JUDGMENT :

The appellants are the defendants in O.S.No.34 of 1998 on the file of the District Munsif, Tiruvallur, and respondents in A.S. No.45 of 2006, on the file of the Subordinate Court, Tiruvallur,

2. The respondents in the present appeal/plaintiffs filed a suit for the following reliefs.

i. for a declaration of their title to the suit property.

ii. for a permanent injunction restraining the appellants/defendants, their men and agents from interfering with their peaceful possession and enjoyment of the suit property and

iii. for a Permanent injunction restraining the defendants from alienating the suit property.

3. For the sake of convenience, the parties are referred to as per their ranking in the trial court and at appropriate places, their ranking in the present appeal would also be indicated.

4. The case of the plaintiffs is that they are the absolute owners of the suit property through a registered Will dated 30.11.1992 executed by one late Rajagopala Naidu, father of the first plaintiff and grand father of plaintiffs 2 to 5 and that mutation of revenue records was also made subsequent to the death of the said Rajagopala Naidu. It is their further contention that the defendants, on 04.02.1998, attempted to trespass into the suit property which was prevented with the help of some elders in the village.

5. The defendants resisted the suit by contending that the Will dated 30.11.1992 was not true and valid and that late Rajagopala Naidu executed a settlement deed in respect of various properties including 16 cents in Survey No.239B/16 of Soolaimeni Village, Uthukottai Taluk, Tiruvallur District (a portion of the suit property), in favour of the defendants 2 and 3. They, therefore, prayed for the dismissal of the suit.

6. The trial Court after framing appropriate issues and after full contest decreed the suit in part vide its decree and judgment dated 19.08.2005 by holding that,

i. the Will dated 30.11.1992 (Ex.A8) is true and valid.

ii. since the settlement deed dated 19.03.1980 (Ex.B1) was earlier in point of time, late Rajagopala Naidu had no right to deal with the property settled in favour of defendants 2 and 3.

iii. the plaintiffs are entitled only to the remaining extent of land in the suit property which is not covered under Ex.B1 settlement deed.

7. Aggrieved over the same, the plaintiffs filed an appeal in A.S.No. 45 of 2006 before the Subordinate Court, Tiruvallur. The learned Subordinate Judge reversed the findings of the trial court and decreed the suit in full filed by the plaintiffs vide his decree and judgment dated 30.06.2010 on the following grounds.

i. The settlement deed (Ex.B1) was not acted upon.

ii. Ex.B1 was not also proved by the defendants by examining one of the attestors as provided under Section 123 of the Transfer of Property Act and Section 68 of the Indian Evidence Act.

iii. There is no proof of acceptance of the Settlement deed as there was no mutation of revenue records subsequent to the execution of Ex.B1.

8. Now the present second appeal is filed by the appellants/defendants on the following substantial questions of law.

i. "Whether the conclusion of the lower appellate court that Ex.B1 settlement deed has not been proved in a manner known to law is legally sustainable in view of the proviso to Section 68 of the Indian Evidence Act?

ii. Whether the finding of the lower appellate court with respect to Ex.B1 is correct in law in view of the admission of P.W.1 regarding the execution of the Settlement Deed?

iii. Whether the first appellate court is right in applying the provision under Section 123 of the Transfer of Property Act?"

9. The plaintiffs relying on the Will (Ex.A8) executed by late Rajagopala Naidu in their favour had sought for a declaration of their title to the suit property and also for a consequential relief of permanent injunction against the defendants. It is admitted that late Rajagopala Naidu had three sons by names, Bakthavachala Naidu (husband of the first defendant and father of def