Judgment : The above Second Appeal arises against the judgment and decree in A.S.No.22 of 1998 on the file of Sub Judge, Hosur confirming the Judgment and Decree in O.S.No.37 of 1995 on the file of the District Munsif, Court, Hosur. 2. The second defendant in the suit is the appellant in the above second appeal. The respondents 1 to 6 are plaintiffs and the 7th respondent is the third defendant in the suit 3. The plaintiffs filed suit in O.S.No.37 of 1995 on the file of District Munsif Court, Hosur for partition claiming 1/3rd share in the suit properties. 4. The brief case of the plaintiffs are as follows:- .(i) The suit properties originally belonged to one Dasappa. On 11. 1919, the said Dasappa gifted the suit property in favour of his wife Muniamma and his daughter Goopalli Muniamma under a registered gift deed. On 25. 1955, the said Muniamma gifted her half share also in favour of her daughter Goopalli Muniamma as she had no male issue under a registered gift deed. Thus, the said Goopalli Muniamma became the absolute owner of the suit properties. The said Goopalli Muniamma died in 1981 leaving behind her husband/first defendant, one son/second defendant and two daughters/3rd defendant and one Kamala. The said Kamala died prior to the filing of the suit. The plaintiffs are Goopalli Muniammas husband and children. After the death of Goopalli Muniamma, her husband, one son and two daughters are equally entitled to the suit properties. The defendants and the deceased Kamala are equally entitled to 1/4th share in the suit property. Since the said Kamala died prior to the suit, the plaintiffs are entitled to 1/4th share of the Kamalas share. The 1st plaintiff along with the husband of Kamala and the sons and daughters of Kamala are claiming the share of Kamala, who is one of the daughters of the said Goopalli Muniamma. .(ii) According to the plaintiffs, the partition deed dated 20.1.1981 was executed between the 2nd defendant, 2nd defendants father, who is the 1st defendant, the 2nd defendants mother namely, Goopalli Muniamma. The said sale deed cannot be construed as partition deed since the defendants 1 and 2 were not sharers of the properties belonging to Goopalli Muniamma. Even if the said dated is construed as gift deed as held by this court in its judgment dated 110. The said sale deed cannot be construed as partition deed since the defendants 1 and 2 were not sharers of the properties belonging to Goopalli Muniamma. Even if the said dated is construed as gift deed as held by this court in its judgment dated 110. 1996 in second Appeal No.1291 of 1996, the said deed is not true and valid one. That the Goopalli Muniamma was aged more than 65 years when the said deed was executed and she was completely blind for more than five years before the execution of the said deed and she was also ill and bedridden and was not in a position to move about. Goopalli Muniamma was extremely weak both physically and mentally and was not able to recognize what she was doing. She was under the care and influence of the 2nd defendant. The 2nd defendant was exercising his influence on her. Goopalli Muniamma died just a week after the execution of the document. When the said deed was said to have been executed, the second defendant appears to have fraudulently obtained the said deed from Goopalli Muniamma. The first defendant was also extremely old and he was also extremely week both physically and mentally and he was also under the care and influence of the second defendant. According to the plaintiffs, it was only the second defendant, who is managing the affairs of the family and the first defendant was under the control of the second defendant. According to the plaintiffs, Goopalli Muniamma did not execute the said dated 20.1.1981 while she was in a sound and disposing state of mind. The sale deed dated 20.1.1981 was also not duly attested as per law. It is a fraudulent document created to defraud the plaintiffs and the third defendants legitimate share in the suit properties. The plaintiffs specifically denied the execution and the attestation of the said deed dated 20.1.1981. According to the plaintiffs, the document will not bind the plaintiffs and their shares in the suit properties. The 1st defendant died on 1. 1995 leaving behind the plaintiffs and the defendants 2 and 3 as his legal heirs. After his death, his 1/4th share in the suit property, devolved upon the plaintiffs and the defendants 2 and 3. According to the plaintiffs, the document will not bind the plaintiffs and their shares in the suit properties. The 1st defendant died on 1. 1995 leaving behind the plaintiffs and the defendants 2 and 3 as his legal heirs. After his death, his 1/4th share in the suit property, devolved upon the plaintiffs and the defendants 2 and 3. Hence, after the death of the 1st defendant, the plaintiffs share in the suit properties had enlarged to 1/3rd share in all the suit properties. The plaintiffs demanded partition of the suit properties but the defendants refused for amicable partition of the joint family properties. Therefore, the plaintiffs filed the above suit for partition claiming 1/3rd share in the suit properties. 5. The brief case of the defendants are as follows: .