L. Narayanan and Others vs Munuswamy Gounder and Arunachala Gounder

Honourable Mr. Justice M. Venugopal

The Appellants/Plaintiffs have focused the present Second Appeal as against the Judgment and Decree dated 11.02.2000 in A.S.No. 8 of 1998

passed by the Learned III Additional District Judge, Krishnagiri, in confirming the Judgment and Decree dated 29.11.1997 in O.S.No. 324 of

1992 passed by the Learned District Munsif, Krishnagiri. The First Appellate Court viz., the Learned III Additional District Judge, Krishnagiri,

while dismissing the Appeal, has opined that ''in the present case during the year 1962, the 1st Plaintiff (1st Appellant in A.S.No. 8 of 1998) (since

deceased) has left the house stating that he does not require any share in the properties and also the rest of the Defendants/Brothers (Respondents)

have remained has join family till 1972 and in between them, it is quite clear that a partition has taken place as per Ex.B.1 Partition Deed dated

07.07.1972 and also that after partitioning the properties among the Defendants (Respondents), the Defendants (Respondents) have created

mortgage in respect of the properties, which have come into their hands and pattas have been created in their favour and also they have paid land

tax receipts, which is evident from the documents filed on behalf of the Defendants. Further, the 1st Appellant/1st Plaintiff (since deceased) has

signed in Ex.B.1 Partition Deed and also that leaving him, the Defendants (Respondents) have been enjoying the suit properties without any

interruption till the filing of the suit (i.e.) till 1992 and they have in enjoyment continuously and also that the Defendants (Respondents) have

acquired right of adverse possession in respect of the suit properties and resultantly, dismissed the Appeal, with costs.

Before the trial Court, in the main Suit, 1 to 3 issues have been framed for determination. On behalf of the Appellants/Plaintiffs, witnesses P.W.1

to P.W.3 have been examined and Exs.A.1 and A.2 have been marked. On the side of the Respondents/Defendants, witnesses D.W.1 to D.W.3

have been examined and Exs.B1 and B.51 have been marked.

The trial Court after scrutinising and analysing the oral and documentary evidence available on record has clearly held that, in the main suit,

P.W.1 has admitted that the two Defendants, after partition, have been in separate possession of the properties and have paid the kist receipts,

which fact he is not aware of, but, has admitted that in two persons'' name, patta is standing and also that he has not taken any effort to change the

patta or to pay kist and to obtain receipts before filing of the Suit and therefore, observed that P.W.2 in his evidence (in cross examination) has

deposed that in the suit property, there is a Well and in the said Well, there is an electric motor and he does not know in whose name the electricity

connection stands and also the Well has been dug by the Plaintiff and the Defendants, which is against the Plaintiff and has dismissed the Suit with

costs, holding that the Plaintiffs cannot claim any right in the suit properties.

At the time of Admission of the Second Appeal, the following substantial questions of Law are framed for consideration:

1) Whether the first Appellate Court was right in rejecting the documents that were relied upon by the Appellant, especially in the light of the

evidence of the Respondents/Defendants who admitted the property being ancestral property?

2) Whether the first Appellant Court was right in shifting the onus of proof towards the contentions raised by the Respondents on the Appellants,

to prove that the Appellants had executed the partition deed?

The Contentions, Discussions and Findings on substantial questions of law 1 and 2: The Learned Counsel for the Appellants/Plaintiffs submits

that the 1st Appellate Court has failed to appreciate the documents marked before the trial Court whereby it is to be presumed that as an illiterate

person, the 1st Plaintiff (since deceased) has been subjected to the whims and fancies of the Respondents 1 and 2 in and by which the partition has

been effected to the exclusion of the 1st Plaintiff (since deceased), although, it is admitted that the suit property belongs to ancestral property.

According to the Learned Counsel for the Appellants/Plaintiffs, the 1st Appellate Court wrongly shifted the burden of proving the contentions

raised by the Respondents on the 1st Appellant/1st Plaintiff (in First Appeal -since deceased), whereas, the Respondents should have proved

beyond reasonable doubt, the contentions and averments raised by them in defence.

