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Judgment
Nainar Sundaram, J.—The appellants in this Appeal are the first defendant and the legal representatives of the second defendant, who take
in also the first defendant in O.S. No.1700 of 1969 on the file of the IV Assistant Judge, City Civil Court, Madras. The respondents herein are
plaintiffs 3 to 6. That suit was laid by the plaintiffs for a declaration that the sale deed, dated 14-6-1963 Ex.B99 by the first-plaintiff in favour of the
first-defendant relating to item 1 of the suit properties is void for a declaration that the second plaintiff is entitled to a life-estate in the said item and
plaintiffs 3 to 6 are entitled to a vested remainder for a declaration that the first plaintiff is the owner of item 2 of the suit properties for possession
of item 1 and 2 for past mesne profits at Rs.2650 in respect of item 1 for future mesne profits at the rate of Rs.100 per mensem in respect of item
1 till delivery of possession for past mesne profits in respect of item 2 at Rs.2700 and future mesne profits in respect of item 2 at Rs.75 per
mensem and for costs. The parties are relations and the property dispute amongst them arose in the following manner. The first plaintiff was the
husband of the second plaintiff. Plaintiffs 3 to 6 and the first defendant are daughters of plaintiffs 1 and 2. The second defendant was the husband
of the first defendant. Plaintiffs 1 and 2 died pending the suit and their children plaintiffs 3 to 6 and the first defendant stand recorded as their legal
representatives. After the Judgment of the Court below, the second defendant died, and as stated above this Appeal has been preferred by the first
defendant, who is also a legal representative of the deceased second defendant and the other legal representatives of the deceased second
defendant. On 25-1-1954 as per Ex.B4 the first plaintiff executed a settlement deed in favour of the second plaintiff, and the daughters of plaintiffs
1 and 2, namely, plaintiffs 3 to 6 and the first defendant in respect of item 1 of the suit properties. Under this deed of settlement, the second plaintiff
was given a life estate, and after her lifetime, the daughters, plaintiffs 3 to 6 and the first defendant were also given a life estate, and only thereafter
the absolute estate was given to their Santhathis. According to the plaintiffs this deed of settlement was executed by the first plaintiff, and in fact,
this was acted upon. In contrast, defendants 1 and 2 would state that the deed of settlement was not accepted by the second plaintiff and it was
not acted upon, and the plaintiff on 6.4.1962 executed a deed of revocation as for Ex.B42, and on 14.6.1963 for valid consideration the first
plaintiff conveyed item 1 to the first defendant as per EX.B99. With regard to item 2 the plaintiffs would state that the signatures of the first plaintiff
were obtained in documents without he being made wiser about their nature and contents and the plaintiffs wanted to ignore a deed of settlement,
dated 14.1.1961, as per Ex.B77, stated to have been executed by the first plaintiff to and in favour of the first defendant as totally a void
document. In contrast, the defendants wanted to sustain Ex.B77 and obtain title under the same in respect of item 2 of the suit properties.
Reflecting the controversy raised by the parties through their pleadings, the Court below formulated the relevant issues and it after assessing the
evidence placed by the parties, oral and documentary, came to the conclusion that Ex.B4 was accepted and was acted upon and hence Ex.B42
and B99 would not be availed of by the defendants to claim any title in respect of item 1 and Ex.B77 was not proved to have been executed by
the first plaintiff in accordance with law and ultimately, the court below decreed the suit of the plaintiffs, as prayed for with costs. The question of
mesne profits was directed to be determined by separate proceedings.
In this appeal, we are primarily concerned with two questions. The first question relates to item 1 of the suit-properties. Ex.B.4 bears the
nomenclature of a settlement-deed. There was an attempt on the part of the defendants to call this document a will, so as to sustain their case that it
was rightly revoked under Ex.B-42 and the subsequent sale as per Ex.B-99 in favour of the first-defendant could be upheld. This attempt failed
before the court below. Mr. P. Veeraraghavan, learned counsel for the appellants, would also endeavour to put forth a theory that Ex.B-4 must be
characterised only as a will. The distinct feature, which milotates against such a theory, and which is present in this case, is the recital with regard to
the devolution in Ex.B-4 itself. There was a demise in preanenti to and in favour of the primary settlee, namely, the second-plaintiff. There was no
ambiguity with regard to this aspect in the recitals in Ex.B-4. If this is so, it is not possible to give Ex.B-4 the character of a testament.
