DHARMAN Vs. MARIMUTHU

JUDGEMENT

(1.) DEFENDANTS 2 to 7 in O. S. No. 338 of 1977 on the file of the Court of District Munsif, Ariyalur, who succeeded before the Trial Court, but lost before the First Appellate Court, are the appellants in the above second appeal. The suit came to be filed by the respondent/plaintiff for declaration of' the plaintiffs title over the suit properties and for permanent injunction restraining the defendants from interfering with the peaceful possession of the suit properties by the plaintiff or in the alternative the relief of possession and future mesne profits and for costs. The plaintiff is the brother's son of the first defendant, who died pending suit. The second defendant is the son-in-law of the first defendant and the third and fourth defendants are the brothers of the plaintiff and the first defendant respectively. DEFENDANTS 5 to 7 are daughters of the first defendant, who were impleaded as the legal representatives of the deceased first defendant. The case of the plaintiff was that the first defendant executed a registered gift deed in his favour on 1. 10. 1977 marked as ex. A-6 in respect of the suit properties, that the settlement came into force immediately and the plaintiff began cultivation of suit items 1 to 6, that subsequently, defendants 2 to 4 kidnaped the first defendant and caused the issuance of a notice with false allegations, marked as Ex. A-3, that the plaintiff issued a reply to the same, marked as Ex. A.-5 and that the plaintiffs possession was sought to be disturbed by the defendants necessitating the filling of the suit for the reliefs referred to supra. It was also the plea of the plaintiff that the daughters of the first defendant neglected and were not maintaining the first defendant properly, that it was the plaintiff, who was taking care of him and maintaining him, that as a matter of fact, the plaintiff had spent Rs. 1,300 towards the medical expenses of the first defendant, who had no male issue as such and the document Ex. A-6 came to be executed out of love and affection, and in recognition of the help, assistance and services that were being rendered by the plaintiff. The first defendant was said to have also cancelled Ex. A-6 gift deed by a deed of revocation dated 25. 11. 77 marked as Ex. B-3. The case of the plaintiff was that the first defendant was in good and sound state of health when he executed the gift deed dated 1. 10. 1977. The written statement came to be filed by defendants 1 to 4 even when the first defendant was alive. It was contended therein that the settlement deed dt. 1. 10. 1977 is not true and it was not acted upon, that the plaintiff has not spent Rs. 1,300 towards medical expenses of the first defendant as claimed, that the first defendant never treated the plaintiff as a male issue for him, that the allegation that the defendants have kidnapped the first defendant or was responsible for the issuance of notices as well as the execution of the deed of cancellation of the gift deed in plaintiff's favour was incorrect, that the notice sent by the first defendant contained true and correct facts as to what had happened and that the first defendant neither had any intention to execute any gift deed nor was possessed of the required mental condition or was in sound state of mind to know the contents of the settlement deed. The first defendant, it was further contended, was forced to put his thumb impression in a deed, that when he later attained consciousness, he came to know from the villagers about his having executed a gift deed and immediately thereafter he took action by issuing a notice and subsequently executing a cancellation deed. While claiming that the first defendant was sufficiently taken care of by the daughters and son-in-laws, it was also claimed that the first defendant had no justification or reason for executing a gift deed of all his properties in favour of the plaintiff disinheriting the daughters. DEFENDANTS 2 and 4 were contended to be unnecessary parties. On the above the defendants prayed that the suit should be dismissed as unwarranted.

(2.) ON the above claims and counter claims, the suit came to be tried and both sides adduced oral and documentary evidence. After considering the materials on record, learned Trial Judge by his judgment and decree dated 27. 9. 1980 held that the plaintiff has failed to prove that the first defendant executed the settlement deed dt. 1. 10. 1977 when he was in sound state of mind and out of his free will and he has not also produced any evidence to substantiate his claim of kidnapping of the first defendant by other defendants before issuing the Notice Ex. A-3 and effecting a cancellation of the gift deed in favour of the plaintiff. Learned Trial Judge after a careful analysis has chosen to view the evidence of P. W. I to be not acceptable, in contrast to the evidence of the defendants, which found favour of acceptance with the learned Trial Judge, but ultimately recorded a finding that the gift deed dated 1. 10. 1977 was not a true and valid document and it was neither binding upon the defendants nor was acted upon. The plaintiff was also held to be not entitled to protect his possession or recover possession. The plea that defendants 2 to 4 were unnecessary parties were rejected.

(3.) IN Sayyaparaju Surayya v. Koiurs Kondamma, AIR 1950 mad. 239 a Division Bench of this Court held that an admission by the executant of a document of having affixed his or her thumb impression does not amount to admission of execution. It was held therein by the Division Bench as hereunder: ' ; The admission required, therefore, is admission of the execution of the document. It may be a sale-deed, it may be a mortgage deed. It is not enough for the person, who is the ostensible executant, to admit his signature on a paper on which, it may be, the document is ultimately engrossed. The identity of the papers on which the signature occurs is not sufficient. If a man says that he signed a blank paper on the representation that it was required for presenting a petition, as in the present case or i f a man signs a completed document on the representation that his signature or thumb impressions is required as an attesting witness, that admission of the signature or thumb impression in those circumstances cannot be construed to be an admission of the execution of the document. Far from its being an admission, it is a clear and unambiguous denial of the execution of the document. He must admit, in order to attract the provisions of S. 35 (l), that he signed the document, viz. a sale-deed or a mortgage deed or a lease deed, as the case may be. Some light is thrown on this question by the observations of the Privy Council in Puranchand Nahatta v. Monmothonath Mukherji, 55 Cal. 532: A. I. R. (15)1928 P. C. 38. No doubt the question which their Lordships of the Judicial Committee were considering was different from the question now before us. But their Lordships were defining the expression' ; person executing' ; in the act, and it is pointed out that the expression is not identical with the' ; person signing' ;.' ; They mean' ; to quote the words of their Lordships at p. 537' ; something more, namely, the person who by a valid execution enters into obligation under the instrument.' ; The admission of execution, therefore, must amount to an admission that the person admitting entered into an obligation under the instrument; in other words, that he had executed the document, signed it as a sale deed, mortgage deed or a lease deed, as the case may be.' ; It was reiterated further therein by adverting to an earlier Full Bench judgment reported in Guruviah v. Venkatarathinam, I. L. R. 1947 Madras page 833, that the mere fact that the signature on the document was admitted is not to be treated as execution of the document so as to make it the imperative duty on the part of the Registrar to register the same and the admission of signature cannot be taken to be either conclusive or as constituting admission of execution of the document.