Conversely, it is the submission of the Learned Counsel for the Respondents/Defendants that on 07.07.1972, the partition has taken place

between the Respondents/Defendants in respect of the suit properties as per Partition Deed and that the 1st Plaintiff (since deceased) is not having

interest in the suit properties to be divided among the Defendants and safely it has been considered that the 1st Plaintiff (since deceased) ought to

be taken as an attestor to the Partition Deed, thereby, acknowledging the rights of the Respondents/Defendants only in the suit properties and

when the 1st Plaintiff (since deceased) has relinquished his rights and got separated from the joint family even during 1962 without wanting any

share in the suit properties, it is not open to the Appellants/Plaintiffs, now, to claim a share in the suit properties.

As a matter of fact, it is the contention of the Respondents/Defendants that the Appellants/Plaintiffs have been ousted from possession during the

year 1962 and the rights have been denied by the Respondents/Defendants and when the 1st Appellant/1st Plaintiff (since deceased) has no right in

the suit properties, then the 2-5 Plaintiffs (Appellants in A.S.No. 8 of 1998) cannot claim any share and as such, both the Courts below have

rightly held that the Appellants/Plaintiffs are not entitled to get any share in respect of the suit properties and a concurrent finding of fact have been

rendered by the Courts below in this regard, which need not be interfered with by this Court in Second Appeal.

For better appreciation of the merits of the case, it is useful for this Court to make a reference to the evidence of witnesses viz., P.W.1 to P.W.3

and D.W.1 to D.W.3.

P.W.1 (1st Appellant/1st Plaintiff (since deceased)) in his evidence has deposed that 2-5 Plaintiffs (Appellants in First Appeal) are his sons

and Respondents/Defendants are his brothers and the suit lands belonged to him and the Respondents/Defendants and the suit lands have been

purchased approximately before fifty years and therefore, they have a right and Ex.A.1 is the Sale Deed dated 07.01.1947 and the original Sale

Deed of Ex.A.1 is with the 1st Respondent/1st Defendant and after the purchase, he, along with his brothers have been in enjoyment of the lands

and among themselves, no partition has taken place in respect of the suit properties and five years before, he asked the Respondents/Defendants

to effect the partition, but they have not heeded to his request and there is no family debt in respect of the suit properties and it is not correct to

state that before twenty years, he has stated that he does not require the family properties and the debt and it is not correct to state that he has

signed in the Partition Deed. P.W.1 has also deposed that initially, apart from the suit properties, the other properties of the family have been sold

for discharging the debts and Ex.A.2 is the Sale Deed dated 10.07.1958 and he has claimed one-third share in the suit properties and in his one-

third share, in respect of the suit properties, his children have got right and therefore, they have been added as parties.

P.W.2 in his evidence has deposed that he knows that the Plaintiff and the Defendants have four acres land and further, they have acquired

right in the properties by means of their purchase and that the parties are enjoying the lands jointly and before filing of the Suit, they remained

joined and thereafter, the Defendants are in enjoyment of the properties and it is wrong to state that the 1st Plaintiff (who figured as 1st Appellant

in First Appeal, later died) before 25 years has stated that he does not require the properties and the loan.

P.W.2 (in his cross examination) has stated that in the suit land, the 1st Respondent/1st Defendant''s son is residing in the house of suit land and

after filing of the suit, the parties are residing separately and also that after marriage, 2-5 Plaintiffs are residing separately.

P.W.3 in his evidence has deposed that he is the Manager of Indian Bank and on 14.09.1988, the 2nd Respondent/2nd Defendant has availed

the loan on the basis of land equitable mortgage.

D.W.1 (2nd Defendant) in his evidence has deposed that the 1st Plaintiff (since deceased) is his brother and the 1st Respondent/ 1st

Defendant is elder to both the brothers and originally, the 1st Plaintiff (since deceased) and the Respondents/Defendants have remained as joint

family and all of them have purchased the suit property during 1947 as per Ex.A.1 Sale Deed dated 07.01.1947 and they have also purchased the

ancestral properties as per Ex.A.2 Sale Deed dated 10.07.1958. For discharging the family loan, the aforesaid sale has taken place and leaving the

sale consideration amount of Rs. 1,000/-, the balance has remained outstanding and the loan has not been repaid with interest of Rs. 3,000/-.