Eschewing the above contention, there is a need to consider the question of conferment of title, claimed by the plaintiffs as per Ex.B4 in respect
of item 1 on the ground that Ex.B4 was accepted and was acted upon and hence it could not be revoked as per Ex.B42 and there could not be a
subsequent sale as per Ex.B99. In this connection, three documents require advertence to and consideration by this Court. One is the deed of
settlement itself by the first-plaintiff in favour of the second-plaintiff and that is Ex.B4 dated 25-1-1954. The first-plaintiff, as stated above,
executed a deed of revocation on 6-4-1962, as per Ex.B42 and that was followed up by a sale deed in favour of the first-defendant on 14-6-
1963 as per Ex.B99. If the settlement deed Ex.B4 had been accepted by the settlers, then the settlement was complete and in the absence of a
power of revocation reserved for the settler, to be exercised by him, on specified contingencies and not on the mere Will of the settler, the
settlement cannot be revoked. This is the implication of S.126 of the Transfer of Property Act, hereinafter referred to as the Act. Admittedly, no
such power was reserved for the first-plaintiff in Ex.B4. If this is so, the revocation under Ex.B42 dated 6-4-1962 and the subsequent sale under
Ex.B99 dated 14-6-1963 could have no sanctity in the eye of law and they have to stand ignored. That was why the defendants would advance a
contention that there was no acceptance of the settlement by the settlees, and further more, it was not acted upon at all. The primary settlee under
Ex.B4 was the second-plaintiff. She was the wife of the first-plaintiff and the mother of the other settlees, namely, plaintiffs 3 to 6 and the first-
defendant. Whether there was an acceptance of the settlement has to be inferred from the facts and circumstances of each case, the law has not
prescribed any particular form of acceptance. It is permissible for the Court to draw a presumption of acceptance from the conduct of the parties
and from the factual materials, exposed in the case, and this is a presumption of fact. Merely because there was no formal parting with or handing
over of the settlement deed by the settlor to the settlee is not a factor by itself to be counted against acceptance of the settlement, especially when
the parties stand in a peculiar relationship and when they were found to be living together. Now we find that the settlor was none else than the
husband of the primary settlee and the father of the other settlees. The husband and wife were admittedly living together at the relevant point of
time. Hence this is not a case where there should be insistence of formal proof of acceptance or declaration of acceptance of the settlement from
the settlees. This Court can certainly infer acceptance from the facts and circumstances of the case.
It has come out in evidence that the deed of settlement was kept in the bureau in the family house. Hence, the question of formal handing over of
the settlement to the primary settlee, namely the second plaintiff, and the second plaintiff keeping the document exclusively in her custody, may not
strictly arise. In Ex.B4, the second plaintiff was enjoined to discharge the mortgage dues to one Harihara Iyer over the property concerned and as
well as to meet the marriage expenses of the sixth plaintiff, who remained unmarried at that time. That the second plaintiff sold Door No.7, Eldams
Road, belonging to her, and with the sale proceeds a sum of Rs.7,000 was paid to the mortgagee Harihara Iyer and further out of the said sale
proceeds, amounts borrowed for the marriage expenses of the sixth-plaintiff were also cleared, has come out in evidence. There was an attempt to
get over this feature on the part of the defendants by advancing a case that the property deed No.7. Eldams Road, belonged to the first plaintiff
But, this was not at all substantiated. Hence, we have to take it that the second plaintiff, in due acceptance of the settlement under Ex.B4,
discharged her obligations cast under it. In my view, this is sufficient to uphold acceptance of Ex.B4. The evidence has also disclosed that the first
plaintiff was demanding a sum of Rs. 100 per month for his expenses from his wife the second plaintiff and she was not acceding to his demand
and this led to a mediation, which mediation also failed. Thereafter, we find a significant sequence of events coming into play. The mediation seems
to have failed on 17-3-1962 as we could see from Ex.B90. The revocation deed Ex.B42 was executed on 6-4-1962. The first-plaintiff also
executed a power of attorney in favour of his sister''s son under Ex.B41 on 7-4-1962. Obviously, the second plaintiff could not keep quiet and she
was obliged to assert her rights and she went to Court by instituting a suit in form pauperis in O.P. No. 272 of 1962 on the file of the City Civil
Court, Madras for a declaration of her title and for other reliefs. The first plaintiff and defendants 1 and 2 were parties to the said proceedings.
