@JUDGMENTTAG-ORDER
Abdul Hadi, J.@mdash8th defendant in O.S. No. 474 of 1979 on the file of Sub Court, Tiruvannamalai is the appellant, in this first appeal against
the preliminary decree for partition, in respect of the suit properties claimed to be that of one Pavunambal, the mother of plaintiff and defendants 2
to 6 and wile of the 1st defendant, granted by the said Court in favour of the 1st respondent-plaintiff.
2. The suit properties are described in A to E Schedules to the plaint. As prayed for by the plaintiff the Court below has granted the abovesaid
decree for the 1/7th share in plaint A. B and E schedule properties, 1/4th share in plaint C schedule properties and 1 / 14th share in plaint B
schedule properties.
3. The undisputed facts are: Velayutham Chattiar, the 7th defendant had two daughters, the 8th defendant and one Pavunambal, who died on 16-
7-1979, leaving her husband, the 1st defendant, her five daughters, the plaintiff and defendants 2 to 5 and one son, the 6th defendant. Defendants
1 to 6, who are respondents 2 to 7 herein remained ex parte in the suit as well as the appeal. The 7th defendant also died in 1981, pending suit and
8th defendant was recorded as the legal representative of the 7th defendant.
4. In this appeal, there is no specific argument regarding D schedule property, which was purchased under Ex. A.5 sale deed dated 30-1-1970 in
favour of the abovesaid Pavunambal and 8th defendant, though the plea in the lower Court was that this purchase was benami in their names by the
7th defendant. Learned counsel for the appellant submitted that no lis regarding D schedule property survives in view of the death of the 7th
defendant pending suit leaving 8th defendant on the one hand and Pavunambal''s heirs on the other hand, to divide the said property equally.
Likewise, with reference to E sche- dule properties which are debts due to Pavunambal, there is no argument by learned counsel for the appellant.
5. Learned counsel for the appellant initially made only three submissions, which are as follows:--
(i) The first submission relates to Ex. A.3 settlement deed dated 27-2-1973 relating to B schedule properties executed by the 7th defendant in
favour of Pavunambai and Ex. A. 4 settlement deed dated 21-2-1973, in respect of C schedule properties, executed by the 7th defendant in
favour of Pavunambal for her life and then in favour of the plaintiff and defendants 2, 3 and 4 absolutely. (Contrary to the contentions of the
appellant, the Court below_has held that these settlement deeds are valid).
(ii) The other argument is Ex. A. 1 sale deed dated 15-6-I96I in favour of Pavunambal for Rs. 1500/- in respect of one of the items of A schedule
properties and Ex. A. 2-sale deed dated 20-7-1964 in favour of Pavunambal for Rs. 4,000/- in relation to another item of A schedule properties,
are benami and the real owner is 7th defendant. (The Court below has negatived this defence in the suit and held that Pavunambal was not
benamidar therein, but only the real owner.
(iii) The third argument is, a partition suit as the present one is not maintainable in respect of the abovesaid A schedule properties since the very title
to the suit properties is denied by the 7th defendant, a third party in so far as partition action is concerned, the suit having been laid, paying only
fixed Court fee prescribed for partition suit. In this regard, the said learned counsel also submits that the plaintiff has been set up only by the 1st
defendant and the fight is only between the plaintiff and the 7th defendant. That is why defendants 1 to 6 remained ex parte. (On this point also, the
Court below negatived the abovesaid contention and held that the suit is maintainable.)
6. Though only the abovesaid three arguments were made initially by learned counsel for the appellant, he, after the argument of learned counsel for
the 1st respondent-Plaintiff, in reply, also sought to make one more argument against the finding of the Court below that Ex. B. 28 will dated 14-7-
1979 said to have been executed by Pavunambal in favour of her father, the 7th defendant is fabricated, and contended that the said will was true
and valid. Though, strictly such argument, in reply, is not permissible, we permitted the said learned counsel to make the said submission also.
