Whether a plea of want of free consent to the execution of a document amounts to denial of execution within the meaning of the proviso to Section 68 of the Indian Evidence Act?

2. Challenging the concurrent findings entered by the III Additional Subordinate Judge's Court, Kozhikode in O.S.No.939 of 2010 followed by those of the First Additional District Court, Kozhikode in A.S.No.196 of 2013, the defendants in the suit have come up in Second Appeal.

3. The suit is one for the cancellation of Exhibit-A1 settlement deed, on the ground that it is hit by coercion, which has resulted in lack of free consent. A Consequential relief of recovery of possession has also been sought for. The plaintiff is the mother of late Mohanan. The defendants are his wife and children. Mohanan died on 30.06.2010.

4. According to the plaintiff, Mohanan was born to her in her relationship with Ramadasan. Subsequently, Ramadasan was not heard of, and later it was revealed that he had another wife and children. Thereafter, the plaintiff was married to one Gopinath, through whom, one daughter named Sreelatha and a son named Aneesh Kumar were born. According to the plaintiff, Mohanan was a prodigal son, and he used to entertain frequent quarrels with the members of the family as well as the neighbours and public. While he was a student, he had even kept the Headmaster of the School in a locked room, which resulted in his throwing out of the School. Subsequently, he went away and for quite some years, his whereabouts were not known.

5. Ultimately, the plaintiff came to know that he was working in the Indian Military, and subsequently, he abandoned that job also. Again, he was entertaining frequent quarrels with the plaintiff and other members of the family, and also the public. A series of criminal cases were registered against him. He used to threaten the plaintiff and her other children born in Gopinath, with death. He threatened the plaintiff by demanding for the execution of Exhibit-A1 settlement deed in respect of the plaint schedule property in his favour, whereby, the plaintiff, out of fear of life, happened to execute Exhibit-A1.

6. According to the plaintiff, by exerting force, she was taken to the Document Writer's Office, where her signature was obtained in the document without making her aware of the contents of the document and thereafter, she was taken to the Sub Registrar's Office, where the said document was got registered. According to the plaintiff, the said document is an outcome of coercion and on that ground, the present suit was filed immediately after the death of Mohanan.

7. Defendants resisted the suit by contending that Exhibit-A1 document is, in fact, a sale deed even though its nomenclature is that of a settlement deed, since sizable consideration of an amount of Rs. 1,66,000/- was paid by Mohanan to the plaintiff to get the said document executed. The lack of free consent on account of coercion etc. was denied. It was also contended that the document had already come into effect and possession of the property was handed over to Mohanan immediately on the execution of Exhibit-A1.

8. On the side of the plaintiff, PW1 was examined and Exhibit-A1 to Exhibit-A46 were marked. On the side of the defendants, DW1 was examined and Exhibit-B1 to Exhibit-B11 were marked. The trial court found that the original of Exhibit-A1 was not produced by the defendants and further, they had not examined any of the attesting witnesses to prove the said document and mainly on that ground, disbelieved the contentions of the respondents. The trial court found that Exhibit-A1 was the result of coercion and consequently, it lacked free consent. On these grounds, the trial court decreed the suit in terms of the plaint. The trial court, on the aforesaid reasoning, held that Exhibit-A1 is not a genuine document and its execution was denied by the plaintiff.

9. Aggrieved by the judgment and decree, the defendants preferred A.S.No.196 of 2013 before the Distri