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2001 DIGILAW 1404 (MAD)

Chakrapani and others v. A. Vishnu and another

2001-11-26

M.CHOCKALINGAM

body2001
JUDGMENT: This second appeal has arisen from the judgment and decree of the learned Additional District Judge, Vellore, North Arcot District made in A.S.No.112 of 1989, dated 7.12.1989 preferred from the judgment and decree of the learned District Munsif, Vellore made in O.S.No.1084 of 1980, dated 26.4.1989. 2. The first respondent in this appeal filed a suit for partition of plaint A and B Schedule properties into 8 equal shares and to allot 5 shares to him along with separate possession with the following averments. One Gopal Mandiri had two sons and two daughters, namely, Adi Narayana Mandiri, Singara Mandiri, Kulandi Ammal and Sarada Ammal. Gopal Mandiri’s wife was one Thanjammal. Gopal Mandiri died about 45 years ago, i.e., even prior to 1935 and his wife Thanjammal died in the year 1968. The entire A schedule property originally belonged to Gopal Mandiri, the same being his ancestral properties. As Gopal Mandiri died about 45 years ago, his two sons alone became the owners of the entire A Schedule property by Survivorship. Adi Narayanan, the first defendant had three sons, namely, the plaintiff herein and the defendants 2 and 3 herein. Singara Mandiri also died about 35 years ago leaving behind him his son, Damodaran, the 4th defendant herein with his widow Unnamalai Ammal, his daughter one Rosammal. As Singaram died 35 years ago, Damodaran became the owner of the entire 1/2 share that came through Singara Mandiri by law of survivorship. The other half belonged to the plaintiff and the defendants 1 to 3. There was no partition at any point of time between the branch of Adi Narayanan Mandiri and Singara Mandiri. The plaintiff and the defendants all of them constituted an undivided Hindu joint family. Hence, on account of the above said facts Unnamalai Ammal, the widow of Singaram did not inherit any share in the property and she also died in the year 1976. Rosammal also did not inherit any share in the property and she also died in the year 1965. Hence, the entire A Schedule property belonged only to the plaintiff and defendants 1 to 3 and they were entitled to 1/8th share each in it. Subsequently, after the death of Singaram, the B schedule house property was acquired by the joint family and it was also a joint family property. The other 4/8th shares belonged to Damodaran, the 4th defendant. Subsequently, after the death of Singaram, the B schedule house property was acquired by the joint family and it was also a joint family property. The other 4/8th shares belonged to Damodaran, the 4th defendant. Damodaran was a blind person by birth and he remained unmarried. As he was blind, only the plaintiff was attending to him and taking care of him. On account of affinity between the plaintiff and the 4th defendant, the 4th defendant, Damodaran released his entire interest in the joint family properties in favour of the plaintiff by executing a registered release deed, dated 22.4.1980. On account of the said release deed by the 4th defendant in favour of the plaintiff, the plaintiff has now become entitled to 5/8th shares in the entire joint family properties, i.e., A and B Schedule properties. As already mentioned, the remaining 3/8th shares belonged to the defendants 1 to 3. As the 4th defendant has voluntarily released his rights in the suit property in favour of the plaintiff, the defendants 1 to 3 have now developed enmity towards the plaintiff and hence, the plaintiff was not being treated properly in the family. Hence, the plaintiff did not want to remain joint with the defendants 1 to 3 and hence he has demanded partition also during the month of May, 1980. Since the defendants 1 to 3 were evading partition and they were not agreeable for an amicable division of the suit properties, the plaintiff filed a suit for division of the suit A and B Schedule Properties into 8 equal shares and for allotment of 5 such shares to him and for delivery of possession of the properties, so allotted. 3. The first defendant contested the suit by filing a written statement alleging that the suit for division of the suit properties was unsustainable either in law or on facts; that the defendant admitted the relationship of parties as set out in the plaint; that the plaint A Schedule property was ancestral property, but the B Schedule property was not ancestral; that the A Schedule property was only dry lands and unproductive; that even in A Schedule property some items did not belong to the family. Hence a partition in respect of B Schedule property was unconceivable; that the contrary allegation that the B schedule property was also joint family property was only false and the plaintiff was put to the strict proof; that the plaintiff was entitled to 1/8th share in A schedule property and nothing more; that the plaintiff’s claim for 5/8th share was untenable; that the 4th defendant was not only congenitally blind, but also