7. In the light of the abovesaid arguments of learned counsel for the appellant and the counter arguments thereto by learned counsel for the 1st
respondent, we shall now set out only the relevant pleadings. The relevant pleadings in the plaint are as follows:--Pavunambal accepted the
settlement (Ex. A. 3) of B schedule properties and had been enjoying the same by letting it to third parties through her husband and father. The
original of Ex. A. 3 is filed along with the plaint. As per the terms of the other settlement (Ex. A. 4) Pavunambal has to enjoy C schedule properties
as guardian of her daughter, plaintiff and defendants 2 to 4 and she should not alienate the property without dire necessity for their benefit and after
her death the plaintiff and defendants 2 to 4 should get it absolutely. The said settlement was accepted by Pavunambal and she had been in
enjoyment of the abovesaid properties by letting it to third parties on behalf of the minor daughters through her husband and father. The original of
the said settlement deed is filed along with the plaint. As a result of misunderstanding between herself and the 1st defendant, the 7th defendant took
a hostile attitude towards the plaintiff and defendants 1 to 6 and in order to deprive them of the legitimate share in the suit properties, has created a
will (Ex. B 28) as if it was executed by Pavunambal in favour of 7th defendant and he is attempting to get it registered. It is a rank forgery created
by the 7th defendant. Since the 7th defendant is attempting to create cloud over the plaintiff''s legitimate share in the suit properties by presenting a
forged will, he is also impleaded as a party in the suit for effective adjudication and to avoid multiplicity of litigation.
8. The relevant allegations in the written statement of the 7th defendant are as follows :-- The suit, as framed, is not maintainable in law since
defendants 7 and 8 are disputing the title of the plaintiff and defendants 1 to 6. There is really no dispute between the plaintiff, and defendants 1 to
6 and they are colluding together. Under the guise of filing the suit for partition, in truth, the plaintiff is asking for declaration of the title of herself
and defendants 1 to 6 to the suit properties. The 7th defendant alone is in possession of the entire suit properties. The 7th defendant has got vast
resources. Pavunambal or the 8th defendant never had any resources to purchase any property. A schedule properties under the respective sale
deeds were purchased only by 7th defendant with his own money. Ever since the purchase he alone is in enjoyment by paying kist and by
cultivating the said land. The said sale deeds were got in the name of Pavunambal benami. It was so purchased, as 7th defendant has vast
agricultural lands. He did not desire to acquire more properties in his own name. The originals of the sale deeds have always been with the 7th
defendant. The 7th defendant had no intention at any time to settle B schedule properties to Pavunambal, nor did she accept the alleged settlement.
The 7th defendant also did not deliver possession of B schedule properties, nor did he ever deliver the settlement deed to Pavunambal. Due
execution and attestation of settlement deed dated 27-2-1973 (Ex. A. 3) is specifically denied. 7th defendant prepared the settlement deed and
none of the attestors to the said document was ever present when the defendant signed the said deed, nor did they ever saw or get any
acknowledgment from the 7th defendant about his signing the settlement deed, nor they put their signatures with any intention to attest the
document. Though the deed was brought into being by the 7th defendant, he never had any intention to deliver the properties thereunder to
Pavunambal. The said deed was prepared by him only to avoid large extent of agricultural lands, standing in his name. The plaintiff and the 1st
defendant have taken the said deed from the house of the 7th defendant after the death of Pavunambal without the knowledge of the 7th defendant.
The said B schedule properties have always continued to be the properties of the 7th defendant and he alone has been in possession throughout in
this own right. With reference to C schedule properties also, the 7th defendant, though brought into being the deed dated 21-2-1973 (Ex. A. 4) he
never had any intention to make Pavunambal or the plaintiff or defendants 2 to 4 as owners thereof. The 7th defendant denies specifically due
execution and attestation of the said document. None of the persons mentioned as attestors in the document ever saw 7th defendant putting the
signature in the said document, nor they got any acknowledgement from the 7th defendant putting his signature. They did not sign with any intention
to attest. The 7th defendant never delivered the deed dated 21-2-1973 to Pavunambal or to the plaintiff or defendants 2 to 4. Pavunambal or the
plaintiff or defendants 2 to 4 never accepted the deed dated 21-2-1973 as the 7th defendant did not want large area of lands in his name, he
nominally brought into being the deed dated 21-2-1973, benami in the name of Pavunambal for his own benefit and he was in possession and
enjoyment of the said property in his own right. Pavunambal, while in a sound disposing state of mind, has executed the will dated 14-2-1979 (Ex.