(i) According to the defendants, in the partition deed dated 20.1.1981, A schedule was allotted to both father and mother of 1st defendant and the B schedule was allotted to the 1st defendant. Item Nos. 1 to 3 and 5 were allotted to the share of Sreenivasaiah, son of Goopalli Muniamma and her husband Ramaiah. In item No.4 of the suit property, Goopalli Muniamma sold 0.05 acres to the husband of the 3rd defendant and he is in possession and enjoyment since then. The husband of the 3rd defendant built two bus sheds in his property in the year 1963 and was collecting the rent from it since then. Apart from the above properties, there was no other properties of Goopalli Muniamma available for any partition. .(ii) In the partition deed dated 20.1.1981, both wife and husband have jointly taken the A schedule property. Hence, the A schedule belongs to the 1st defendant and none else. That the defendants 1 to 3 and the wife of 1st plaintiff are entitled to the 1/4th share is denied by the defendants. Kamala did not have any right to succeed to any property, since there is no property of Goopalli Muniamma at all. Hence, the question of succession does not arise. After the marriage of Kamala, she was in her husbands house and was never in possession and enjoyment of the suit properties either physical or constructive. The plaintiffs never resided in the suit house. Hence, the question of succession does not arise. After the marriage of Kamala, she was in her husbands house and was never in possession and enjoyment of the suit properties either physical or constructive. The plaintiffs never resided in the suit house. Plaintiffs are not entitled for any partition which are in the possession and enjoyment of the first defendant who alone has got title except item No.4 which was already sold. The plaintiffs are not entitled to any share in the suit properties. Hence, the defendants prayed for dismissal of the suit. 6. At the first instance the trial court after considering the entire case, came to the conclusion that, by virtue of Ex.B2 partition deed dated 20.1.1981, plaintiffs are not entitled to any right and the suit was dismissed. The trial court also found that Ex.B2 is a valid document executed by the deceased especially when the same was executed jointly by her husband. 7. Aggrieved by the judgment and decree of the trial court, the plaintiff preferred appeal in A.S.No.73 of 1996 on the file of Subordinate Judge, Hosur. The lower appellate court held that over the suit properties, the second defendant had no antecedent right. Therefore, Muniamma can execute only a sale or gift. Since she has not executed any such document, Ex.B2 partition is of no avail and therefore, Goopalli Muniamma continued to be the owner. The lower appellate court also found that Goopalli Muniamma died few days after Ex.B2 and it cannot be said that the deceased knew the contents of what she has executed. Taking that view, a preliminary decree was passed, declaring that the plaintiffs are entitled to 1/4th share in the suit properties. 8. Aggrieved over the judgment and decree in A.S.No.73 of 1996, the second defendant filed second appeal in S.A.No.1291 of 1996. This court by judgment dated 110. 1996 in the said second appeal, considered the legal effect of Ex.B2, after considering various decisions relied on by the learned counsel for the appellants and respondents this court ultimately remanded the suit to the trial court since the trial court as well as the appellate court failed to consider whether Ex.B2 was properly executed and proved. This court found that the burden is only on the defendants to prove the validity of Ex.B2. This court found that the burden is only on the defendants to prove the validity of Ex.B2. This court also found that Ex.B2 can be construed as a gift deed and the nature of proof must be in conformity with the said construction of the document. On these lines, this court remanded the matter to the trial court. On remand, the plaintiffs filed application in I.A.No.164 of 1998 to amend the plaint and the said application was dismissed and the plaintiffs preferred Civil Revision Petition in C.R.P.No.3293 of 1997 and by order dated 12. 1997, this court allowed the Civil Revision Petition and permitted the plaintiffs to amend the plaint. The amended plaint contains fresh paragraphs 4a, 4b and 4c by way of introduction of new facts. 9. The 2nd defendant filed his additional written statement on the following grounds: .(i) According to the 2nd defendant, the facts contained in these new paragraphs 4a, 4b and 4c are culled out of the evidence on record and to fill up the gaps in the suit filed by the plaintiffs. Since this court found that the document dated 20.1.1981 is a gift deed and the same has been acted upon, the averments in paragraph Nos. 4a, 4b and 4c were introduced. .