mentally infirm; that the first defendant was maintaining and caring him as his own son; that the 4th defendant never executed or intended to execute a release deed and particularly in favour of the plaintiff; that the alleged release deed must have been procured under vitiating circumstances; that the defendant did not admit the truth, validity or genuineness of the said release deed; that an undivided coparcener could not effect a release of his undivided share in the coparcenary in favour of a single coparcener and hence, the alleged release in favour of the plaintiff was void and invalid; that there were debts and the plaintiff should discharge the debts also; that further the marriage expenses in respect of the 3rd defendant have to be met out and provided for; that the legal heir of the 4th defendant should be named inasmuch as the fourth defendant died pending the suit; that the suit could not be maintained without naming the LR of the 4th defendant; that the plaintiff could not be a legal heir for the 4th defendant; that there was no cause of action for this suit and the suit was mere speculative and vexatious one and hence, the suit has got to be dismissed. 4. 4. The defendants 1 and 2 filed additional written statement alleging that the averments in the plaint pertaining to the date of death of Gopal Mandiri and others are incorrectly given; that the suit was bad for non joinder of necessary party Saradamma, the daughter of Gopal Mandiri, who was entitled to a share as the legal heir of Thanjammal, whose interest in the property has became an absolute right after the Hindu Succession Act; that the plaintiff’s prayer for accounting and for mesne profits as well as his prayer for seeking fresh partition was not sustainable in view of the plaintiff having already accepted the partition and being in possession and enjoyment absolutely of these items and paying kist also separately from 1978 onwards; that item 7 in the plaint schedule property was the separate property of Thanjammal; that the plaintiff has deliberately included item No.11 and 13 in the plaint Schedule property which was not property left behind by Gopal Mandiri; that these are the separate properties of Thanjammal, that the item ... 11 and 12 in the plaint schedule property were the separate properties of the first defendant acquired by him with his separate funds; that out of grace this first defendant has given these two items to the plaintiff; that in case the plaintiff insist for a fresh partition these two items were not liable to be included for partition as properties of Gopal Mandiri that item No.7 of A Schedule property belonged absolutely to Thanjammal; that she was in possession and enjoyment till her death; that on her death, her four children inherited it as absolute owners; that items 11 and 13 of the plaint A schedule properties were the separate property of the 5th defendant, who has purchased it under a registered sale deed, dated 27.6.1964; that she was in possession and enjoyment of the same as absolute owner; that the 4th defendant had no independent advice and he was a blind person, who was insane and was incapable of executing any deed voluntarily; that the 4th defendant never had any intention to deprive himself of his only means of sustenance by executing any release deed; that even if any such release deed has been executed, it was a void document under Hindu Law; that on the institution of the suit against the 4th defendant, who died subsequent to the filing of the suit, division in status took place; that the half share of 4th defendant Damodaran in all the erstwhile coparcenary properties devolved on the first defendant and 5th defendant as legal heirs of 4th defendant under Hindu Law; that if in case the release deed was held to be a void document the first defendant will become entitled to a 1/4th share in items 1 to 6, 8 to 10 and 12 and 14 and in B schedule properties in addition to his 1/4th share in the other half share in these items; that the plaintiff who was in possession of some of the items as admitted by him in the proceedings before R.D.O. Tirupattur, was not entitled to claim any mesne profits from these defendant and hence, the suit has to be disposed of. 5. 5. The second defendant filed an additional written statement (after the death of first defendant) alleging that the first defendant while in a sound disposing state of mind, out of love and affection, voluntarily executed a registered will dated 7.6.1987 bequeathing his right, title and interest in the suit properties in favour of this defendant and the third defendant; that under the terms of the Will, the second defendant and his brother, the third defendant have been directed to maintain their mother, the 6th defendant in the suit during her life time and not to alienate or encumber the property during her life time; that if in case the release deed dated 22.4.1980 was held to be a true and valid document, the 4th defendant’s half share in the above referred items would enure to the benefit of