B. 28). It is duly attested by the attestors. As the properties were acquired by 7th defendant in the name of Pavunambal, she wanted the 7th
defendant to get the ostensible title also in his name and so, of her own accord she executed the said will. It was not registered during her lifetime,
and she died on 16-7-1979. Hence the 7th defendant had it registered after her death, to the knowledge of the plaintiff and defendants ! to 6. They
opposed the registration, but their contentions were negatived. The plaintiff or defendants 1 to 6 did not succeed to the suit properties on the death
of Pavunambal as the abovesaid will came into effect in any event. The 7th defendant has given a police complaint immediately after coming to
know of the documents taken by the 1st defendant. Misunderstanding between the 1st defendant and the 7th defendant is only on that account.
The abovesaid will is not a forged one.
9. The relevant allegations in the written statement of the 8th defendant are as follows :-- The suit is not maintainable. The suit properties belong to
the 7th defendant, who alone is in possession and enjoyment thereof. 8th defendant is not the owner of D schedule properties. 8th defendant and
Pavunambal are only name lenders for the sale deed dated 30-1-1970 and the real owner is the 7th defendant.
10. The 8th defendant also filed additional written statement after she was recorded as legal representative of the 7th defendant, adopting the
written statement of the 7th defendant and contending that on the death of the 7th defendant, 8th defendant is entitled to half of suit A to D
schedule properties and that the abovesaid will is true and valid.
11. The Court below framed relevant issues and inter alia, gave the above referred to findings referred to in paragraphs Nos. 2 and 5 supra.
12. We have already set out in a nutshell the argument of learned Counsel for the appellant and in substantiating the same, he also took us through
the relevant pleading and evidence and also relied on several decisions. On the other hand, learned counsel for the 1st defendant reiterated the
conclusions reached by the trial Court based on the relevant pleadings and evidence referred to by him. He also relied on several decisions in
support of his contentions.
13. We shall now consider their rival submissions in the light of pleadings, evidence and decisions cited. We shall first take up the submission
relating to Exs. A. 3 and A. 4 settlement deeds. Here, one argument is, Exs. A. 3 and A. 4 were not duly attested and the other argument is, there
is no proof that the donees under the said settlement deeds accepted the settlements. For these reasons, according to learned counsel for the
appellant, there was no valid and effective settlement in favour of the respective donees. He also points out that there was no delivery of
possession to the donees pursuant to these documents and that the 7th defendant, the alleged donor under those two documents, alone continued
to be in possession and enjoyment of the properties covered under Exs. A. 3 and A. 4 throughout. He also points out that the 7th defendant even
executed Ex. A. 9 registered deed dated 25-9-1979 and Ex. A. 11 registered deed dated 21-9-1979, cancelling the abovesaid alleged settlement
deeds. (There cancellations have been resorted to after the death of the donee Pavunambal on 16-7-1979). He also points out that of the alleged
attestors mentioned in Exs. A. 3 and A. 4, only PW 5 Ellappan has been examined, who figures as attestor only in Ex. A. 3 and that P.W. 4 is only
the scribe of Ex. A. 4, but not attestor to any of the two documents and since he was not having the animus to attest, he could not be taken as
attestor to either of the documents. In other words, in so far as Ex. A. 4 is concerned, no attestor has been examined according to him. Further, he
also points out that even P.W. 5, in cross-examination admitted that he could not identify the alleged signature of the other attestor to Ex. A3.
(Rajamanickam). So also, he submits that there is no proof of due attestation of either Ex. A. 3 or Ex. A. 4. For all these reasons, according to
him, Section 68 of the Evidence Act, is not complied with. He also submits that the proviso to Section 68 of the Evidence Act would not apply in
the present case since ""execution"" (spoken to in the said proviso) of the documents in question herein, is ""specifically denied"". He also contends
that the expression ""execution"" used in the said proviso would include due attestation also and that further even though the 7th defendant had not
disputed his signature found in Ex. A. 3 and Ex. A. 4, that by itself would not be an admission of the execution of those documents by him.
