Settlement deed invalid without proof of attestation under Section 68, Evidence Act; scribe not attesting witness without animo attestandi.

JUDGMENT

This appeal is against the judgment in A.S. No. 12 of 2017 on the files of Sub Court, Cherthala, which reversed the judgment and decree in O.S. No. 165 of 2014 of the Principal Munsiff Court, Cherthala.

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

2.1. The property covering 10 cents originally belonged to late Madhavan, the father of the 2^nd plaintiff and defendant and the husband of the 1^st plaintiff. Late Madhavan obtained kudikidappu right as per Pattayam No. 6518/1972. On his death, the plaintiffs claimed partition. The defendant resisted the suit contending that by settlement deed No. 275 of 1995 of SRO, Kuthiathodu, the father had gifted the entire property to him. The plaintiffs amended the suit contending that the gift deed is null and void since it was executed by playing undue influence on the father by the defendant.

2.2. On behalf of the plaintiffs Exts. A1 to A8 documents were produced and PW1 was examined. On behalf of the defendant Exts. B1 to B4 documents were produced. Though Ext. B2 settlement deed was tendered in evidence, the defendant did not mount the box to adduce oral evidence nor examine any of the attesting witnesses to prove the settlement deed in terms of Section 68 of the Indian Evidence Act, 1872.

2.3. The Trial Court, on appreciation of the oral and documentary evidence decreed the suit ordering the property to be partitioned among the plaintiffs and the defendant. The 1st plaintiff was entitled to get 1/3 share, the 2nd plaintiff was also entitled to get 1/3 share, and the defendant was entitled for the remaining 1/3 share. Aggrieved, the defendant preferred A.S. No. 12 of 2017 before the Sub Court, Cherthala. The First Appellate Court reversed the findings of the Trial Court on the ground that it is the burden of the plaintiffs to prove that the execution of Ext. B2 settlement deed was vitiated. Accordingly, the appeal was allowed and hence the present appeal.

3. On 26.06.2025 this Court framed the following substantial questions of law:-

Whether the Lower Appellate Court “(i) is justified in non-suiting the plaintiff on the basis of Ext. B2 document which is not properly tendered into evidence and proved?

(ii) Whether the Lower Appellate Court is justified in upholding Ext. B2 Settlement Deed, which is in fact a gift deed for all purposes which requires to be affected in terms of Sec. 123 of the T.P. Act, especially when the execution of the said document is not supported by two witnesses as contemplated by the Statute?”

4. Heard Sri. K. B. Pradeep, the learned Counsel appearing for the appellants and Sri. Adarsh S., the learned Counsel appearing for the respondent.

5. The only question to be considered by this Court is, whether Ext.

B2 settlement deed is proved in terms of Section 68 of the Indian Evidence Act, 1872? Once the defence was delivered stating that the property is not partible because of Ext. B2 settlement deed, the appellants amended the plaint and raised specific challenge to the execution of the deed. Therefore, it was incumbent upon the defendant to have examined at least one attesting witness in terms of proviso to Section 68 of the , since the execution itself is disputed.

6. That apart, a cursory glance at the settlement deed shows that though there are two witnesses mentioned in the same, only one has affixed his signature as a witness. The other witness is none other than the scribe. At this point of time, it is not possible for this Court to say as to whether the attesting witness had signed the gift deed with a proper animus. From a reading of the concluding portion of the gift deed, it appears to this Court that