the Hindu Joint family of plaintiff and defendants 1 to 3 and not to the plaintiff alone; that the second defendant along with third defendant will be entitled to a decree for half share in items No.7 of plaint A schedule property; that in item Nos. 1 to 6, 8 to 10, 12 and 14 in A schedule property and in B schedule property the second defendant along with 3rd defendant will be entitled to a decree for either 3/4 share therein, in case the release deed dated 22.4.1980 was held to be a valid and true document on the alternative for a 5/8 share in these items in case the release deed was held to be a void document. Hence a decree has to be passed in favour of the 2nd defendant and 3rd defendant allotting them their half share in item No.7 and 3/4th share or 5/8th share in items 1 to 6, 8 to 10, 12 and 14 in plaint A schedule property and in B schedule property carving out their shares and directing delivery of separate possession of their shares. 6. 6. The 5th defendant filed a written statement stating that the plaintiff’s claim for 5/8th share in plaint A and B Schedule properties was vexatious and was not sustainable either in law or facts; that Gopal Mandiri died about the year 1942 and not in 1935 as alleged; that the daughter’s name given as Kulandi ammal was incorrect; that the entire A schedule properties did not belong to Gopal Mandiri; that two sons were not the owners of all of them as alleged; that the defendants 2 and 3 and plaintiff have no right or interest in the property; that it was true that Damodaran was entitled to a half share in the plaint items 1 to 6, 8 to 10 and 12 and 14 of A schedule properties and B schedule properties as coparcenary properties; that on 22.4.1980 Damodaran executed a release deed in favour of the plaintiff was false; that Damodaran had never any intention of releasing his interest in the entire joint family nor would he have deprived himself of his only means of sustenance by executing the release deed; that it was neither voluntary nor the conscious act of the deceased Damodaran; that the plaintiff should have brought it about taking advantage of the blindness of Damodaran and his inability and the fact that he was dependant on the plaintiff, who was admittedly in a position to influence him and in a position to dominate him; that the circumstances clearly demonstrate that the release deed even if it were to to have been executed by the deceased Damodaran could not have been his voluntary and conscious act and brought by fraud and undue influence; that admittedly, the release deed was in favour of a Hindu coparcener of coparcenary property when the family was joint; that the property covered by the release deed pertakes of the character of coparcenary and enures to the benefit of all the coparcener; that the release purported to be in favour of the coparcenary; that the plaintiff alone would not be entitled to claim a 5/8th share; that on the institution of this suit there was a division in status; that the 5th defendant has no objection for a preliminary decree for partition of the plaintiffs 1/8th share in plaint items 1 to 6, 8 to 10, 12 and 14 of A schedule and the B schedule properties and the rest of the claim of the plaintiff was false and untenable and the suit has to be dismissed with costs. 7. The 6th defendant filed a written statement alleging that the 6th defendant’s husband while in a sound disposing state of mind, for safeguarding the 6th defendant’s welfare and interest, out of love and affection, voluntarily executed a registered Will dated 7.6.1987 bequeathing his right, title and interest in all the plaint schedule mentioned properties in favour of the defendants 2 and 3 herein directing them to maintain the 6th defendant from out of the income from his share in the suit properties restricting these defendants 2 and 3’s right from encumbering or alienating the first defendant’s rights in the suit properties during the 6th defendant’s life time. Hence, the suit has to be disposed of. The seventh and eight defendants filed a written statement alleging that the 7th and 8th defendants were unnecessary parties to the suit in view of their father, the first defendant having executed a registered will settling his right, title and interest in the suit properties in favour of their brothers, Chakrapani and Lakshmanan and giving a maintenance right to their mother Thanjammal, the Widow of Adinarayana Mandiri. 8. 