Consequently according to said learned counsel, Section 123 of the Transfer of Property Act, is also not complied with. He also drew our
attention to the decisions in Ramaswami Padayachi v. Ramswami Padayachi 87 Mad LW 799, AIR 1925 737 (Oudh) , Pattammal v. Kanniammal
94 Mad LW 232, Timmavva Dundrappa v. Channava Appaya AIR1948 Bom322 and Khwaja Mazhar Uddin Vs. Rama Shankar Amist and
Others, .
14. On the other hand, regarding the abovesaid attestation question, learned Counsel for the 1st respondent made the following submissions:--
In the light of the pleadings and evidences, the contention that there was no due attestation by the two attestor to each of the documents, has no
merit particularly when on that point there was no cross-examination of P.W. 5 and P.W. 4. He also points out that the handwriting in both Exs. A.
3 and A. 4. are same and it is that of PW 4, though only Ex. A. 4. stated that he is the scribe of Ex. A. 4. He also points out that not only he was
the scribe to both the documents, but he has also signed these decuments with the animus of attestation. He also drew our attention to the following
decisions, holding that a scribe also could be attesting witness, viz., Pichai Pillai Konar Vs. Krishnaswami Konar and Others, , Dhruba Sahu
(dead) and after him Nalumoni Sahu and Another Vs. Paramananda Sahu, and Alagappa Chettiar v. Kokala Pai AIR 1940 Rangoon 134. He also
points out that not only Exs. A. 9 and A. 11, but Ex. A. 12, dated 26-9-1979. (Petition to Municipality by the 7th defendant) also speaks of
execution of Exs. A. 3 and A, 4. He also points out that the decision in Gur Chafan v. Ram Bharose Singh (AIR 1943 Oudh 218 (DB)) has held
differently from AIR 1948 Bom 322 (supra).
15. We shall now first consider the question of attestation. It is well known that Section 123 of the Transfer of Property Act, which provides for
the mode of making a gift of immovable property, inter alia, provides that the registered gift document by the donor must be attested by two
witnesses. Section 68 of the Evidence Act, which provides for proof of execution of document, required by law to be attested, says that if a
document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of
proving its execution. However, the proviso therein says that it shall not be necessary to call an attesting witness in proof of execution of any
decument, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act ""unless its execution by the
person by whom it purports to have been executed, is specifically denied."" There is also one other section in the Evidence Act, viz., S. 70, which
says that the admission of a party to an attested document, of its execution by himself shall be sufficient proof of its execution as against him, though
it be a document required by law to be attested. With reference to this S. 70, it has been however held that the admission contemplated in S. 70 is
an admission of execution in the manner in which a document required by law to be attested, is to be executed. In other words, the word
execution"" in S. 70 designates the whole operation, including signing by the executant and attestation by the witnesses. (Vide E.Su. Na. Sheikh
Davood Rowther and Others Vs. N.R.M.N. Ramanathan Chettiar and Others, . In the present case, no doubt, the 7th defendant can be said to
have admitted his signing of Exs.A.3 and A.4 as executant of the respective documents. In Ex.A.9 dated 25-9-1979, which seeks to cancel
Ex.A.4 and in Ex.A.11 dated 21-9-1979, which seeks to cancel Ex.A.3 7th defendant has referred to the execution of Exs.A.3 and A.4
respectively. Ex.A.12 dated 26-9-1979 is the communication sent by 7th defendant to the concerned Municipality, informing about the abovesaid
cancellation of the settlements executed earlier in 1973. But, in the light of AIR 1938 Mad 43 (supra) it cannot be said that merely because of the
abovesaid Exs.A.9, A.11 and A.12, the 7th defendant had also admitted execution of Exs.A.3 and A.4 in the manner in which those documents
are to be executed in accordance with law. In other words those documents would not prove admission by 7th defendant, of the attestation of
those settlements. So, independently the plaintiff has to prove due attestation.