Learned counsel for the appellants would very strongly rely on the proceeding in O.P. No.272 of 1962 to say that Ex.B4 was neither accepted nor
acted upon. I will presently advert to this aspect. The first defendant, examined as D.W.1, admitted that the second plaintiff was collecting the rents
and the first plaintiff made a demand of Rs. 100 per month for his expenses from the second plaintiff and the second plaintiff declined this demand
and this led to the mediation. Obviously, the failure in the mediation led to the subsequent developments, referred to above. It is clear that the
second plaintiff, is assertion of her rights given to her under Ex.B4, was collecting the rents. In my view, that the materials placed in the case are
ample enough to enable this Court to hold that Ex.B4 could not suffer the infirmity of non-acceptance of the same by the settlees.
The other contention that Ex.B4 was not acted upon also could not be true. It has been already found that the first defendant, examined as
D.W.1, admitted the collections of the rents by the second plaintiff. However, Mr. P. Veeraraghavan, learned counsel for the appellants, would
submit that the evidence disclosed that the actual rent collections were made only by the first plaintiff ; that the bank transactions relating to item 1
were done by the first plaintiff that taxes therefor were paid by the first plaintiff that proceedings before the rent control forum in respect of this item
were prosecuted by the first plaintiff and the endorsements of discharge of the mortgage dues were made only by the first plaintiff. It has got to be
noted here that the evidence has disclosed that except for a short spell, when the second plaintiff was obliged to file O.P. No.272 of 1962, the
husband, the first plaintiff, and the wife, the second plaintiff were living together and if the first plaintiff had indulged in any act of management, it
could not be in assertion of his title over this item and it could only be for and on behalf of his wife the second plaintiff. As rightly pointed out by the
Court below, the above features cannot be taken to be proof that Ex.B4 settlement deed was not at all acted upon.
Coming to the proceedings in O.P. No.272 of 1962, learned counsel for the appellants points out that the specific case of the first plaintiff, who
was a party is respondent in O.P. No.272 of 1962, was that the settlement deed Ex.B4 never came into operation ; the second plaintiff was not
put in possession ; and possession and enjoyment and management continued with the first plaintiff alone and the second plaintiff did not collect the
rents from the property. The proceedings in O.P. No.272 of 1962 did not fructify into a suit at all, since on a finding being rendered that the
second plaintiff was not a pauper and she should pay the requisite court-fees ; the second plaintiff did not pay the requisite Court-fees and her
prayer for extension of time was also negatived and the proceedings were allowed to lapse. From the proceedings in O.P. No.272 of 1962, it is
not possible to draw a conclusion that Ex.B4 was not acted upon at all. The sequence of events and developments traced above show the
circumstances under which the second plaintiff was obliged to go to Court ; and the feelings of estrangement between the husband and wife alone
got expressed in these proceedings and undue significance cannot be annexed to those proceedings, so far as the present controversy is
concerned. Here, the first plaintiff, the husband and the second plaintiff, the wife have got a common cause to advance, obviously after having got
over the estranged feelings. The preceding discussion obliges us to hold that Ex.B4 stood duly accepted and was acted upon and in view of that
Ex.B42 and Ex.B99 could not have any sanctity in the eye of law and they have to stand ignored.