8. The plaintiff filed a reply statement stating that the registered will dated, 7.6.1987 set up by defendants 2 and 3 was not true: that Adinarayana Mandiri was laid up in bed for the last six years unable to know what is taking placed around him; that he was not able to get up and attend to his avocations; that his body and mind became week on account of old age and infirmity; that he was not in a position to come to Court and give evidence; that defendants 2 and 3 made use of this situation and brought about the will without Adinarayana Mandiri knowing that he was executing the Will, that Adinarayana Mandiri had no sound disposing state of mind and he did not execute the Will voluntarily in favour of the defendants 2 and 3; that even otherwise Adinarayana Mandiri was laid up in the house where the defendants 2 and 3 were living and he was depending on them for every thing; that therefore defendants 2 and 3 were in position to dominate the Will of Adinarayana Mandiri and by undue influence and coercion the said Will must have been brought about; that the terms of the Will were given in the deed by defendants 2 and 3 themselves and they are not the voluntary disposition of the Adinarayana Mandiri; that the defendants 2 and 3 were not adjudicating the rights of the parties in paras 3 and 4 and they were not germane for consideration; that it is incorrect to state that in the event of the Court holding the release deed as a true document it will enure to the benefit of Hindu Joint family of the plaintiff and defendants 1 to 3 and not to the plaintiff alone; that the said registered release deed was in favour of the plaintiff and the plaintiff alone was the beneficiary under the said document that the defendants 2 and 3 will not get any interest in the half share of the 4th defendant that as stated above the defendants have no right to assert their right by way of judgment; that the plaintiff was entitled to 5/8th share in all the suit properties and the share of the first defendant in the suit properties devolve on the plaintiff and defendants 2 and 3 in equal shares; that item 7 of the plaint was also joint family property. Hence, the suit has to be decreed. 9. On the above pleadings, the trial Court framed necessary issued, tried the suit and granted preliminary decree in favour of the plaintiff in respect of items 1 to 6, 8 to 10, 12 and 14 in A schedule properties and B schedule properties. Aggrieved over the disallowed part, the plaintiff preferred an appeal in A.S.No.112 of 1989 on the file of the Additional District Judge, Vellore, wherein the judgment of the trial Court was confirmed. Aggrieved over the same, the defendants 2, 3, 5, 7 and 8 have preferred this appeal. 10. At the time of admission, the following substantial questions of law were formulated for consideration of this second appeal. (1) Is the decision of the learned Additional District Judge that Ex.A-2 is a true and valid document not vitiated for non-consideration of material evidence? (2) Having regard to the well established principle of law and having regard to the recitals in Ex.A-2 is not the release under Ex.A-2 operate for the benefit of the defendants 1 to 3 and plaintiff? 11. What is challenged herein in this second appeal is the judgment of the lower appellate Court modifying the judgment of the trial Court in a suit filed by the first respondent herein for partition and separate possession. The first respondent in his suit for partition claimed 5/8th share in the suit properties. The trial Court granted a decree of partition of 1/8th share in the suit properties, after holding that the suit item 7 was not joint family properties and the document under Ex.A-2 was a void document. When an appeal was preferred by the first respondent, the learned appellate Judge held that Ex.A-2 is a valid document and allowed the appeal, as prayed for. As against the said decision of the first appellate Court finding Ex.A-2 as a valid document, this second appeal has been preferred by the defendants 2, 3, 5, 7 and 8. 12. When an appeal was preferred by the first respondent, the learned appellate Judge held that Ex.A-2 is a valid document and allowed the appeal, as prayed for. As against the said decision of the first appellate Court finding Ex.A-2 as a valid document, this second appeal has been preferred by the defendants 2, 3, 5, 7 and 8. 12. Arguing for the appellants, the learned counsel inter alia would submit that the trial Court was perfectly correct in holding that Ex.A-2 release deed was a void document, but the lower appellate Court without proper reasons has held that the said document was true and valid; that it has to be pointed out that the first respondent/plaintiff came forward with a specific case in the plaint that the fourth defendant executed Ex.A-2 release deed out of love and affection for him and the case of the conveyance for consideration was never pleaded and hence the lower appellate Court should have found that the first respondent/plaintiff would not get the share of the fourth defendant; that the trial Court has categorically found that the first respondent has not established the payment of consideration for Ex.A-2 release; that it is pertinent to point out that the lower appellate Court has not given a finding as to whether any consideration was paid under Ex.A-2; that P.W.2 has admitted that the fourth defendant was being looked after by the first respondent and the recital in Ex.A-2 was to the contrary and thus it would throw suspicion on the genuineness of Ex.A-2; that Ex.A-2 document could not have been true and genuine; that the first respondent for the first time has