JUDGMENT :

R.S.A No.146 of 2006 arises from O.S No.458 of 1993. It is a suit for a declaration that Ext A2 = Ext B3 Settlement Deed executed by the plaintiff(father) in favour of his daughters(defendants) are not binding on the plaintiff and the plaint schedule property. Pending the suit, the original plaintiff(father) died. His son and daughter in law and his wife got impleaded as additional plaintiffs 2 to 4. Wife passed away pending the suit.

2. R.S.A No.201 of 2006 arises from O.S No.250 of 1995 filed by the daughters against their brother, for prohibitory injunction against interfering with their possession and enjoyment of the plaint schedule property.

3. The suits were jointly tried. O.S No.458 of 1993 was taken as the leading case. O.S No.458 of 1993 was decreed and O.S No.250 of 1995 was dismissed. The decree was confirmed in appeal. It is challenging the same that these Regular Second Appeals have been filed by the daughters-sisters. For the sake of convenience the parties are referred to according to their status in O.S.No.458 of 1993.

4. The plaint schedule property has an extent of 13 cents. Admittedly the property belonged to the original plaintiff – father. He executed Ext B2 Will dated 22.09.1977 bequeathing the property in favour of his daughters(appellants-defendants). Subsequently he executed Ext A11 Will dated 15.07.1991 bequeathing the property in favour of his son and daughter in law(respondents). Thereafter, on 31.10.1992 he executed Ext A2 = Ext B3 Settlement Deed in favour of his daughters(appellants-defendants). This was followed by Ext A1 Cancellation Deed dated 13.11.1992, cancelling the Settlement Deed. The original plaintiff – father filed the suit against the daughters challenging the Settlement Deed on the ground that the same is vitiated by fraud, collusion, misrepresentation and undue influence. It was claimed that he was made to believe that a Will is being executed. The defendants defended the document.

5. The trial court found that the evidence of DW3, the witness to Ext A2 = Ext B3 Settlement Deed, is not reliable and that the circumstances indicate that Ext A2 = Ext B3 settlement deed is vitiated. Accordingly, the suit was decreed. The decree was affirmed in appeal.

6. Heard the learned counsel Sri.P.Deepak on behalf of the appellants – defendants, and Sri.P.K.Subramonian on behalf of the respondents – plaintiffs, on the following substantial question of law:-

“(i) Do the evidence on record establish that Ext A2 = Ext B3 Settlement Deed is vitiated for the reasons alleged by the plaintiffs?

(ii) Has the plaintiff discharged the burden to substantiate the challenge against Ext A2 = Ext B3?”

7. Sri.P.Deepak, learned counsel for the appellants would contend that, even according to the plaintiff(father), he intended to execute a document; his allegation is that he did not intend to execute a settlement deed but, a Will. When there already existed Ext A11 Will in favour of the son and daughter in law, there is no reason why another Will should have been executed in their favour. Execution of any document would necessarily be to interfere with or modify the disposition under Ext A11 Will. Therefore, that he intended to execute a settlement deed is only probable, it is contended. It is further argued that, the production of original prior deeds namely Exts B1 and B3 by the defendants establish that the father intended to convey the property to the defendants. The courts went wrong in discarding the evidence of DW3, the witness to the document. At any rate, Ext A11 Will has not been proved, in the absence of which the title of the plaintiff could not be declared, it is contended.

8. The fact that the father – the original plaintiff was a feeble minded person, is evident from the successive documents he executed in favour of the daughters and the son changing the beneficiary one after the other. The reason for execution of Ext B2 Will bequeathing the property in favour of the daughters was suggested to be t