1. Plaintiff is the appellant. Suit was for partition and allotment of 1/3rd share in plaint schedule property to plaintiff declaring that a gift deed in favour of the predecessor of defendants 1 to 3 over that property is void. In the alternative setting aside of that deed, if so warranted, and, declaring that such deed is not binding on plaint property and plaintiff was also sought for. Suit was dismissed by the learned Sub Judge, and aggrieved, the plaintiff has preferred this appeal.

2. Plaintiff, late Sundaresan (husband of first defendant and father of defendants 2 and 3), and fourth defendant are the children of one Kamalakshy. She had another son, namely, Rajappan, who, as unmarried predeceased her. After the death of her husband, Kamalakshy and her children entered into Ext.A1 partition deed in which 'A' schedule was allotted to Kamalakshy and her son Rajappan. 'A' schedule has an extent of 23.125 cents and, on death of Rajappan, Kamalakshy became the absolute owner of that property. Later Kamalakshy executed a gift deed over 9 cents of land out of the above property in favour of plaintiff. Remaining extent of property in 'A' schedule, 14.125 cents, is the plaint property. Kamalakshy died on 14.9.1992. Demand for partition of plaint property by plaintiff to his brother, Sundaresan, and after his death to defendants 1 to 3 as well were not heeded, and, on enquiry he came to know that at the instance of his brother, Sundaresan, a deed had been registered over the plaint property as if it had been gifted to him by the mother, Kamalakshy, is his case. Gift deed allegedly executed by late Kamalakshy in favour of Sundaresan is a fabricated document and Kamalakshy was not having the capacity to identify or understand matters or execute document at her fag end of life, is his further case. Plaintiff claimed partition of his 1/3rd right in the plaint property seeking declaration that the document obtained by his brother over that property is void, and in the alternative, for setting aside that deed if so found necessary. Suit was contested by defendants 1 to 3 alone, and the 4th defendant remained exparte. Suit claim for partition and declaration was resisted by defendants 1 to 3 contending that late Kamalakshy had executed Ext.B2 gift deed dated 22.5.1992 over the plaint property in favour of Sundaresan. Accepting the gift Sundaresan was in possession and enjoyment of that property till his death and, thereafter, these defendants are in absolute possession and enjoyment of the property as its absolute owners, according to them. Challenge against the gift deed as a fabricated document was resisted by the defendants, who disputed the partible right claimed by plaintiff over the plaint property.

3. Fourth defendant in the suit, daughter of Kamalakshy and sister of plaintiff, remained exparte.

4. On the issues framed on the pleadings of parties both sides adduced evidence. Plaintiff was examined as PW1 and Ext.A1 partition deed was marked on his side. First defendant was examined as DW1 and Exts.B1 and B2 were marked. Appreciating the materials produced with reference to the pleadings of parties and submissions made by their counsel, learned Sub Judge negatived the challenges canvassed by plaintiff to impeach Ext.B2 gift deed as a fabricated document. Suit was dismissed holding that the plaintiff and fourth defendant have no partible right over the property, Ext.B2 gift deed has come into effect and the property is not available for partition. That decree of dismissal is challenged in this appeal.

5. I heard counsel on both sides. Learned counsel for appellant/plaintiff placing emphasis on issue no.2 raised in the suit over the validity of Ext.B2 contended that when execution of that gift deed had been challenged by plaintiff without proof of its due execution by examining at least one of the attestors of the deed in the suit as mandated under Section 68 of the Evidence Act it cannot be used in evidence. None of the attesti