(ii) According to the 2nd defendant, the document dated 20.1.1981 has been created with full knowledge and consent of all the parties to the document and the same has been acted upon from the date of document. That Goopalli Muniyamma was blind for more than five years before the document came into existence has been denied by the 2nd defendant. That her health condition was good and there was neither force nor undue influence in the execution of the document. The 2nd defendant also denied that Gooppali Muniyama was suffering from extreme physical and mental weakness. Her death was due to natural causes of old age. The 2nd defendant also denied that both father and mother did not execute the document while in sound and disposing state of mind. The document was duly and properly attested. Except saying that the plaintiffs are denying the due execution and attestation of the document, it is not stated why and how it is invalid. (iii) According to the 2nd defendant, the shops and buildings are not joint family properties. The document was duly and properly attested. Except saying that the plaintiffs are denying the due execution and attestation of the document, it is not stated why and how it is invalid. (iii) According to the 2nd defendant, the shops and buildings are not joint family properties. The 1st defendant had voluntarily executed a will of his properties in favour of grand sons on 18. 1985. Therefore, it is incorrect that the share of the 1st defendant would devolve on the plaintiffs and also on the defendants 2 and 3. It is incorrect to contend that the share of the plaintiffs would get enlarged as 1/3rd in all the suit properties. The share of the 1st defendant vested in legatees under the will dated 18. 1985 executed by the 1st defendant in favour of his minor grand sons. The will came into existence and the properties covered under the will vests with the legatees through their legal guardian. (iv) According to the 2nd defendant, the amendments contained in paragraphs 4a, 4b and 4c seek to create a new case. After the execution of sale deed on 21. 1981, the 2nd defendant, at his cost and expense, constructed 7 shops and 17 houses in S.No.121 A/1A and he is in continuous possession and enjoyment of the suit properties since then. Therefore, the 2nd defendant prayed for dismissal of the suit. 10. Before the trial court, on the side of the plaintiffs, 4 witnesses were examined and 4 documents Exs. A1 to A4 were marked. On the side of the defendants, 3 witnesses were examined and 11 documents Exs. B1 and B11 was marked. 11. Heard Mr.V.Raghavachari, learned counsel appearing for the appellant and Mr.S.Parthasaraty learned senior counsel for the respondents. 12. At the time of admission of the above Second Appeal, the following substantial questions of law arose for consideration:- i)Whether the courts below are erred in rejecting Ex.B2 when its execution had been upheld by the High court and due execution had been proved by D.W.2 and D.W.3 ? 13. The learned counsel for the appellant also raised the following substantial questions of law in the memorandum of grounds: "i)Whether the courts below are right in disbelieving Ex.B2, when its execution had been upheld by the High court and due execution had been proved by examination of P.W.2 and P.W.3? 13. The learned counsel for the appellant also raised the following substantial questions of law in the memorandum of grounds: "i)Whether the courts below are right in disbelieving Ex.B2, when its execution had been upheld by the High court and due execution had been proved by examination of P.W.2 and P.W.3? ii) Whether the courts below have not misplaced the burden of proof while rejecting Ex.B2 and should it not have seen that the obligation to disprove the document is upon the plaintiffs particularly when they have alleged that Goopali Muniamma was not in sound disposing state of mind and health and the document had been secured under fraudulent circumstances? iii) Whether the courts below ought not to have held that under proviso to section 68 of the Evidence Act in the absence of specific denial the attesters to the document need not be examined? iv) Whether the courts below ought not to have held that the plaintiffs admitted the execution of Ex.B2 and under such circumstances, should it not applied section 70 of the Evidence Act and hold against the plaintiffs as regards the execution? v) Whether the courts below ought not to have concluded that the attestation of a document stands proved by examination of the scribe (DW2) and DW3, the identifying witness? vi) Whether the courts below ought not to have concluded that in the absence of cross examination of DW2 and DW3 as regards the execution of Ex.B2, the same stands conclusively proved and the respondents are estopped from challenging it? vii) Whether the courts below ought not to have applied the elementary principle that in absence of cross-examination on a crucial issue the same is deemed to have been admitted and on the facts of the case there is no cross examinations as regards the attestation and should not the courts below conclude that Ex.B2 cannot be impeached? viii) Whether the courts bellow have not misplaced the burden of proof upon the appellant, when the plaintiffs have challenged the mental capacity of Goopali Muniamma? xi) Whether the courts are right in decreeing the suit when proper and necessary to the proceedings viz., the legatees of Ramaiah have not been made parties in the suit? viii) Whether the courts bellow have not misplaced the burden of proof upon the appellant, when the plaintiffs have challenged the mental capacity of Goopali Muniamma? xi) Whether the courts are right in decreeing the suit when proper and necessary to the proceedings viz., the legatees of Ramaiah have not been made parties in the suit? x) Whether the courts below are right in decreeing the suit in respect of suit item No.4 when the appellant had established he had raised extensive structure from and out of his earnings? 