With regard to item 1 of the suit-properties the defendants want the Court to up-hold the settlement under Ex.B 77 dated 14-1-1961. The
settlement was the subject matter of attack by the plaintiffs on the ground that the first-plaintiff was not at all aware of the contents of this document
and his signatures were obtained by playing a fraud on him. In substance, the plaintiffs would deny the execution of this document Ex.B-77 with its
contents. The defendants would state that the first-plaintiff executed the settlement Ex.B-77 voluntarily and knowing fully well its contents and that
they want to sustain the settlement. Testing the respective contentions, put forth by the parties, the Court below came to the conclusion that there
was lack of proof of execution of Ex.B-77 by the first plaintiff, as claimed by the defendants in accordance with law. Mr. P. Veeraraghavan,
learned counsel for the appellants, would submit that there is no specific denial of execution of Ex.B-77 by the first-plaintiff in the pleadings and
hence there was no burden cast on the defendants to prove execution of Ex.B-77 in accordance with law and in any event the defendants by
examining D.Ws.3 and 5 have proved such execution. The parties knew fully well what exactly were the contentions and case of their opponents
and in the instant case there was a hot contest with regard to the validity of Ex.B-77 and the attack was that the first plaintiff did not execute Ex.B-
77 with its contents in the manner known to law. In substance, the plaintiffs would contend that the mind of the first-plaintiff did not go along with
his hand with regard to Ex.B-77. The parties placed their evidence on this aspect and that was the subject matter of scrutiny by the Court below
and that has been again scrutinised by this Court at the hearing of this Appeal and it is too late in the day to put forth a theory that there was no
specific denial of execution of Ex.B.77 by the first-plaintiff, in the pleadings. One has to find out as to whether Ex.B.77 was executed as per the
mandates of law, before its validity could be upheld, so as to confer title on the first defendant, who is the apparent settlee thereunder. S. 123 of
the Act lays down as to how a gift could be effected. It could only by be a registered instrument signed by or on behalf of the donor and attested
by atleast two witnesses. If the gift is not proved to have been executed as per the above mandates of law, then it has got to be ignored as an
invalid document. It is only in this context, the Court has to lift through the evidence to find out as to whether the document has been shown to have
been executed as per the mandates of law. As to what would constitute attestation for the purpose of S.123 of the Act need not be a matter of
controversy, because S.3 of the Act itself defines what alone would constitute attestation for the purpose of an instrument to be effected under the
Act The definition of ''attested'' under S.3 of the Act runs as follows:-
''Attested'' in relation to an instrument, means and shall be deemed always to have been attested by two or more witnesses each of whom has seen
the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the directions of the
executant, or has received from the executant a personal acknowledgement 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.
One need not stress that the object of attestation is to ensure that there is no fraud or any other vitiating circumstance in the execution of the
instrument. The definition requires three essential ingredients to be satisfied before there could be a valid attestation, (i) The attestor must have
signed either after seeing the executant sign the instrument or affix his mark thereto or some other person sign the instrument in presence of and by
the direction of the executant or after receiving from the executant a personal acknowledgement of his signature of mark or of the signature of such
other person: (ii) the attestor must have signed in the presence of the executant; (iii) The attestor must have signed as a witness and not for any
other purpose. A person merely signing, a document when he has neither seen the executant signing nor received any acknowledgement of his
signature from the executant, cannot be classified as an attestor and his evidence is worth nothing on this crucial aspect. When we find that a
settlement is required by law to be attested by two witnesses, it is not possible to spell out attestation in the absence of satisfactory evidence that
the two attesting witnesses signed the document, after witnessing the signature of the executant or receiving from him a personal acknowledgement
of the signature. For an attestation to be valid, it is mandatory that the attestor should have signed in the presence of the executant. The expression
in the presence of"" connote and denote actual visual presence. It is not possible to bargain out of this requirement by laying down any other lesser
norm. So, there must be unimpeachable evidence with regard to valid attestation as above to enable the Court to uphold the validity of the
instrument of settlement. Two witnesses were examined with reference to Ex.B.77 One was D.W.3. He was a Vakil''s Clerk at Kancheepuram.