spoken in his evidence that too after the death of the fourth defendant, that he paid Rs.10,000 as consideration for Ex.A-2; that the first respondent has averred in his plaint that Ex.A-2 was executed out of love and affection but it was contrary to the evidence of P.W.1; that P.W.2, an attestor in his evidence stated that there was no panchayat, while P.W.1, the plaintiff would depose that there was a panchayat; that the first respondent has claimed that he paid Rs.10,000 before the Sub Registrar in the presence of panchayatars, but P.W.2 would depose that Rs.10,000 was paid at the place where Ex.A-2 was executed, that P.W.1 has deposed that the fourth defendant told him that he did not know the description of the property, but P.W.2 has stated that the fourth defendant has given the description of the property and this description was given in Ex.A-2; that Ex.A-2 recited that the release was effected but the plaintiff claimed that the release was in his favour only; that the plaintiff’s version that D-4 was blind by birth was retracted by him in the evidence; that the lower appellate Court has not considered that in view of the above evidence and pleadings of the first respondent as adverted to, it would be clear that Ex.A-2 was obtained fraudulently taking advantage of the blindness of the fourth defendant and the same was not a true and valid document, and hence the plaintiff was not entitled to claim the share of the fourth defendant exclusively for himself; that even if Ex.A-2 was accepted to be a genuine document, the release was in favour of the cosharers and therefore the plaintiff was not entitled to claim the entire half share of the fourth defendant; that the decision reported in Rottala Ranganatham Chetti v. Pulicat Ramaswami Chetti, (1952)2 M.L.J. 466 and Suresh Babu v. Madhu alias Kanchan, 97 L.W. 464 squarely apply to the present facts of the case, and the release by the fourth defendant even if it was true, the release would operate for the benefit of the other members of the co-prisoners and the plaintiff could not claim exclusive right for the half share of the fourth defendant, and thus the lower appellate Court was not correct in finding Ex.A-2 as a true document and granting the relief in favour of the first respondent, and hence it has got to be set aside and the judgment of the trial Court in that regard has got to be restored. 13. Vehemently opposing all the contentions of the appellants’ side, the learned counsel for the respondents would submit that the trial Court without proper perspective and consideration of the evidence adduced came the wrong conclusion that Ex.A-2 was a void document; that when the same was appealed against the learned District Judge after careful consideration of the available evidence has come to the conclusion that Ex.A-2 was a valid document and following the well settled principles of law enunciated by this Court and the Apex Court has found that Ex.A-2 though styled as a release deed was in effect a sale deed and that the first respondent/plaintiff has become the absolute owner in respect of the half share of the fourth defendant; that it is true that the payment of consideration of Rs.10,000 for Ex.A-2 release deed was not stated in the plaint, but it has to be seen that the payment of consideration was found in the document, and hence the appellant should not be allowed to take advantage of the mistake that was committed in not stating the said fact in the plaint; that the evidence of the first respondent regarding Ex.A-2 release deed was fully corroborated by the evidence of P.W.2 one of the attestors to the document; that the first appellate Court has categorically pointed out that the evidence of the attestor was clear and reliable and hence in view of the same, the document has got to be believed and has rightly found the same as genuine and valid document and thus there are no merits in the second appeal and it has to be dismissed. 14. The appellants herein have attacked Ex.A-2 release deed by stating that it was not a true and valid document and also vitiated because the same was not supported by consideration. Accepting their contentions, the trial Court has found Ex.A-2 document as void. But the lower appellate Court has reversed the said finding and has found that the said document was true and valid and was also supported by consideration, and though it was styled as a release deed, in effect it would convey the half share of the fourth defendant to the first respondent. The lower appellate Court in order to record such a finding has much relied on the evidence of P.W.2, one of the attesting witnesses to the said document. The lower appellate Court in order to record such a finding has much relied on the evidence of P.W.2, one of the attesting witnesses to the said document. Before adverting to the question whether Ex.A-2 is true, void and supported by consideration, it would be appropriate to make mention of the settled proposition of low regarding the power to execute a release deed in respect of