai and it was not intended to be a Settlement deed. The learned Judge erred in holding that Ex.A1 is the Settlement deed without properly considering the recitals in Ex.A1. The learned Judge erred in holding that appellants failed to prove the registered Will dated 28.05.1997 marked as Ex.A6 and the appellants are not entitled to any share in the suit property. As 8/26 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2015 per Ex.A1/Ex.B1, Srinivasa Pillai gave only enjoyment right and did not give absolute right to the respondents and his wife Muniammal. The respondents did not have right to sell the property till the lifetime of Srinivasa Pillai. In view of the above conditions in Ex.A1/Ex.B1, Ex.B2 is a void document. Their father Srinivasa Pillai executed Power of Attorney dated 03.09.1985 to deal with the property appointing his wife as Power Agent during existence of Ex.A1/Ex.B1. If really Ex.A1/Ex.B1 was acted upon, there is no necessity to execute the said Power of Attorney. Ex.A1/Ex.B1 was not acted upon as their father Srinivasa Pillai as owner of the property borrowed moneys by mortgaging the property to put up superstructure. Their father sold the house property mentioned in Ex.A1 on 02.12.1996 vide Sale deed/Ex.A13 to third parties. The respondents ill-treated the father Srinivasa Pillai and mother, which made Srinivasa Pillai to give Police complaint and cancelled Ex.A1/Ex.B1 by registered Will marked as Ex.A6 giving equal shares to the appellants and respondents.
9(i) The learned counsel appearing for the appellants further submitted that appellants proved Ex.A6 Will dated 28.05.1997 by examining P.W.2 and 9/26 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2015 P.W.3. All the revenue records, patta and chitta are only in the name of Srinivasa Pillai till his death on 26.09.1998. The decree passed in O.S.No.118 of 1999 is not valid and it is not binding on the appellants. Learned counsel appearing for the appellants referred to impugned judgment and submitted that the learned Judge erred in holding that appellants failed to prove the Will dated 28.05.1997, Ex.A1/Ex.B1 is the Settlement deed and not Will, erred in dismissing the suit and prayed for setting aside the judgment and decree passed by the learned Judge and allowing the appeal.
10.Learned counsel appearing for the respondents reiterated the averments made in the written statement and submitted that Srinivasa Pillai, father of the parties and husband of Muniammal executed the Settlement deed dated 16.04.1981 Ex.A1/Ex.B1 settling the property absolutely on the respondents and their mother. On the very same day, he handed over the possession of the property to them. From that date onwards, they were in possession and enjoyment of the suit property by paying statutory dues to the Government. The Settlement deed is not a Will in view of the conditions that respondents and their mother shall not alienate the property till the lifetime of 10/26 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2015 Srinivasa Pillai. Muniammal, mother of the parties borrowed Rs.50,000/- from Hosur Co-operative House Building Society Limited and constructed RCC terraced house in the place of Mangalore tiled house. It is not correct to say that Srinivasa Pillai only borrowed moneys and constructed the house. Execution of Power of attorney by Srinivasa Pillai will not amount to possession of Srinivasa Pillai and Settlement deed is void. The mother of the parties Muniammal settled her 1/3rd share to the respondents by the Gift deed dated 23.12.1996, which was marked as Ex.B2. The appellants knowing fully well of the nature of Ex.A1/Ex.B1, signed as witnesses in Ex.B2 at the time of registration of same. Will dated 28.05.1997 marked as Ex.A6 alleged to have been executed by Srinivasa Pillai is not genuine. The appellants have failed to prove genuineness of the Will as per the provisions of Indian Evidence Act and Indian Succession Act. After final decree in partition suit filed by the 2nd respondent, the respondents are in separate possession of the portions of the suit property allotted to them and their names are mutated in the revenue records. They are paying all the statutory dues to the concerned authority. The respondents by examining D.W.2, who signed as witness along with appellants and D.W.3 the scribe of Ex.B2, proved that appellants signed 11/26 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2015 as witnesses to the document and execution of Ex.B2 by their mother in favour of the respondents.