It is the evidence of D.W.1 that before five years when the 1st Plaintiff (since deceased) children have demanded partition, at that time,

partition has taken place and before that no partition has taken place among the three of them and that the 1st Plaintiff (since deceased) after

keeping aloof, they are only enjoying the suit properties and that they have settled the dues and he along with the 1st Appellant/1st Plaintiff (since

deceased) have partitioned the suit properties.

Added further, D.W.1 in his evidence has deposed that he has no lands other than the suit property and since the 1st Respondent/1st

Defendant is the family head, electricity connection has been obtained in his name and at that time of Ex.B.1 Partition Deed, there is no loan

amount due.

D.W.2 (1st Respondent/1st Defendant''s son) in his evidence has deposed that his father, along with his uncle have divided the property in the

year 1972 and his father has got two acres and sixteen cents in the partition as per Ex.B.1 Partition Deed dated 07.07.1972, in which the 1st

Plaintiff (since deceased) has affixed his thumb impression and that the Appellants/Plaintiffs have not demanded partition till date.

D.W.2 proceeds to state in his evidence that after partition, his father has obtained loan from the Krishnagiri Land Development Bank and the

electricity connection is in his name and that the Appellants/Plaintiffs know about the partition that has taken place.

D.W.3 in his evidence has deposed that since, among the Plaintiffs and Defendants, they are writing a Partition Deed, he has not asked for

different signature and he has affixed his signature as a witness, since the document Writer Karnam has asked him to sign.

It is to be pointed out that the term ''attestation'' is not defined either in the Indian Evidence Act, 1872 or in the Transfer of Property Act.

However, in Shamu Pattar V. Abdul Kadir in 35 Mad 607, it is held by Privy Council that ''attestation to be valid must be made by the witness

after seeing the actual execution and the attesting witness must sign as such''. In Section 3 of the Transfer of Property Act (as amended by Act 27

of 1926 and Act 10 of 1927), the definition runs thus:

Attested in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen

the executant to sign or affix his mark to the instrument, or has seen som other person sign in the instrument in the presence and by the direction of

the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person,

and each of whom has signed the instrument in the presence of the executant, but it shall not be necessary that more than one of such witnesses

shall have been present at the same time, and no particular form of attestation shall be necessary.

It is to be noted that an illiterate individual may be an attesting witness by affixing his mark or fixing impression as per decision Nagamma V.

Venkatramayya in 58 Mad 220.

By attestation, it is meant that signing of a document to signify that the attestor is a witness to the document. Mere attestation does not effect an

estoppel, for attestation does not fix an attesting witness with knowledge of the contents of the document as per decision Suraj V. Hafiz in AIR

1944 Lah 43. Also, attestation does not of itself imply consent as per decision Pandurang V. Markandeya in 49 Cal 334.

It is relevant for this Court to point out that to operate as estoppel, the signature must be shown by an independent witness to have meant to

involve consent to the transaction as per decision AIR 1933 703 (Lahore) . Further, it must be shown by an independent evidence that the

attesting witness understood what the transaction was and that he was an consenting party as per decision Chidambara Padayachi V. Vellaiya

Padayachi in (2008) 5 CTC 219.

Further, a conduct amounting to waiver may create an estoppel precluding a person from insisting upon giving effect to a family arrangement as

per decision Janaki Ammal V. Kamalathammal in 7 MHCR 263.

Moreover, where the persons attesting, asserts the facts stated in the documents attested, is charged with knowledge of the documents as per

decision AIR 1930 217 (Lahore) .

In law, it is necessary that a witness has affixed his signature animo attestandi viz., for the purpose of attestation to indicate that he has seen the

executant sign or has received from him a personal acknowledgment of his signature.