his interest in the coparcenary property, and when such a release deed would operate as a conveyance. In a case reported in Chella Subbamma v. Chellay Bala Subba Reddi, (1945)1 M.L.J. 140 : A.I.R. 1945 Mad. 142 it has been held as follows: “A member of a joint hindu family governed by the Mitakshara law cannot give his interest in the family estate to one of several coparceners if they remain joint in estate. In such circumstances he can relinquish his interest but the relinquishment operates for the benefit of all the other members.” It has been held in a case reported in Rottala Ranganatham Chetti v. Pulicat Ramaswami Chetti, (1952)2 M.L.J. 466, thus: “It has now been definitely settled by judicial decisions that it is incompetent to an undivided member of a Hindu family to alienate by way of gift his undivided share or any portion there of, and that such alienation is void in toto, and this principle cannot be evaded by the undivided member professing to make an alienation for value, when such value is manifestly inadequate and inequitable.” In the decision reported in Suresh Babu v. Madhu alias Kanchan, 97 L.W. 464, it has been held that: “It is a well settled principle of law that a member of a joint Hindu family governed by the Mitakshar law cannot give his interest in the family estate to one of several coparceners if they remain joint in estate and in such circumstances, he can relinquish his interest but the relinquishment operates for the benefit of al the other members. It is also well settled that a registered instrument styled a release deed releasing the right, title and interest of the executant in any property in favour of the releasee for valuable consideration may effect a transfer and though the word surrender is used and though the document is styled a release deed, it operated as assignment.” The lower appellate Court in order to hold that Ex.A-2 was a valid document and the same would operate as a deed of conveyance, though the document was styled a release deed, has relied on the decisions cited supra. But it remains to be stated that before applying the above decisions, it has to be found out whether Ex.A-2 document was true, genuine and supported by consideration, as alleged by the first respondent/plaintiff. 15. The first respondent as plaintiff in the suit has claimed half share in the specific items alleging that the fourth defendant who was entitled to the half share, has executed a release deed in his favour under Ex.A-2. Under the stated circumstances, it is needless to say that a duty is cast upon the first respondent/plaintiff to prove the document in question. After careful consideration of the evidence, the Court has to say that the first respondent has miserably failed to prove Ex.A-2 document. On the contrary, there are so many suspicious circumstances which would throw doubt on the truth and genuineness of the same. Admittedly the fourth defendant was entitled to half share in the properties. The specific case of the first respondent was that in respect of the half share, the fourth respondent has executed Ex.A-2 release deed. What are all pleaded in the plaint in this regard is as follows: “The other 4/8th shares belong to Damodaran, the 4th defendant. Damodaran is a blind person by birth and he remains un-married. As he is blind, only the plaintiff is attending to him and taking care of him. On account of affinity between the plaintiff and the 4th defendant, the 4th defendant, Damodaran released his entire interest in the joint family properties in favour of the plaintiff by executing a registered release deed dated 2.4.1980.” Nowhere has the plaintiff stated that he has paid the consideration of Rs.10,000 for the said release. On account of affinity between the plaintiff and the 4th defendant, the 4th defendant, Damodaran released his entire interest in the joint family properties in favour of the plaintiff by executing a registered release deed dated 2.4.1980.” Nowhere has the plaintiff stated that he has paid the consideration of Rs.10,000 for the said release. For the first time, the first respondent has stated that he paid a consideration of Rs.10,000 to the fourth defendant towards the release of his half share only at the time of his evidence. Had it been true that a sum of Rs.10,000 was paid by the first respondent, there was no impediment for making an averments in the plaint in that regard. The first respondent as plaintiff has deposed that the said payment was made before the Sub Registrar, but P.W.2 examined as an attesting witness has deposed that the payment of Rs.10,000 was made by the first respondent to the fourth defendant at the time of the execution of the document. It is pertinent to point out that the fourth defendant was well alive at the time of the filing of the suit, but before filing the written statement he was dead. All the above would cast a doubt whether the said consideration of Rs.10,000 would have been paid by the first respondent to the fourth defendant Damodaran. 