10(i) In support of his contentions, the learned counsel appearing for the respondents relied on the following judgments:
(i) (2017) 1 SCC 257 [Ramesh Verma (dead) through legal representatives vs. Lajesh Saxena (dead) by legal representatives and another];
“13. A Will like any other document is to be proved in terms of the provisions of Section 68 of the Evidence Act and the Succession Act, 1925. The propounder of the Will is 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 disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Section 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement. ” 12/26 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2015
(ii) (2020) 5 SCC 178 [Jagmail Singh and another vs. Karamjit Singh and others];
“14. It is trite that under the Evidence Act, 1872 facts have to be established by primary evidence and secondary evidence is only an exception to the rule for which foundational facts have to be established to account for the existence of the primary evidence. In the case of H. Siddiqui Vs. A. Ramalingam (2011) 4 SCC 240, this Court reiterated that where original documents are not produced without a plausible reason and factual foundation for laying secondary evidence not established it is not permissible for the court to allow a party to adduce secondary evidence.
.. ..
.. ..
17. Needless to observe that merely the admission in evidence and making exhibit of a document does not prove it automatically unless the same has been proved in accordance with the law.”
11.Heard the learned counsel appearing for the appellants as well as the learned counsel appearing for the respondents and perused the entire materials on record.
12.Points for consideration arising in this appeal are: 13/26
https://www.mhc.tn.gov.in/judis A.S.No.44 of 2015 (1) Whether the appellants have proved the Will dated 28.05.1997 Ex.A6 executed by their father Srinivasa Pillai?
(2) Whether document dated 16.04.1981 termed as Settlement deed is a Settlement or a Will?
Point (1)
13. Appellants and respondents are sisters and brothers and they are children of Srinivasa Pillai and Muniammal. It is not in dispute that suit property is a self acquired property of the said Srinivasa Pillai. According to the appellants, by registered Will dated 28.05.1997 marked as Ex.A6, their father Srinivasa Pillai bequeathed the suit property to their mother Muniammal, appellants and respondents equally. After the death of their father on 26.09.1998, the appellants, respondents and their mother are in joint possession and enjoying the income. Based on the said Will, the appellants are claiming 3/5th share in the suit property. To succeed the claim, the appellants must prove the Will. To decide the issue, whether the appellants have proved the said Will, Section 63 of the Indian Succession Act, 1925 and Section 68 of Indian Evidence Act, 1872, are relevant. Both Sections are 14/26 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2015 extracted hereunder for easy reference:
Section 63 of Indian Succession Act “63. Execution of unprivileged Wills. —Every testator, not being a soldier employed in an expedition or engaged in actual warfare, (or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:—
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has been some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.” 15/26 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2015 Section 68 of Indian Evidence Act:
68. Proof of execution of 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:
[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.] 13(i) Section 63 of Indian Succession Act deals with execution of unprivileged Wills. As per Sub-section (a), Testator must sign or affix his mark in the Will or give instructions to other persons to sign on his behalf. 16/26 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2015 As per Sub-Section (c), Will shall be attested by two or more witnesses, each of whom has seen the Testator signing or affixing his mark to the Will. Further, each of the witnesses shall sign the Will in the presence of the Testator, and it shall not be necessary that more than one witness is present at that time.
13(ii) The Will must be attested by two persons, who must witness the Testator sign the Will and they must attest the Will in the presence of the Testator. Both the attesting witnesses must sign in the presence of other attesting witnesses.
13(iii) Section 68 of Indian Evidence Act deals with how to prove the Will. As per this section, propounder of the Will must examine atleast one of the attesting witnesses to prove the Will. In the present case, the appellants have not produced original Will dated 28.05.1997. They have filed and marked only certified copy of the Will as Ex.A6. They have not stated who is in possession of the original Will and reason for not filing the original Will. The appellants have examined one Roopana, Junior Assistant from the Sub- 17/26 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2015 Registrar Office, as P.W.2. P.W.2 was not working in the said Office, when the Will dated 28.05.1997 was registered. P.W.2 deposed that no photographs were affixed, she was not aware whether anybody accompanied Srinivasa Pillai at the time of registration. She is not a competent person to speak about the Will executed by Srinivasa Pillai and attestation of said Will by two persons. The evidence of P.W.2 does not advance the case of the appellants.