14. Mr. V. Raghavachari, learned counsel appearing for the appellants contended that once this court in S.A.No.1291 of 1996 found that Ex.B2 document can be construed as a gift, the courts below ought not to have gone into that question again; that the genuineness of the document cannot be subjected to scrutiny before the court below when this court rejected the case of the respondents of having secured the document by undue influence; that the burden of proof as regards in-capacity of Goopali Muniama is upon the respondents/plaintiffs and that they have not let in any evidence to establish that the said deed had been secured by means as alleged by them; that the attestors were not available at the time of trial; that the appellant/2nd defendant had examined himself, the scribe and the identifying witness to the document to prove the case of the appellant/2nd defendant, on the contrary, none was examined at the instance of the respondents/plaintiffs except P.W.4; that after even in the amendment of pleadings, no evidence had been adduced to attack Ex.B2 and under section 68 of the Indian Evidence Act, except in case of will, in cases of all other documents required to be attested in the absence of specific denial, there is no necessity to examine the attestors; that in the absence of cross examination of DW2 and DW3 as regards the execution of Ex.B2, the same stands conclusively proved and the respondents are estopped from challenging it. 15. Learned counsel for the appellant relied on the following decisions for genuineness of registered will: (i) 1995 (2) SCC 664 (P.P.K.Gopalan Nambiar v.P.P.K.Balakrishnan Nambiar and others). 15. Learned counsel for the appellant relied on the following decisions for genuineness of registered will: (i) 1995 (2) SCC 664 (P.P.K.Gopalan Nambiar v.P.P.K.Balakrishnan Nambiar and others). From the above judgment it could be seen that though it is the duty of the propounder of the will to prove the will and to remove all the suspected features, but there must be real, germane and valid suspicious features and not fantasy of the doubling mind. In the present case the suspicion entertained by the trial court and the High court was without any basis. .(ii) In AIR 1999 SC 2203 (Brij Raj Singh (dad) by L.Rs. & ors. v. Sewak Ram and anr.), it is held as follows: "27. We are of the view that the above extracts from the judgments of the various high courts do reflect the correct position in law. In the case on hand P.W.6 has categorically stated that he has signed as scribe, signed as identifying witness. We also find his signatures at three places. Nothing was elicited from this witness to disbelieve his statement in chief examination. It is not denied that the deed was registered as per the Indian Registration Act. Therefore, even on merits the appellant has established the due execution and attestation of the gift deed according to law. We find from the original gift deed at the first apge by the side of the signatures of the donor,two witnesses have subscribed their signatures. We, therefore,hold that the lower appellate court and the High court went wrong in allowing the defendants to raise the plea of non-compliance of section 123 of the Transfer of Property Act and in holding that the gift deed was not proved." (iii) 2004(7) SCC 398 (Gounti Satya Reddi v. Govt of Andhra Pradesh and others). From the above judgment it has been held that in the case of non examination of attesting, could not be a circumstance strong enough to hold that a false document was thereby created. 16. Learned counsel for the appellant relied on the following judgments for presumption under section 114 of Indian Evidence Act. Now, It will be appropriate to extract the provisions of Section 114 of Indian Evidence Act which reads as follows: 114. 16. Learned counsel for the appellant relied on the following judgments for presumption under section 114 of Indian Evidence Act. Now, It will be appropriate to extract the provisions of Section 114 of Indian Evidence Act which reads as follows: 114. Court may presume existence of certain facts.-The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. (i) AIR(1996) SC 2677 (Ajay KrishaShinghal and others v. Union Bank of India and others), in paragraph 12 it has been held as follows: "12. After perusing the records and satisfying ourselves and also considering various cogent and weighty reasons given by the learned Judges, we are of the opinion that the substance of the notification under Section 4(1) was duly published in the locality. It is not the law and could and would not be the law that publication of the substance of Section 4(1)notification in the locality should been established beyond shadow of doubt and benefit should be extended to the owner or interested person of the land. Obvious thereto, presumption under Section 1149e) of Evidence Act has been raised that official acts have been properly done unless proved otherwise. We are satisfied that it was properly done. It is futile to reiterate