Onus lies on the executants to prove.

Plaintiffs in O.S.No.192 of 1977 on the file of the District Munsif, Cuddalore, are the appellants in both the appeals. They filed the suit for declaration of the 1st plaintiff’s title to A schedule property and for recovery of possession of the same besides partition and separate possession of 4/6th share in B schedule properties. The trial Court granted a decree declaring the first plaintiff’s title to the A schedule properties and holding that the plaintiff’s were entitled to 4/18th share in B schedule properties except in item No.6 and directing a division thereof. There was an appeal by defendants 1 and 2 in the Court of Subordinate Judge, Cuddalore, in A.S.No.142 of 1979 and another appeal by defendants 3, 4 and 6 in A.S.No.143 of 1979. The Subordinate Judge allowed A.S.No.142 of 1979 in part and held that the fist plaintiff was entitled only to l/3rd share in the A schedule property and recovery of possession thereof. He dismissed the said appeal in other respects. The learned Subordinate Judge allowed Appeal No. 143 of 1979 and modified the decree of the lower court granting equity claimed by defendants 3, 4 and 6 in the properties purchased by them.

2. Though the plaintiffs could have filed one second appeal and questioned the judgment of the lower appellate court, the plaintiffs have chosen to file two second appeals. As they relate to the same subject matter, they were heard together and a common judgment is being delivered now.

3. The first question relates to the share of the plaintiffs in A Schedule properties. Before proceeding further, I must set out the relationship of parties. The first plaintiff is the second wife of one Velayutha Padayachi and plaintiffs 2 to 4 are her daughters. Defendants 1 and 2 are the sons of Velayutha Padayachi through his first wife. Defendants 3 to 6 are alienees of some of the suit properties from defendants 1 and 2.

4. The case of the plaintiffs is that the plaint A schedule property belonged to Velayutha Padayachi absolutely and exclusively and he has settled the same on the plaintiffs by a registered deed dated 28. 1955 marked as Ex.A-1.

5. The contention of the defendants is that A schedule property was joint family property and the settlement deed was null and void. While the trial Court accepted the case of the plaintiffs, the lower appellate court has accepted the case of defendants, and granted a decree for l/3rd share which according to the lower appellate court belonged to Velayutha Padayachi 5. The evidence relating to A Schedule properties let in by the plaintiffs comprised of the oral evidence of P.Ws.1 and 2 and Exs.A-1 to A-3. Ex.A-1 is the registered settlement deed in which there is a clear recital that the property belonged absolutely and exclusively to the settlor Velayutha Padayachi. Nothing is suggested on the side of the defendants as to why Velayutha Padayachi should insert a false recital in Ex.A-1 and treat the property as his exclusive property as against his sons. The recital in the document which was executed about 21 years prior to the death of Velayutha Padayachi will have great weight in the matter of consideration of the character of the properties.

6. Ex.A-2 is the notice issued by the first plaintiff to defendants 1 and 2 on 18. 1974, claiming exclusive right to A Schedule property as the settlee under Ex.A-1. A reply notice was issued by defendants 1 and 2 under Ex. A-3 dated 19. 1974. There is no claim in Ex. A-3 that the A schedule properties were joint family properties and that the settlement in favour of the first plaintiff was not valid. On the other hand, the express recital in paragraph 1 of Ex.A-3 is as follows:

“It is true that your client is a legally wedded wife of my clients father Velayutha Padayachi and also admits the settlement deed mentioned in your notice with regard to the properties mentioned in A schedule.”

In the second paragraph of Ex.A-3, it is stated that as per the settlement deed, the first plaintiff did