13(iv) Appellants examined one Jayalakshmi, wife of one of the attesting witnesses as P.W.3. She has not seen Srinivasa Pillai, her husband and other attesting witness signing the Will. She deposed that original Will was with her husband for one year and subsequently, Srinivasa Pillai took the Will from her husband. P.W.3 deposed that her husband died in the road accident. The certified copy of the Will Ex.A6 shown to her did not contain the signature of her husband, one of the attesting witnesses. She deposed that if original Will is produced, she can identify her husband's signature. The appellants have not stated anything about the other attesting witness and why they are not able to examine him to prove the Will. Hence, P.W.3 did not identify signature of her husband, attesting witness to the Will. 18/26 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2015 13(v) From the above materials, it is clear that appellants have failed to prove the Will dated 28.05.1997, their father was in sound disposing state of mind, executed the same in the presence of attesting witnesses and attesting witnesses also signed in the presence of Srinivasa Pillai. Appellants failed to prove the Will as per Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act.
13(vi). For the above reasons, Point (1) is answered against the appellants.
Point (2)
14.According to the respondents, their father Srinivasa Pillai executed Settlement deed dated 16.04.1981 marked as Ex.A1/Ex.B1. On the date of the said document, father handed over the possession to them. From the materials on record, it is seen that after execution of Ex.A1/Ex.B1, respondents and 19/26 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2015 their mother were dealing with the property on their own. By borrowing money from Hosur Co-operative House Building Society Limited, they constructed RCC terraced building in the place of Mangalore tiled house. Father of the parties Srinivasa Pillai, who was alive at that time, did not object to the same and he was residing along with respondents and his wife Muniammal till his death. It is the case of the appellants that by Ex.A1/Ex.B1, Srinivasa Pillai did not settle the property to his wife and the respondents. They were given only enjoyment right and restraining from alienating the property till the lifetime of Srinivasa Pillai. This condition imposed by Srinivasa Pillai amounts to Ex.A1/Ex.B1 is only the Will and not Settlement deed. The said contention of the appellants is not acceptable. Father of the parties, Srinivasa Pillai did not retain any interest in the property settling Ex.A1/Ex.B1. He has not stated in the deed that he is entitled to all the income from the property or he is entitled to share in the income. The only condition imposed is that Wife Muniammal and respondents should not alienate his property till his lifetime. The said condition is extracted hereunder:
“vdf;F clk;gpwF ; Mnuhf;fpakpy;yhky; ,Ug;gjhYk; 1 20/26 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2015 yf;fkpll; th; kidtpahft[k;. 2. 3 yf;fkpl;lth; kf;fshft[k;. ,Uf;Fk; c';fSf;F brhj;J VjhtJ bra;J itf;f ntQqbkd;W vdf;F njhd;wpajhYk; c';fs; bgahpy; vdf;Fs;s rPhPjp md;gpdhYk;. ghrj;jhy; ,jd; kjpg;g[fs; U:/19150/00 gj;bjhd;gjhapuj;J Ehw;wp Ik;gJ kl;Lk; U:gha;fs; kjpg;gs [ s ; !;jpu brhj;ij ,d;W j';fs; K:d;W ngUf;Fk; jhdbrl;oy;bkz;L gj;jpuk; vGjp itj;jpUf;fpnwd;/ ,d;W Kjy; brl;oy;bkz;L brhj;jpw;F rh;fhh; jPh;ita[k; a{dpad; thpa[k; jh';fns brYj;jpf; bfhz;L ck; g[j;jpu bgsj;jpu ghuk;ghpakha; Mz;L mDgtpj;Jf; bfhs;syhk;/ ,d;W ,e;j jhd brl;oy;bkz;Lf;fhf c';fs; K:d;W ngh;fshy; ehd; ve;jtpjkhd gpujpgyida[k; milatpy;iy/ ,e;j jhd brl;oy;bkz;l; brhj;ij vd; $Ptjpir tiuapYk;
ve;jtpjkhd ghuhjPd';fSf;Fk; cl;gLj;j c';fs; K:d;W
ngh;fSf;Fk; ve;jtpjkhd mjpfhuKk; fpilahJ/ vd;Dila
$Ptjpir mUe;jpuk; eP';fs; mDgtpfF
; k; ghj;jpa';fSld;
mDgtpjJ
; f; bfhs;syhk;/ jhdbrl;oy;bkz;l; brhj;Jf;fspd; nghpy; ve;jtpjkhd tpy;y';fKk; fpilahJ/ mg;go VjhtJ tpy;y';fnkh jhuhh;fnsh Vw;gl;lhy; ehnd Kd;dpd;W vd; brhe;j brytpy; tpLtpj;Jf; bfhLf;fpnwd; vd;W vd; kd rk;kjpapy; vGjp itj;J bfhLj;j jhd brl;oy;bkz;L gj;jpuk; rhp/” This condition will not amount to Srinivasa Pillai executed only a Will and not Settlement deed. This is fortified by the fact that possession of the 21/26 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2015 property was handed over to the respondents and their mother Muniammal. The contention of the learned counsel appearing for the appellants that Srinivasa Pillai borrowed Rs.50,000/- from the Hosur Co-operative House Building Society Limited and constructed RCC terraced house is contrary to the materials on record. Ex.B5 is the Mortgage deed. In that deed, Muniammal is the first mortgagor, Srinivasa Pillai, respondents and minor sons were shown as other mortgagors.
