The burden of proof regarding allegations of fraud or misrepresentation in a settlement deed lies with the alleging party, and the deed remains valid if not proven otherwise.

JUDGMENT :

(EASWARAN S., J.)

The present appeal is preferred by the legal heirs of the original plaintiff aggrieved by the judgment and decree in OS No.720/2010 on the files of the Additional Munsiff Court – I, Kozhikode, as confirmed by A.S.No.15/2015 on the files of the Additional District Court – IV, Kozhikode.

2. The brief facts necessary for the disposal of the appeal are as follows:

The plaint schedule property was purchased by the original plaintiff by virtue of Karayma deed bearing No.361/1967 and thereafter, obtained purchase certificate bearing No.299/1974. While so, the original plaintiff in the year 2008 executed a settlement deed bearing No.3558/2008 in favour of the sole defendant on 01.11.2008. Thereafter, the plaintiff realised that he was misrepresented or he was coerced to execute the settlement deed and therefore on 07.04.2010, the plaintiff caused to issue a lawyers notice demanding the defendant to cancel the settlement deed, which was caused to be executed by playing fraud and misrepresentation. It is contended that the defendant, who is none other than the daughter of the original plaintiff, agreed to execute the conveyance deed re-conveying the property covered by the settlement deed and accordingly, entrusted the original settlement deed with the original plaintiff. However, finding that no attempts were made by the daughter to re- convey the property, suit was instituted. The defendant appeared and contested the suit by contending that the suit is not maintainable and that the plaintiff out of love and affection had voluntarily with full knowledge executed the settlement deed bearing No.3558/2008 in respect of the plaint schedule property. It was also contended that the allegation of fraud and misrepresentation is totally false inasmuch as the plaintiff had executed the settlement deed with full knowledge. In support of the contention, the original plaintiff produced Exts.A1 to A3 ((a) & (b)) and examined himself as PW1. On behalf of the defendant, Exts.B1 to B9 documents were produced and DW1 and DW2 were examined. On the basis of the evidence, the Trial Court framed the following issues:

“1. Whether the settlement deed was executed by the plaintiff out of misrepresentation and fraud played by the defendant?

2. Whether the plaintiff is entitled to get a declaration as prayed for?

3. Relief and costs?”

The Trial Court, on appreciation of evidence, found that the original plaintiff could not establish that the settlement deed was executed by way of fraud and misrepresentation. On contrary, the Trial Court on evidence found that the defendant was successful in establishing the execution of the settlement deed by examining DW2, who was a person attached to describe of Ext.A1 deed. It was further found that though the original plaintiff alleged that he was suffering from mental ailment occasionally and that he is a mentally challenged person, no evidence was adduced to prove the same. Thus, on appreciation of material evidence, the Trial Court dismissed the suit.

3. Aggrieved by the dismissal of the suit, the legal heirs of the original plaintiff preferred AS No.15/2015. The First Appellate Court concurred with the finding of fact rendered by the Trial Court and dismissed the appeal, against which the appellants have preferred the present appeal by raising the following substantial questions of law:

”1. Whether the courts below are justified in considering that execution of Ext.A1 is proved by the defendant more so when under Section 68 of the EVIDENCE ACT Ext.A1 cannot be used as evidence since none of the alleged attesting witnesses as contemplated by Section 123 of the Transfer of Property Act were examined?

2. Are not the reasons stated by the