16. Now let us see the evidence regarding attestation. No doubt Ex.A.3 shows that one Ellappan (PW5) and one Rajamanickam have attested it.
Ex.A.4 shows that two other witnesses have attested the said document. It also shows that PW 4 (Munisami Pillai) has written and attested the
said document. Though in Ex.A.3 there is no such recital saying that anybody has written the said document, it is clear from looking at the body of
both Exs.A.3 and A.4, that the scribe of both the documents is one and the same. There is also evidence to that effect. But, the question is whether
the said PW 4 can also be taken as an attestor to Ex.A.4, particularly because none of the two persons described as (vernacular word is omitted),
has been examined.
17. In the above background, before seeing the legal position, let us see the relevant oral evidence recorded. PW 1 is the plaintiff, aged 22 at the
time when the evidence was given (26-11-1982). Regarding the abovesaid attestation in 1973, her evidence may not be quite relevant. Then the
evidence of PW 2 also is not relevant since he was examined only in relation to the aforesaid will. Then PW 3 was also examined only to prove the
abovesaid Ex.A.12. So regarding the above-said attestation question, we have only to see mainly the evidence of PWs 4 and 5. PW 4, a
document writer, says in chief examination, with reference to Ex.A.3, that he and the other witnesses (vernacular words omitted) saw the 7th
defendant signing Ex.A.3 and that day saw himself (PW 4) and other witnesses signing the said document. Likewise, he deposes with reference to
Ex.A.4 also. Learned counsel for the appellant submits that because the expression used by him in the abovesaid deposition is (vernacular words
omitted) the term (vernacular word omitted) referring to PW4, cannot be taken as a person, who attested the document with the requisite animus.
But we, are unable to accept this contention. Simply because of the said phraseology used by PW 4, viz., (vernacular words omitted) it cannot be
said that PW 4 has not attested the signature of the 7th defendant in the abovesaid settlement deeds. Specifically he has deposed that he has also
seen 7th defendant signing the said settlement deeds and on that particular aspect, it must be noted that there is absolutely no cross-examination.
The deposition recorded in cross-examination is as follows:--
(Vernacular matter omitted)
Therefore, we hold that PW 4 was not only the scribe of the two documents, but he has also seen execution and signing of the said documents
and, therefore, he could also be treates as an attestor to the said documents with the required animus. There could be no difference of opinion as
to the legal proposition that the scribe of a document could also be an attesting witness thereof, if he has signed the document with the required
animus to attest (vide Pichai Pillai Konar Vs. Krishnaswami Konar and Others, and the above referred to other decisions cited by learned counsel
for the 1st respondent). In fact in Pichai Pillai Konar Vs. Krishnaswami Konar and Others, , it has also been observed that the fact that a person
calls himself a scribe in a certain document does not debar him from being an attesting witness, if he has in fact witnessed the execution. In the
present case, PW 4 has deposed that he has seen 7th defendant signing Exs.A.3 and A.4. Further, Ex.A.4 also shows that PW 4 has written and
attested the said document. In Dhruba Sahu (dead) and after him Nalumoni Sahu and Another Vs. Paramananda Sahu, also, it has been held that
when a person puts his signature on the document, both as scribe and as attesting witness, the inference is that he functioned both as scribe and as
attesting witness. In AIR 1940 Rangoon 134 (supra) also, it has been held that when a man places his signature upon a document and at the same
time describes himself as writer thereof, the inference is that he signs as the writer and nothing else, but as a matter of fact it can be shown that he
signed not only as the writer, but also as witness of the fact that he saw the document executed. In the present case, in so far as Ex.A.4 is
concerned, there is a statement at the end of the document that PW 4 wrote as well as attested the document. Though in Ex.A.3 such a statement
is not there, PW 4 has deposed that he has seen the executant signing the document and on that aspect, there is no cross-examination as
mentioned above.