14(i) The contention of the learned counsel appearing for the appellants that Srinivasa Pillai subsequent to the execution of Ex.A1/Ex.B1 sold portion of the property mentioned in the said deed is not correct. From the Sale deed Ex.A13 dated 02.12.1996, it is seen that Srinivasa Pillai has sold 33 cents, which is not part of Ex.A1/Ex.B1. It is different property sold by Srinivasa Pillai, appellants, respondents, Muniammal and other children.
14(ii) As far as Power of Attorney dated 03.09.1985 appointing Muniammal as Power Agent of Srinivasa Pillai is concerned, in the Power of Attorney, Srinivasa Pillai and respondents are shown as Principals and only 22/26 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2015 Srinivasa Pillai signed the document. In the said Power of Attorney, Muniammal was authorised to borrow money, execute necessary deed, construct house, let out the properties and empower to do other acts and Muniammal must maintain the proper accounts. In the said Power of attorney, it is not mentioned that any income received from the said property must be handed over to Srinivasa Pillai. In view of the same, Power of Attorney dated 03.09.1985 and cancellation of Power of attorney dated 08.05.1997 has no relevance in deciding the nature of Ex.A1/Ex.B1 as Srinivasa Pillai has not demanded any income from the suit property. The respondents have contended that Srinivasa Pillai took hand loan, celebrated marriage of appellants and his first daughter Padmavathy in a grand manner, gave jewels to appellants and his first daughter and also dowry to their husbands. The respondents further contended that Srinivasa Pillai gave immovable properties to the appellants and helped them to construct house in the said plots. First appellant as P.W.1 admitted that their father gave house sites to them. Appellants 1 and 2 sold the said property, 3rd appellant constructed house and is living there. Further, the appellants have signed as witnesses in the Gift deed dated 23.12.1996 executed by mother settling her 1/3rd share on 23/26 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2015 the respondents. First appellant as P.W.1 deposed that signature in the said document looks like her signature, but she has not signed in the said document. Appellants 2 and 3 did not depose as witnesses and deny their signatures. The respondents examined D.W.2 and D.W.3 and proved that appellants only after knowing the nature of the document, signed as witnesses 1 to 3. D.W.2 signed as fourth witness. D.W.3 is the scribe of the said document. Both D.W.2 and D.W.3 categorically stated that all the three appellants came to Sub-Registrar Office and signed as witnesses knowing fully well of the nature of the document. Counsel for the appellants in the cross-examination of D.W.2 and D.W.3 did not even put a suggestion that appellants were not present in the Sub-Registrar Office and they did not sign as witnesses. For the above reasons, we hold that Ex.A1/Ex.B1 is only the Settlement deed, possession was handed over to the respondents and Muniammal on the same day and that they were dealing with the property as absolute owners with the knowledge of Srinivasa Pillai and appellants.
14(iii). In view of above materials, Point (2) is answered in favour of the respondents.
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15.For the above reasons, we find no reason to set aside the impugned judgment and decree passed by the learned Judge.
16. In the result, this First Appeal is dismissed. No costs.
(V.M.V., J) (S.S., J) 23.09.2022 Index : Yes / No kj To
1.The Additional District and Sessions Judge, Hosur.
2.The Section Officer, VR Section, High Court, Madras.
25/26 https://www.mhc.tn.gov.in/judis A.S.No.44 of 2015 V.M.VELUMANI,J.
and S.SOUNTHAR,J.
kj Pre-Delivery judgment in A.S.No.44 of 2015 23.09.2022 26/26 https://www.mhc.tn.gov.in/judis