16. It has to be seen that nowhere in Ex.A-2 it was recited that the said release was made by the fourth defendant Damodaran either in view of the love and affection or in view of the attendance and care being exercised by the first respondent on him, as averred in the plaint. The averment in the plaint stating that the first respondent was attending and taking care of the fourth defendant was thoroughly falsified by his evidence. The plaintiff has categorically deposed that it was his father the first defendant in the suit has maintained him. From his evidence it would be abundantly clear that the first respondent was also living along with the other members of his family till the filing of the suit. The plaintiff has categorically deposed that it was his father the first defendant in the suit has maintained him. From his evidence it would be abundantly clear that the first respondent was also living along with the other members of his family till the filing of the suit. Under the stated circumstances, it would be highly improbable why the said fourth defendant should execute a release deed in respect of his half share in favour of the first respondent excluding all other members of the family of the first defendant and in particular the first defendant who maintained him. It is admitted by the parties that the fourth defendant was a blind person by birth and the said fact has also been pleaded by the plaintiff, but in his evidence he has denied the same. 17. According to the first respondent, before the execution of the release deed under Ex.A-2 by the fourth defendant, a panchayat was constituted following a quarrel between him and the fourth defendant in respect of the property in question and it was decided that he should pay Rs.10,000 to the fourth defendant towards his share and accordingly he paid the same. It is not the case of the first respondent that his father had knowledge about the dispute raised by the fourth defendant in respect of the property or the panchayat constituted in that regard or the execution of the document under Ex.A-2. While it was admitted by the first respondent that all lived jointly, a panchayat, the payment of consideration of Rs.10,000 and the execution of the document under Ex.A-2 by a person like the fourth defendant who was blind from birth, could not have taken place without the knowledge of the first defendant. The document under dispute viz., Ex.A-2 did not contain any description of property. The first respondent has attempted to explain it by stating that the fourth defendant had told him that he did not know the description of the property. On the contrary P.W.2 who was examined as an attesting witness, has deposed that the description of the properties was given by the fourth defendant and they were given in Ex.A-2. The lower appellate Court has not fully adverted its attention as to the passing of consideration as found under Ex.A-2. Insofar as the evidence of P.W.1, it could not be relied because it was interested. The lower appellate Court has not fully adverted its attention as to the passing of consideration as found under Ex.A-2. Insofar as the evidence of P.W.1, it could not be relied because it was interested. The evidence of the only witness viz., P.W.2 to prove Ex.A-2 release deed was not free from doubts, it was inconsistent and discrepant from the evidence of P.W.1. Under such circumstances, a duty was cast upon the plaintiffs to prove the document by examining the other attesting witnesses, but they have not been examined. All the above would go to show that the said document under Ex.A-2 could not have come into existence in the normal course. The available evidence as discussed above would clearly show that the first respondent taking undue advantage of the blindness of the fourth defendant has obtained Ex.A-2 document by exercising fraud on him without paying the consideration as alleged therein and without giving the details of the properties in respect of which the release was made. Under the stated circumstances without any hesitation it has to be held that Ex.A-2 document was not a true and valid one and not supported by consideration, and hence the judgment of the lower appellate Court recording a finding that Ex.A-2 was a true and valid document and not vitiated for non consideration cannot be sustained. Since the said document under Ex.A-2 is found as not genuine and valid and since it was not supported by consideration, the other question whether the recitals under Ex.A-2 would operate for the benefit of the defendants 1 to 3 and the plaintiff would not arise. Therefore, the judgment of the first appellate Court is liable to be set aside only to the extent stated above. 18. In the result, this second appeal is allowed, setting aside the judgment and decree of the lower appellate Court holding that the first respondent/plaintiff was entitled to half share of the fourth defendant, in view of Ex.A-2 release deed. In other respect, the judgment and decree of the lower appellate Court are confirmed. The parties shall bear their costs.