In the instant case on hand, on perusal of Ex.B.1 Partition Deed dated 07.07.1972 shows that the 1st Plaintiff (since deceased) has affixed his

thumb impression as a 2nd witness and one Munisamy has signed as a 1st witness.

The Appellants/Plaintiffs, in the plaint have taken a plea that the 1st Plaintiff (since deceased) is not worldly wise and is mentally weak and that

the 1st Plaintiff (since deceased) is an illiterate, idiotic and immature and he has not been in a position to understand what is good for him and what

is not. Further, taking advantage of his mental weakness, the Respondents/Defendants have fraudulently connived and clandestinely divided the suit

property between themselves on 07.07.1972 under a registered Partition Deed, without giving any share to the 1st Appellant/1st Plaintiff (since

deceased). The Plaintiffs 2 to 5 viz., Appellants 1 to 4 in the Second Appeal (sons) have joined the 1st Plaintiff in filing the suit.

D.W.3 in his evidence has stated that in Ex.B.1 Partition Deed, the 1st Plaintiff and himself have signed and that Karnam Krishnamoorthy has

written the Partition Deed and thereafter, he has affixed the signature and the Plaintiff has also signed.

Although, in the plaint the Appellants/Plaintiffs have taken a plea that the 1st Plaintiff''s signature as an attestor in the Partition Deed has been

taken, on false representation that it is only for a bank loan application and later on, got the document being registered behind his back and that the

1st Plaintiff has not been aware of the contents of the Deed etc., in view of the evidence of D.W.3, this Court comes to the inevitable conclusion

that the Appellants/Plaintiffs have not established to the satisfaction of this Court that the 1st Plaintiff''s signature has been taken in the Partition

Deed based on false representation that it is for the application form for a bank loan.

In law, when a person avers a fact, then the burden is on that person to assert the said fact. In our case on hand, the Appellants/Plaintiffs have

not established that the 1st Plaintiff''s signature has been taken based on false representation in the Partition Deed, in the considered opinion of this

Court. Though, a partition has taken place in the year 1972 as seen from Ex.B.1, no action has been taken till the year 1992. If a person attests a

document/deed, his attestation must be taken as a proof to his consent to the knowledge and correctness of the recitals of the Deed. But, that

presumption is a rebuttable one. However, the Appellants/Plaintiffs have not been in a position to satisfy the judicial conscience of this Court that in

Ex.B.1 Partition Deed, the 1st Plaintiff has only marked thumb impression based on false representation. Also, that the Respondents/Defendants in

respect of the land have obtained patta and they remained in possession of the properties till the filing of the suit. The Appellants/Plaintiffs have not

claimed any right in the suit properties.

Be that as it may, on a conspectus of the overall assessment of the facts and circumstances of the case in an integral manner and for the

forgoing detailed discussions, this Court holds that the First Appellate Court is quite correct in coming to the conclusion that the

Appellants/Plaintiffs are not entitled to claim any share in respect of the suit properties and even though, it is admitted that the property is an

ancestral one, yet, it cannot be said that the First Appellate Court has not looked into the material documents filed before the trial Court and infact,

in a partition suit, a Plaintiff is a Defendant and a Defendant is a Plaintiff and the onus of proof shifts from one position to another, depending upon

the factual situation and there is no material infirmity or patent illegality committed by the 1st Appellate Court in shifting the onus of proof in regard

to the contentions raised by the Respondents/ Defendants. Accordingly, the substantial questions of law 1 and 2 are answered against the

Appellants/Plaintiffs. Consequently, the Second Appeal fails. In the result, the Second Appeal is dismissed. The Judgment and Decree of the First

Appellate Court viz., the Learned District Judge (Third Additional), Krishnagiri, Dharmapuri District dated 11.02.2000 in A.S.No. 8 of 1998 and

the Judgment and Decree of the trial Court viz., the Learned District Munsif, Krishnagiri dated 29.11.1997 in O.S.No. 324 of 1992 are confirmed

by this Court for the reasons assigned in this Appeal. No costs.