the settled legal position that the publication of the notification under Section 491) in the Gazette and substance thereof in the locality are mandatory requirements and the omission thereof renders the notification void. In Khub Chands case, this Court had held the same view. But as recorded earlier, since substance of the notification was published in the locality, the second limb of the requirement also stands complied with. Considered from this perspective, we of the considered view that the High Court has not committed any error of law." (ii) 2000(4) CTC 11 (D.J.Dhanraj v. D.Venkatarathinam and another) In the above judgment this court held that if purchaser did not make any allegations of fraud or collusion against bailiff or against court official, the presumption that official acts are performed regularly will apply in such case. (iii) In 2008(1) MLJ 193(SC)(Asokan v. Lakshmikutty and ors.), the Apex Court held as follows: "18. (iii) In 2008(1) MLJ 193(SC)(Asokan v. Lakshmikutty and ors.), the Apex Court held as follows: "18. When a registered document is executed and the executors are aware of the terms and nature of the document, a presumption arises in regard to the correctness thereof. (See Prem Singh and ors. v. Birbal and ors. MANU/SC/8139/2006) When such a presumption is raised could with the recitals in regard to putting the donee in possession of the property, the onus should be on the donor and not on the donee. 19. In Alavi (supra) paripoornan, J. (as His lordship then was) held: "It is settled law that where the deed of gift itself recites that the donor has given possession, of the properties gifted to the donee, such a recital is binding on the heirs of the donor. It is an admission binding on the donor and those claiming under him. Such a recital raised a rebuttable presumption and is ordinarily sufficient to hold that there was delivery of possession. Therefore, the burden lies on those who allege or claim the contrary to prove affirmatively that in spite of the recitals in the gift deed to the effect that possession has been delivered over, in fact, the subject matter of the gift was not delivered over to the donees. 20. Section 91 of the Indian Evidence Act covers both contract as also grant and other types of disposal of property. A distinction may exist in relation to a recital and the terms of a contract but such a question does not arise herein inasmuch as the said deeds of giftwereexecuted out of love and affection as well as on the ground that the donee is the son and successor of the donor and so as to enable him to live a good family life. 21. Could they now turn round and say that he was to fulfill a promise? The answer thereto must be rendered in the negative. It is one thing to say that the execution of the deed is based on an aspiration or belief, but it is another thing to say that the same constituted as onerous gift. What, however, was necessary is to prove undue influence so as to bring the case within the purview of Section 16 of the Indian Contract Act. It was not done. What, however, was necessary is to prove undue influence so as to bring the case within the purview of Section 16 of the Indian Contract Act. It was not done. The deeds of gift categorically state, as an ingredient for a valid transaction, that the property had been handed over to the donee and he had accepted the same. In our opinion, even assuming that the legal presumption therefore may be raised, the same is a rebuttble one but in a case of this nature, a heavy onus would lie on the donors." 17. With regard to burden of proof and plea of undue influence, the learned counsel for the appellant relied on the following judgments. (i) AIR 1963 SC 1279 (Ladli Prasad Jaiswal v. Karnal Distillery Co. Ltd. and Ors.), it is held as follows: "26. Whether a particular transaction was vitiated on the ground of undue influence is primarily a decision on a question of fact. In Satgur prasad v. Har narain Das I.L.R. (1932) IndAp 147, the privy Cuncil held that in a suit to set aside a deed on the ground that it was produced by undue influence and fraud, the finding that it was so procured is a finding of fact and isnot liable to be reopened if fairly tried. Under the Civil producer Code, a second appeal does not lie to the high Court, except on the grounds speficied in the relevant provision of the Code, prescribing the right to prefer a second appeal, and the High Court has no jurisdiction to entertain a second appeal "on the ground of an erroneous finding of fact however gross or inexcusable the error may seem to be" (Mussummant Durga Choudhrain v. jawahir Singh Choudhri I.L.R.(1890) IndAp 122. But the challenge before Bishan narain.J., to the decision of the district judge was founded not on the plea that appreciation of evidence was erroneous, but that there were no adequate particulars of the plea of undue influence, that the particulars of facts on which undue influence was held established by the District Judge were never set up, that there was no evidence in support of the finding of the District Judge and that burden of proof on a misconception of the real nature of the dispute was wrongly placed on the plaintiff. A decision of the first appellate Court reached after placing the onus wrongly or based on no evidence or where there has been substantial error of defect in the procedure, producing error or defect in the decision of the case on the merits, is not conclusive and a second appeal lies to the High Court against that decision. 