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SUBMISSIONS OF SRI SURESH:

13. Sri Suresh, the learned Counsel representing the other contesting daughters of Veeraiah after taking through the respective pleadings of the parties would contend that it is not a case of fraud alone and in a matter of this nature, the substance of the pleading may have to be looked into and not just the form of the pleading. The learned Counsel referred to the pleadings of the parties in this regard and would contend that the facts and circumstances would clearly go to show that the settlement deeds were brought into existence under peculiar suspicious circumstances which are definitely vitiated in the light of the facts which had been clearly established. The learned Counsel also placed strong reliance on the evidence of D.W.3 and had taken this Court through the evidence of P. W.2 and P. W.3. The learned Counsel made elaborate submissions in relation to the fact that none of the beneficiaries of Exs.A-4 and A-5 entered into the witness box and the husband of China Mangamma alone had been examined as P.W.1 and the validity of the settlement deeds may have to be appreciated even in this backdrop. The Counsel also would contend that no doubt P.W.1 had deposed about yet another will apart from Exs.B-3 and B-4 but no material had been placed in this regard. The Counsel made it clear that Ex.B-3 is relied upon only to show that Veeraiah had lot of affection towards all the children and absolutely there was no necessity to exclude certain children and to prefer only one daughter on the children of one such daughters. The learned Counsel explained that Ex.A-4 is dated 15-8-1984. Ex.A-5 is dated 16-8-1984 and within short time on 28-9-1984 Veeraiah died and in the light of the same, the daughters of Veeraiah who are affected by the alleged settlement deeds had questioned the same. The learned Counsel had commented that the evidence of P.W.1 would clearly go to show that Veeraiah had not opened his mouth at all when Ex.A-4 was written. The learned Counsel also would comment that the deposition as it stands may have to be taken into consideration and what is not there cannot be read into it and "my father in law alone paid the hospital charges" cannot be read in the negative form. The non-examination of the Sub-Registrar also had been commented upon and the learned Counsel explained the scope and ambit of Section 126 of Transfer of Property Act and Section 31 of the Specific Relief Act in this regard. The learned Counsel would comment that the health condition of Veeraiah also may have to be taken into consideration. Veeraiah was aged about 80 years. The Counsel placed strong reliance on the evidence of D.W.4 who is also aged about 80 years and would submit that in the light of the evidence of P.W.4, the stand taken by the settlees cannot be believed.

22. No doubt strong reliance was placed on the contents of Ex.A-2 to substantiate the stand that the settlement deeds aforesaid had been executed by the deceased Veerayya voluntarily. Several decisions referred(11) to(32) supra are to substantiate the stand that in general the principle relating to the Will also may have to be extended in the case of appreciation of evidence in relation to the execution of settlement deeds and at any rate the general principles vitiating the contracts also may have to be applied in the case of settlement deeds while deciding the validity thereof. Placing reliance on the decision referred (11) supra, submissions were made that the principles of suspicious circumstances and proof relating to will as such cannot be extended in the case of settlement deeds. It is no doubt true that the same standard of proof as required in the case of proof of a Will and also explaining the surrounding suspicious circumstances and the other relevant factors in proof thereof as such may not be extended while appreciating the standard in proof required in relation to the execution of the settlement deeds. In Shri Krishan v. Kurukshetra University, , it was held that where a person on whom fraud is committed is in a position to discover the truth by dues diligence, fraud is not proved and it is neither a case of suggestion falsi or suppressio veri. In the light of Ex.A-2 and also in the light of the fact that Veerayya lived for some time, submissions were made at length that the so called fraud if any even subsequent thereto having been detected the same was not rectified by the settlor and in such circumstances it may have to be taken that no such kind of fraud had been established. In Pardhana v. Amin Chandand Ors., ,it was held that a revocation of a gift by donor's heir is legal and right to sue for such declaration is not personal but statutory and on donor's death the cause of action survives to his legal representatives. In the decision referred (3) supra, it was held that where the donor of immovable property has handed over to the donee an instrument of gift duly executed and attested and the gift has been accepted by the donee, the donor has no power to revoke the gift prior to the registration of the instrument. In the decision referred (4) supra it was held that once gift deed is executed and has been delivered to the donee, the donor cannot revoke the gift even before registration on the ground that gift is not completed until the deed is registered. In the decision referred (8) supra it was held that when the executant of the gift deed admitted execution by him it is not open to third party to deny its execution except on the ground of lack of power to convey the property. In the decision referred (7) supra it was held that where registered deed of gift was signed by donor and attested by witnesses it is valid and it can be said to be proved even if one of the attesting witness is not called for proving its execution. Reliance also was placed on Sivakoti Dasaradharam v. Sivakoti Yoganandam, AIR 1966 A.P. 273. In S. Rathnam Naidu v. Kanni Amma, , where a widow having absolute interest in the property transferred it without consideration and the donor got settlement deed executed within few days after she was taken by him to Madras from her village and when the deed of settlement was challenged by the heirs after the death of the donor on the ground of undue influence exercised by the donee it was held that the donee must prove that the deed was voluntary and without any undue influence and where the evidence showed that the widow never had any independent advice in executing settlement deed, it was held that the settlement deed is vitiated by undue influence. In Tagore v. Tagore, (1879) 9 Beng. LR. 377, it was observed that the law of wills among Hindus is analogous to the law of gifts and even if wills are not universally to be regarded in all respects as gifts to take effect upon death they are generally so to be regarded as to the property which they can transfer and the perons to whom it can be transferred, and the law of testamentary disposition was developed in all essential matters on the analogy of Hindu law of gifts. Strong reliance was placed on the decisions referred 27 to 32 supra also. Apart from these decisions, the decisions referred (12) to (25) supra relating to the suspicious circumstances and the standard of proof required in the case of proof of a will also had been relied upon.

Point No. 2:

24. Having dealt with the validity of settlement deeds, the next question is whether the parties would be governed by the testamentary succession or intestate succession. Testamentary succession is a deviation of natural course of intestate succession. It is needless to say that in view of the same careful scrutiny of the validity of the will in question and the evidence relating thereto may be essential. Apart from Exs.A-4 and A-5 settlement deeds made by Veerayya it is said that he had also executed three wills viz., Ex.B-3 dated 14-12-1979, Ex.B-4 dated 4-3-1983 and yet another will dated 20-7-1984. In the plaint in O.S. No. 108/86 at paras 9,10 and 11 if was pleaded as hereunder: