B. KEMAL PASHA, J.

(1) Is there any importance in medical evidence to arrive at the presence of or lack of the mental element of disposing state of mind?

(2) Whether the case pleaded by the plaintiff is the lack of free consent in the execution, or the denial of execution of Ext.B1?

(3) Is there any difference in the manner of proof of a gift deed when lack of free consent in the execution is pleaded or where the execution as such is denied?

(4) Is this a case wherein a simple suit for partition, maintainable?

(5) If entitled, what should be the share to which the plaintiff is entitled?

1. Precisely, these are the matters arise for consideration in this Second Appeal.

2. O.S. No. 198/2006 of the Munsiff's Court, Koyilandy is filed as a simple suit for partition, seeking partition and separate possession of the ½ share of the plaintiff over the plaint schedule properties by metes and bounds and for mesne profits.

3. The plaintiff and late Madhavi Amma are the only two daughters of late Rarappan Nair and his wife. His wife pre-deceased Rarappan Nair. Madhavi Amma also pre-deceased Rarappan Nair. Rarappan Nair died on 17.05.2006.The first defendant is the husband of late Madhavi Amma. Defendants 2 and 3 are daughters of the first defendant and Madhavi Amma. The plaintiff and defendants 1 to 3 are the legal representatives of Rarappan Nair.

4. O.S. No. 198/2006 was dismissed by the Munsiff's Court, Koyilandy by finding that Ext.B1 settlement deed executed by Rarappan Nair in respect of the plaint schedule property has taken away the right of the plaintiff to claim any share over the plaint schedule property. Aggrieved by the judgment and decree, the plaintiff preferred A.S. No. 5/2008 before the Subordinate Judge's Court, Koyilandy. The lower appellate court also concurred with the findings entered by the Munsiff's Court, and dismissed the appeal.

5. This court has admitted this second appeal on the following substantial questions of law:

"(1) Whether the execution of B1 deed is done after fulfilling the mandatory requirements under Section 58 of Registration Act?

(2) Whether the denial of expert opinion with regard to disputed signature is proper under S.73 of the Evidence Act?

(3) Whether the attesting witness's evidence identifying the signature of the Sub Registrar as that of the executant of B1 is sufficient to prove the execution of B1?

(4) Whether non examination of identifying witness in absence of examining the second attesting witness or any other witness who had direct knowledge on the preparation or execution of B1 is sufficient to prove the execution of B1 under the Evidence Act?"

6. Heard the learned counsel Sri. P.B. Krishnan for the appellant and learned counsel Sri. G. Sreekumar Chelur and learned counsel Smt. M. Shajna for the respondents.

7. The learned counsel for the appellant has argued that both the courts below have not approached the questions involved in the suit in its correct perspective, and were carried away by the fact that Ext.B1 is a registered settlement deed. It has been argued that the case forwarded by the plaintiff in the suit is not one of lack of free consent or the exercise of vitiating elements of free consent such as fraud, coercion, undue influence or misrepresentation and whereas, what has been pleaded is the lack of execution as such. It has been argued that almost for two years, immediately preceding his death, Rarappan Nair was bedridden, weak and physically incapable even to move or travel. He had no disposing state of mind or even sound state of mind during the period in which Ext.B1 was allegedly executed. He was incapable of giving any instructions for the preparation of Ext.B1 or any document. It has been specifically pleaded in the plaint that Ext.B1 was not one executed by Rarappan Nair; whereas the same was falsely and fraudulently fabricated by defendants for forwarding false claims over the plaint schedule property and to cheat and defraud the plaintiff.

8. Per contra, the learned