27. Order 6 Rule 4 of the Code of Civil Procedure provides that in all cases in which the party pleading relies on any misrepresentation, fraud breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms in the Appendix particulars (with dates and items if necessary)shall be stated in the pleading. The reason of the rule is obvious. A plea that a transaction is vitiated because of undue influence of the other party thereto, gives notice merely that one or more of a variety of insidious forms of influence were brought to bear upon the party pleading undue influence, and by exercising such influence, an unfair advantage was obtained over him by the other. But the object of a pleasing is to bring the parties to a trial by concentrating their attention on the matter in dispute, so as to narrow the controversy to precise issues, and to give notice to the parties of the nature of testimony required on either side in support of their respective cases. A vague or general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence, and the unfair advantage obtained by the other. This rule has been evolved with a view to narrow the issue and protect the party charged with improper conduct from being taken by surprise. A plea of undue influence must, to serve that dual purpose, be precise and all necessary particulars in support of the plea must be embodied in the pleading: if the particulars stated in the pleading are not sufficient and specific the court should, before proceeding with the trial of the suit, insist upon the particulars, which given adequate notice to the other side of the case intended to be set up. 30. 30. The plea of undue influence and coercion by the Company and defendants 2 to 5 was raised in terms which were identical. The plea analysed in its component parts may be stated as follows: "(1) Because of the resolution dated October 16, 1945 the plaintiff "succeeded in getting dictatorial powers over the Company, practically usurping all the powers of the General body of the shareholders and thereby purporting to deprive them to exercise even those rights which they" were "legally entitled to exercise under the law"; (2) "These resolutions which gave the plaintiff a complete veto over the affairs of the Company (which is not permissible under any valid constitution) were obtained by the plaintiff at the point of a dagger"; (3)"That the plaintiff was refusing to hand over charge of the money, books and the entire assets of the Company and using the funds of the Company for ruinous litigation against the defendants who on the other hand were having to prosecute their cases out of their meager funds which too were dwindling fast"; (4)"Taking full advantage of his position and knowing fully well the resources of the defendants, the plaintiff succeeded in coercing the defendants in submitting to his dictations and virtually compelled them to pass these constitutional resolutions". 33. The pleading which was regarded as one of the undue influence also suffers from a lack of particulars. How the plaintiff took advantage of his position as a person in possession of the assets of the company and by what device he compelled the defendants to submit to his will has not been stated. Section 16 of the Indian Contract Act, which incorporates the law relating to undue influence in its application to contracts is but a particularisation of a larger principle. All transactions procured in the manner set out therein, are regarded as procured by the exercise of undue influence. Section 16 of the Contract Act provides: "(1) A contract is said to be induced by undue influence where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. Section 16 of the Contract Act provides: "(1) A contract is said to be induced by undue influence where the relations subsisting between the parties are such that one of the parties is in a position to dominate the will of the other and uses that position to obtain an unfair advantage over the other. .(2) In particular and without prejudice to the generality of the foregoing principle, a persons is deemed to be in a position to dominate the will of another- .(a) where he holds a real or apparent authority over the other, or where he stands in a fiduciary relation to the other; or .(b) where he makes a contract with a person whose mental capacity is temporarily or permanently affected by reason of age, illness, or mental or bodily distress. .(3) where a person who is in a position to dominate the will of another, enters into a contract with him, and the transaction appears, on the fact of it or on the evidence adduced, to be unconscionable, the burden of proving that such contract was not induced by undue influence shall lie upon the person in a position to dominate the will of the other. Nothing in this sub-section shall affect the provision of section 111 of the Indian Evidence Act, 1872." 