18. Further, coming to the evidence of PW 5, who is one of the attestors to Ex.A.3 deed, we find that in chief-examination he deposed that he saw
the 7th defendant signing Ex.A.3 and Ex.A.3 was also written by PW 4, He also deposed in chief-examination that Rajamanickam was the other
attesting witness to Ex.A.3. No doubt, in cross-examination he also deposed thus :--
(Vernacular matter omitted)
From this, learned counsel for the appellant sought to contend that he could not identify the other attestors'' signature and that, there- fore,
attestation by two witnesses, of Ex.A.3 was not proved. But, we are unable to agree with the said interpretation put by him on the abovesaid
deposition given by PW 5 in cross-examination. What is actually meant by his deposition in cross-examination is only that he could not actually
decipher the attestation by the other witness, Rajamanickam, figuring in Ex.A.3 by looking into the signatures therein. He gives evidence only on
13-6-1984 about 11 years after Ex.A.3 was executed. Further, the said Rajamanickam has signed in English and though it is elicited from PW 5
that he knows to read, it was not elicited specifically from him that he knows to read English. Further, as against the deposition in the chief-
examination that Rajamanickam also attested the document, there is no specific direct suggestion that Rajamanickam did not attest the said
document.
19. In the view we have thus taken, the decision cited by learned counsel for the appellant, viz., (1974) 87 Mad LW 799 (supra) and AIR 1925
737 (Oudh) and (1981) 94 Mad LW 287 (supra) have no application. Further, in the abovesaid view we have taken there is no necessity to see
whether the proviso to S. 68 of the Evidence Act would apply and therefore, there is no necessity to refer to AIR 1948 Bom 322 (supra) cited by
learned counsel for the appellant or the contra judgment cited by learned counsel for the 1st respondent, viz., AIR 1943 Oudh 218 (DB) (supra)
or the other decision cited by learned counsel for the appellant, viz Bindeshri Prasad and Others Vs. Panchayati Akhara Maha Nirbani Goshain, .
Therefore, the conclusion is that both Exs.A.3 and A.4 have been duly attested, as required by law.
20. Then, let us deal with the next limb of the first argument of learned counsel for the appellant, viz., that there was no acceptance of the gift by the
donee Pavunambal under Ex.A.3 and Ex.A.4, we are unable to find any merit in this submission also. No doubt, S. 122 of the Transfer of
Property Act, which defined the term ""gifts"" says, that the transfer should be accepted by the donee. But, it must be noted that the abovesaid
Exs.A.9, A.11 and A. 12 do not at all say that the abovesaid Exs.A.3 and A.4 settlements were not accepted by the donee Pavunambal. Exs.A.9
and A.11 mainly say that despite the execution of those deeds, the possession and enjoyment continued to be only with the donor, the 7th
defendant. They also say that since Pavunambal died on 16-7-1979, the 7th defendant wants to deal with the relevant properties as he pleases. In
Ex.A.12 also, all that is stated is that since Pavunambal died, the settlements were cancelled. In all, these documents, the 7th defendant has not
whispered anything about Pavunambal not accepting either of the gifts. Further, the 8th defendant, deposing as DW 1 also did not assert that there
was no acceptance by the donee. PW 1 also deposed with reference to Ex.A.3 thus:--
(Vernacular matter omitted)
As against this evidence by PW 1 relating to acceptance of gift in relation to Ex.A.3, there is no suggestion even in cross-examination stating
expressly that there was no such acceptance. Further, in so far as Ex.A.3 is concerned, we also find the signature of Pavunambal on the back of
the first page of the original settlement deed. The said signature above has been marked as Ex.A.13. Though it is not quite clear on what contact
she put her signature there, it would at any rate show that she was a consenting party to Ex.A.3 settlement. In other words, if really Pavunambal
had not accepted the settlement, she would not have put her signature in Ex.A.3. It is also significant to note that Ex. A.13. was marked only at the
instance of the appellant while cross-examining PW4 in Balwant Singh Vs. Chatin Sing and Others, it has been also held that where after the
execution of the gift deed, thumb impression of the mother of minor donee was obtained thereon in token of acceptance of gift, the gift could be
said to be accepted by the mother of the donee. Likewise, in Balwant Singh Vs. Mehar Singh, also it has been held that where a gift deed was
signed by the donee, both at the time of execution and when it was presented to the Sub-Registrar for registration, the donee''s signature on the
two occasions must be held to have been appended in token of acceptance of the gift.
