LexM. RANGASAMY versus RENGAMMAL AND ORS.
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A B M. RANGASAMY v. .RENGAMMAL AND ORS. AUGUST 25, 2003 [Y.K. SABHARWAL AND G.P. MATHUR, JJ.] Succession Act, 1925--Section 63(c)-Transfer of Property Act, 1882- Section 3-Evidence Act, 1872-Section 68-Gift-lnfavour of grand son by C grandmother-By Settlement Deeds-Challenged alleging it to have been executed under undue influence-Burden to prove undue influence pleaded to be on the executant being in fiduciary relationship-Suit decreed-First Appellate Court held that the deeds did not suffer from the vices-High Court held the deeds not proved discarding evidence of attesting witnesses to the deeds for want of evidence in terms of Section 63(c)-On appeal held: Non D compliance of Section 63(c) does not effect the execution of the deeds as the same are in the nature of gift deeds and it is not a case of proof of will- Testimony of attesting witnesses were discarded on wrong ground Undue influence-For execution of deed-Presumption of-When arises-Merely because parties were nearly related and because donor was E old or of weak character, no presumption of undue influence can arise- Generally the relations of solicitor and client, trustee and cestul que trust, spiritual adviser and devotee, medical attendant and patient, parent and child are those in which such a presumption arises-Evidence Act, 1872- F Section 114. • Code of Civil Procedure, 1908-Section 100-Second appeal- Reappreciation of evidence under permissibility of-Held:- not permissible. The suit property exclusively belonged to 'N'.After her death appellant- defendant, her grandson asserted exclusive right to the suit property. G Respondent-plaintiffs, the daughters of 'N' sent a notice to the appellant requiring to restrain him from unlawful interference in the enjoyment of the properties. According to them, their mother had duly executed a registered Will whereunder she bequeathed in their favour properties in Schedule A. Schedule B properties in respect of which she died intestate,were inherited by them to the extent of 3/4th share together and I/4th undivided share by II 948 M. RANGASAMY v. RENGAMMAL 949 defendant No.I. In reply to the notice, appellant denied their title and asserted A his exclusive title over Schedule A and B properties under two settlement deeds (Exhibits B-6 and B-7) executed in his favour by 'N'. Respondents filed suit for declaration that Schedule' A' properties belonged exclusively to them and further sought partition of Schedule B properties into four equal shares. Their case was that first defendant exercising dominating influence over his grandmother, got the settlement deeds executed exploiting her old age, dim B eye-sight and mental condition; and that since he had a fiduciary relationship with his grandmother, the burden to establish absence of undue influence in executing the settlement deed was on him. Trial Court decreed the suit holding that Exhibits B-6 and B-7 which C were in the nature of gift deeds were not valid documents and the same were brought into existence by fraud, mis-representation and undue influence. In appeal, first appellate court set aside the decree of trial court holding that the Exhibits were not vitiated by any invalid circumstance as alleged in the plaint, as 'N' was physically healthy and sound disposing mind when she executed the exhibits and that she voluntarily executed the said documents D with full knowledge of the nature and purport of the document she was executing. High Court reappreciated the evidence and allowed the second appeal holding that the deeds have not been proved; that the expression 'attested' is not defined in Transfer of Property Act, 1882 and that Section 63(c) oflndian Succession Act, 1925 is applicable; and the testimony of two attesting E witnesses were liable to be rejected for want of evidence in terms of Section 63 of Succession Act. Hence the present aj)peal. Allowing the appeal, the Court HELD: 1. The findings have been correctly recorded by the first F Appellate Court. There is no ground on the basis whereof the High Court could reappreciate evidence and reverse the said findings while deciding a second appeal. Reappreciating evidence is not permissible while exercising jurisdiction under Section 100 CPC. (955-C; 953-A-q 2. Section 63(c) of the Succession Act on the basis whereof the High G Court has discarded the testimony of attesting witnesses of Exhibits B-6 and B-7 on the ground that the ingredi
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