The principle of non est factum, which shifts the burden of proof to the party seeking to sustain a document allegedly vitiated by fraud or undue influence, is applicable only when the executant is a party to the proceeding.

This Second Appeal is directed against the judgment of the learned Principal District Judge, Madurai, in A.S. No. 66 of 1985 confirming the judgment of the learned Subordinate Judge, Madurai, in O.S. No. 177 of 1982. The plaintiffs in the suit are the appellants in the above Second Appeal.

2. According to the plaintiffs the suit property originally belonged to three brothers, Subramanian, Thangavel, Velmurugan, Murugan Asari is one of the ‘Pangalis’ of the said individuals. Subramanian left behind his son Senthilvel and his wife Rakkammal on his death before 1906. On 30.3.1906, while Thangavel was a minor, his mother as guardian, and Thangavel and Velmurugan Asari effected a partition through a registered document. The suit property was allotted to the share to Velmurugan. The said share was in the absolute and exclusive possession of Velmurugan and he died in the year 1936 leaving behind his wife Palaniammal as his sole heir, who succeeded to the suit property and was in exclusive possession and enjoyment in her own rights. Defendants 1 to 3, representing Viswa Brahmana Dakshina Mahajana Sangam (hereinafter called “Sangam”) with the ulterior motive of taking over the property, brought into existence a sale deed dated 20.1.1941 in favour of one Rajamani, a member of the Sangam, by obtaining the signature of Palaniammal fraudulently. Subsequently, a sale deed was executed by Rajamani in the name o f Sangam. Palaniammal after coming to know about the fraud played upon her, filed a suit in O.S. No. 164 of 1950 on the file of the District Munsif, Madurai, to declare her rights and for possession. The said suit was decreed in her favour and the appeal filed against the decree in A.S. No. 23 of 1952 was also dismissed and consequentially, Palaniammal took possession of the property and was in possession and enjoyment of the suit property.

3. The said Sangam who lost the suit earlier, again conspired to acquire the property illegally and by deceiving Palaniammal who had by that time become partly deaf and blind, got a registered deed of Charitable settlement dated 19.10.1970. In accordance with the terms of settlement, the property was to vest with one Ramasami Asari, member of the Sangam. The said document contains incorrect particulars and came to be executed-by Palaniammal by coercion and fraud, without allowing any of her relatives to have access to her and without any independent advice. Therefore, the said document cannot bind either Palaniammal or her heirs in any manner. Neither the Sangam, nor Ramaswamy Asari can claim any right over the property. Defendants 4 to 8 are the tenants of the property. Palaniammal, died in the year 1974. The plaintiffs are the only legal heirs of Palaniammal and hence are entitled to the property. The settlement will not bind the legal heirs and hence the suit to declare the settlement deed as invalid and for possession of the property. It was further pleaded that in accordance with the terms of the partition deed, executed in the year 1906, the sharers were entitled only to execute the properties among themselves and they were not entitled to transfer their respective shares to anybody else.

4. In the written statement while denying the plaint claims, it was contended mat defendants 1 to 3 were not officebearers of the Sangam at the relevant period. The allegation that Sangam had cheated Palaniammal and got the execution of the document dated 2.1.1941, was also denied. The said transaction was between Palaniammal and one Rajamani Asari. In that suit, the main contention was that the said Palaniammal was having some problems from her husbands brother and nephew and criminal complaints had als o filed against them. Therefore, even as early from that time Palaniammal was not having good relationship with the plaintiffs and their “Pangalis”. The Sangam did not help the said Rajamani Asari in any manner. As far as the present transaction was concerned, the allegation that Paianiammal was che