1. The plaintiffs are the appellants. The second appeal has been filed against the decree and judgment, dated 5.12.2000, passed in A.S. No. 12 of 1996 on the file of the learned Subordinate Judge, Kancheepuram, confirming the judgment and decree, dated 18.12.1995, passed in O.S. No. 1713 of 1991 on the file of the learned District Munsif, Kancheepuram.

2. The substantial questions of law framed at the time of admission are as follows:

“1. Whether the unconditional settlement will become invalid merely by revoking the same by the settlor without challenging the same before the Court of law and will it not against the letter and spirit of Section 126 of the Transfer of Property Act?

2. Whether the registered unconditional settlement deed viz., Exhibit A-1 found in effective is correct as the same was not challenged by the settlor or interested persons in the Court within the prescribed time of three years?

3. Whether the settlement deed viz., Exhibit A-1 went unchallenged before the Court of law by the settlor except the deed of Revocation shall loose its validity by contesting the same by third parties claiming title under void and invalid sale deed Exhibit B-2?

4. Whether the onus of proof lies on the plaintiff with regard Exhibit A-1 being the registered settlement deed executed in their favour while the validity of the same was questioned by the third parties claiming right under the void sale deed and as per Section 79 of the Evidence Act is it not the duty of the persons who alleges contrary to the registered instrument should prove the same? and

5. Whether the settlement viz., Exhibit A-1 wherein the settler has affixed his thumb impression due to shivering and weak eyes sight without assigning his signatures alone shall be taken as the ground to prove against the plaintiffs while all other circumstances are in their favour?”

3. The brief facts:

The plaintiffs are the owners of the property bearing Door No. 12-B located at Chairman Swaminatha Mudaliar Street, Pillayarpalayam, Kancheepuram. The plaintiffs’ grand father, Kuppuswamy Mudaliar, executed the settlement deed, dated 26.5.1981, in favour of the plaintiff out of love and affection. The settlement deed was accepted and acted upon and the tax assessment was altered to the name of the plaintiffs in the municipal records. Though in the settlement deed it was mentioned as undivided half share, it was actually a divided half share, which is the back portion of door No. 12-A. The front portion had been allotted to one Ekambaram and after his death, to his legal heirs i.e., his son-the first defendant, his wife-the second defendant and his two daughters.

4. The defendants colluded with the settlor, Kuppuswamy Mudaliar and after purporting to have cancelled the settlement deed they got the sale deed, dated 4.11.1981 from Kuppuswamy Mudaliar as if Kuppuswamy Mudaliar, had title to the suit property. Both the revocation deed as well as the sale deed are illegal and invalid. The settlement deed cannot be revoked as the executant did not reserve any power of revocation. Therefore, neither the revocation deed nor the consequent sale deed are valid. The defendants manoeuvred to obtain the sale deed in their favour when the Kuppusamy Mudaliar was not in a sound and disposing state of mind. As the defendants made hostile claim, the plaintiffs have filed the suit for declaration of title. The defendants have prayed for alternative relief of decree for partition and separate possession of half share, preferably the back portion.

5. The suit was contested by the defendants under the following contentions:

(i) The so-called settlement deed was not executed by Kuppuswamy Mudaliar;

(ii) The alleged settlement deed was not executed freely, voluntarily and willingly;

(iii) By making Kuppuswamy Mudaliar in an unconscious state, by injecting sedatives, thumb impression was obtained in a document purporting to be a settlement deed;

(iv) On coming to know of the circumstances, Kuppuswamy Mudaliar ex