He deposed that he signed Ex.B.77 and he wrote Ex.B.77 and the first-plaintiff has signed Ex.B-77. With regard to the execution Ex.B-77 as per
the requirements of S.123 of the Act, the evidence of D.W.3 cannot be counted as satisfying the legal requirements. He did not say that he saw the
first-plaintiff signing the instrument Ex.B-77. Equally so, be did not say that he received an acknowledgement from the first-plaintiff that he had
signed Ex.B-77. It is true that a scribe could also be an attestor, if in fact, he has witnessed the execution and has signed as an attestor as such But,
here the very primary legal ingredient of attestation is lacking, so far as the evidence of D.W.3 is concerned. Apart from the lacunal with regard to
legal requirement for attestation, it has come out in evidence that D.W.3 was a childhood friend of the second-defendant and the second-defendant
was working in the Courts at Kancheepuram. Naturally, the inference is that D.W.3 was highly obliged to the second-defendant. The other
witness, examined as an attestor to Ex.B-77 was D.W.5. He deposed in chief-examination that he knew the first-plaintiff; he has signed Ex.B-77
as a witness; he could not say who has signed Ex.B.77, he (witness) has signed only at the request of the first-plaintiff and the first-plaintiff told him
(witness) that the instrument was being executed in respect of a firewood depot. In the course of cross-examination, he would state that he was
asked to sign at the place marked in pencil and apart from that he did not know anything; and after he signed he did not know who else signed and
he did not know as to whether the first-plaintiff signed then or hereafter or earlier. Certainly his evidence does not come anywhere near the
requirements of attestation within the meaning of S.3 of the Act.
Mr. P. Veeraraghavan, learned counsel for the appellants wants the Court to place reliance on Ex.B-86 to say that the first-plaintiff has admitted
the execution of Ex.B.77. Ex.B-96 was a copy of a reply notice dated 14-3-1961, stated to have been issued by the counsel for the first-plaintiff
to the counsel for one Kailasam, who is also stated to have attested Ex.B.77. The said Kailasam is stated to have sent notice to the first-plaintiff
stating that his (Kailasam''s) signature was obtained on a misrepresentation and he called upon the first-plaintiff to surrender the document, in which
his signature was obtained. As per Ex.B.86, there is a denial of the above allegations. But, I find that Ex.B.86 has not been proved in accordance
with law and hence it is not possible to put forth the case of admission by the first-plaintiff off the execution of Ex.B.77 on this basis. Ex.B.77 has
not been proved to have been executed as per the requirements of law and hence it is not possible to uphold its validity and the title claimed by the
first-defendant under it. The result of the above discussion is the defendants have no title in respect of item 1 by virtue of Exs.B42 and B99 and
equally so in respect of item 1 under Ex.B77. If this is the conclusion to be reached, and I have reached only that conclusion, then item 1 has to
devolve as per the terms of Ex.B4. After the filing of the suit, the second plaintiff passed away and as a result of that plaintiffs 3 to 6 and the first
defendant are entitled to item 1 of the suit-properties in equal shares and they will have only life-estate. The plaintiffs 3 to 6 are entitled to a
declaration to the above effect in respect of item 1 of the suit-properties. With regard to item 2 of the suit-properties, it remained that of the first
plaintiff and on his demise on 7-1-1978 it devolved on plaintiffs 2 to 6 and the first defendant in equal shares. Now that the second plaintiff is no
more; having passed away on 26-4-1975, the sharers are only plaintiffs 3 to 6 and the first defendant. The plaintiffs 3 to 6 are entitled to a
declaration to the above effect. Since the first defendant is also a sharer, having a right in both the items, it is not possible to grant the plaintiffs 3 to
6 a decree for exclusive possession against the defendants. Hence, that relief is negatived. With regard to mesne profits, past and future, the
determination of which has been relegated to separate proceedings by the Court below, the implications flowing on account of the demise of
plaintiffs 1 and 2 will have to be taken note of. The parties are relegated to a separate suit to work out the reliefs of partition and separate
possession. Subject to the above modifications, the judgment and decree of the Court below will stand confirmed and this appeal is dismissed. In
the peculiar circumstances of the case and taking note of the relationship between the parties, there will be no order as to costs in this appeal.