21. Further, paragraphs 3 and 4 of the plaint specifically says that Pavunambal accepted the settlement. Further, the plaint also says that the
original settlement deeds are also filed along with the plaint. As against this particular allegation regarding the original settlement deeds being filed
by the plaintiff, the written statement only states that the original settlement deeds were always with the 7th defendant and they were never in the
custody of Pavunambal or plaintiff or defendants 1 to 6. In other words, there was no allegation a all in the written statement that the original
settlement deeds were stolen by the plaintiff''s father (1st defendant) from the 7th defendant. The suggestion comes in only when PW 1 is
examined. Further, DW 1, the 8th defendant does not at all depose so. We cannot accept the story of plaintiff''s father or the plaintiff stealing away
the original settlement deed from the 7th defendant. Once that story is not acceptable there could be the necessary inference that the original
settlement deeds were given over to the donee Pavunambal at the time of the gifts. In Mst. Samrathi Devi Vs. Parasuram Pandey and Others, also
it has been held, relying on AIR 1927 42 (Privy Council) and Atmaram Sakharam v. Vaman Janardhan AIR1925 Bom 210 FB, that the fact of the
gift deed being handed over by the donor to the donee, was sufficient evidence of his having accepted the gift. Learned counsel for the appellant
was vehemently contending that despite the settlement deed, the 7th defendant alone continued to possess and enjoy the property and that there
was also no mutation of names in the Municipal register pursuant to the settlements. According to him, from this, it can be inferred that there was
no acceptance of the gift by the donee. But, we are unable to accept this contention. Even assuming that the 7th defendant continued to possess
and enjoy the property alter the above referred to settlements, that by itself would not necessarily lead to the inference that there was no
acceptance by the donee of the gifts. Even after accepting the gifts, the donee Pavun-ambal could have allowed her father, the 7th defendant to
enjoy the income from the properties settled in view of the relationship of father and daughter between the donor and donee. Further, Exs.A.3 and
A.4 specifically recite that possession has been handed over to the donee. When such recital is there, a presumption arises that possession has
been handed over to the donee. (Vide Fatima Bibi v. Khairum Bibi AIR 1923 Mad 52. No doubt, it may be rebuttable presumption. But, in the
present case, delivery of possession of the gifted property is not absolute requirement, for the completeness or the validity of the gift as found in
Muslim Law of Gifts. All that we have to find in the present case is whether there was acceptance of the gift by the donee. Even assuming that the
donor continued to be in possession and enjoyment of the property gifted, from that alone, it cannot be necessarily inferred that acceptance by the
donee of the gift was not there. No doubt in Chennupati Venkatasubbamma Vs. Nelluri Narayanaswami, it was held that the facts relied on to
draw an inference of acceptance must be by acts of positive conduct on the part of the donee, and not merely passive acquiescing such as standing
by when the deed was executed or registered. But, the facts in the present case are different as mentioned above and there are enough features as
mentioned above to at least hold that there was implied acceptance of the gifts in question. Even (1954) 1 Mad LJ 194 (supra) has held that law
requires acceptance, which may even be implied. Therefore, we concur with the Court below in holding that Exs.A.3 and A.4 settlements are
valid.
22. Let us now deal with the second submission of learned counsel for the appellant that the 7th defendant purchased properties under Exs. A. 1
and A.2 sale deeds out of his own funds in the name of Pavunambal, benami and that he alone was the real owner thereof, pursuant to the said
deeds. But, though learned counsel for the appellant began this argument, he subsequently conceded that the Benami Transactions (Prohibition)
Act (45 of 1988), hereinafter referred to as ''the Act'' would apply to Ex.A.2 settlement of 1964 since Pavunambal, the donee therein was a
married daughter by then, she having married admittedly in 1962. However, he contends that with reference to Ex.A.1 settlement deed of 1961,
the Act will not apply in view of S. 3(2) of the Act and because there is no proof that in 1961 Pavunambal was a married daughter. This contention
has no merit. Section 3 of the Act runs as follows:--
3. Prohibition of banami transaction.-
1. No person shall enter into any benami transaction.
2. Nothing in sub-sec. (1) shall apply to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be
presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter.
3. Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or
with both.
4. Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence under this section shall be non-cognizable and
bailable"".
The Supreme Court has held in Mithlesh Kumari v. Prem Behari Khare, (1989) 1 Mad LW 430 (SC), that S. 3 has only prospective in operation.
Further, Nafeese Nachiar (died) v. Umma Habeeba Nachiar 1994 1 Mad LW 429 DB has also held thus :--
In the light of the aforesaid provisions, the only way in which sub-sec. (2) of S. 3 can be construed is that it enables a person to purchase property
in the name of his wife or unmarried daughter without being liable to be prosecuted and in such cases, the property will not be liable for acquisition.
It is only to protect a person who purchases property in the name of his wife and unmarried daughter for their benefit as against prosecution and
compulsory acquisition of property, S. 3(2) has been introduced. Whenever a property is purchased by a person in the name of his wife or
unmarried daughter, the Act provides for a mandatory presumption that the said transaction is for the benefit of wife or the unmarried daughter, as
the case may be. In such cases, the burden is on the person who claims it to be a benami transaction for the benefit of the purchaser and not for the
benefit of his wife or unmarried daughter to prove the contrary and rebut the presumption. The section does not mean that whenever a property is
purchased in the name of a wife, it is open to the purchaser himself or persons claiming under him to put forward a case of benami.
23. I have also held in Solai Ammal Devanathan v. Parvathi Ammal (1994) 2 Mad LW 626, that S. 4(1) of the Act cannot be read with S. 3(2),
though earlier in Minor K. M. B. Syed Fathima v. K. M. Bathusa Mohideen 1990 2 Mad LW 389, I myself held differently, which is not correct.
Therefore, in view of what is contained in S. 4 of the Act, the appellant is not entitled to set up the abovesaid defence of benami at all. No doubt,
the Court below, when it decided the suit, before the introduction of the Act, also held that benami plea set up by the appellant was not proved on
facts, after giving several reasons for coming to the said conclusion. There is no necessity for us to go into that factual question, in view of the
abovesaid legal position after the introduction of the Act. The net result is, we agree with the Court below in rejecting the abovesaid plea of benami
set up by the defendants in relation to Exs.A.1 and A.2.
24. Then let us deal with the third submission of learned counsel for the appellant, contending that the suit for partition is not maintainable, as stated
above. The said contention has no merit in view of the decision rendered by this Court in Ramaswami v. Rangachariar AIR 1940 Mad 113 FB,
where it has been held that in respect of alienations by father, to which the minor was not nominee a party and which are challenged by him in the
suit for partition against the father, the plaint need not contain a prayer for declaration or cancellation, as the prayer is for a purely incidental but
unnecessary relief and that when there is no such prayer, there is no justification for implying them and then demanding Court-fee for them.
25. Then, coming to the submission made by learned counsel for the appellant, only when he began replying to the argument of learned counsel for
the 1st respondent, we must point out that there is absolutely no merit in this contention relating to the validity and truth of the abovesaid will
Ex.B.28, said to have been executed by Pavunambal in favour of the 7th defendant. As already mentioned, the Trial Court has held that the alleged
will is fabricated one. The Trial Court has given various reasons for coming to the abovesaid conclusion, which are dealt within paragraphs41 to 66
of its judgment. Apart from holding that the signature found in Ex.B.28 differs from admitted signatures of Pavunambal the Court below catalogues
very many suspicious circumstances for coming to the conclusion that the will was a fabricated one. We may also point out that even in the
abovesaid Ex.A.12, dated 26-7-1979, the letter written by the 7th defendant, to the Municipality, there is absolutely no reference to the Will.
Further there is also no reason for Pavunambal, who was having at that time six minor children, to bequeath all her properties in favour of her
father, the 7th defendant. In the light of all these features, particularly, what is pointed out by the trial Court, there is absolutely no reason for
accepting the faint argument of learned counsel for the appellant in this regard.
26. Therefore, there is absolutely no merit in this appeal and hence it is dismissed with costs.
27. Appeal dismissed.