34. The doctrine of undue influence under the common law was evolved by the Courts in England for granting protection against transactions procured by the exercise of insidious forms of influence spiritual and temporal. The doctrine applies to acts of bounty as well as to other transactions in which one party exercising his position of dominance obtains an unfair advantage over another. The Indian enactment is founded substantially on the rulels of English common law. The first sub-section of s.16 lays down the principle in general terms. Bu sub-section 92) a presumption arises that a person shall be deemed to be in a position to dominate the will of another if the conditions set out therein are fulfilled. Sub-section (3) lays down the conditions for raising a rebuttable presumption that a transaction is procured by the exercise of undue influence. Bu sub-section 92) a presumption arises that a person shall be deemed to be in a position to dominate the will of another if the conditions set out therein are fulfilled. Sub-section (3) lays down the conditions for raising a rebuttable presumption that a transaction is procured by the exercise of undue influence. The reason for the rule in the third subsection is that a person who has obtained an advantage over another by dominating his will, may also remain in a position to suppress the requisite evidence in support of the plea of undue influence." (ii) In 1996(2) L.W. 600 (Dharman and 5 others v. Marimuthu) it is held as follows: "If on the face of the document, the nature of the transaction covered by the document appears to be either unconscionable or unnatural one, the burden of proving that the transaction was not induced by undue influence is considered uniformly to rest with the beneficiary under the document. That apart, the various decisions also point out sufficiently indicating as to what type of circumstances present in a particular given case could be taken to provide the necessary indicia or test to form an opinion about the unnatural or unconscionable character of the transaction. Though normally, the court does not concern itself with a man making even an improvident gift or effecting a disposition of the property in a way that no right-minded person would be disposed to do so, such factors or circumstances appended with the execution of a gift may furnish a clue or serve as a pointer to the fact that the donor either did not intend it or that it was an unconscionable and unnatural transaction and in such circumstances the beneficiary under such transaction is bound in law to clear such suspicions or explain about the existence of some valid or other reason for such a disposition being made. It is in such circumstances, the Apex Court also on more that one occasion observed that if the transaction appears to be unconscionable, then the burden of proving that the contract was not induced by undue influence lies heavily upon the beneficiary under the document who was in a position to dominate the will of the other." (iii) In AIR 1999 MAD 40 ( S.Kaliyammal and others v. K.Palaniammal and others) it is held as follows: "6. I carefully considered the contentions of both the counsel. The short question involved in this second appeal is whether the will executed by Nanjammal in favour of the defendants 3 and 4 has been proved. The main contention of the counsel of the appellants is that the plaintiffs have denied the execution of the said will by Nanjammal. 7. On the contrary it is contended on behalf of the defendants that the execution of the will by Nanjammal has been admitted by the plaintiffs and their only plea is that the will has been executed by the said Nanjammal by coercion and undue influence. Hence it is unnecessary to prove the execution of the will. 8. The lower appellate Court has found that Ex.B-26, the will is valid on the ground that the will has been given effect to in accordance with intention of the testator. Immediately after the death of the testator, the revenue r3cords has been changed in the name of the defendants 3 and 4 and they have produced number of documents to establish their possession. The plea of the plaintiffs that the will was executed under undue influence has not been established by the plaintiffs and on that ground the lower appellate Court has allowed the appeal. 9. To consider the plea of the parties, I am of the view (that) (sic) it is necessary to refer to the averments made by the plaintiffs in the plaint. The relevant paragraphs 6, 7 and 11 or the plaint are as follows: "Nanjammal lived with her sons at Kalapanaickenpalayam and used to visit her daughters at Edaiyapalayam and stay there for some days also. While so on one of these visits to Elaiyarapalayam the husband of the defendants 3 and 4 namely the Kavundary Gounder by practising fraud and undue influence on Nanjammal who was aged 75 years, and in weak state of health appear to have obtained her thumb mark on a papers by some misrepresentation, got engrossed on alleged will thereon purporting to have been executed by her and took to the Sub-Registrars office and got it registered. 10. From the above pleadings, it is clear that there is no specific denial by the plaintiffs with regard to the execution of the will by Nanjammal. 10. From the above pleadings, it is clear that there is no specific denial by the plaintiffs with regard to the execution of the will by Nanjammal. A perusal of the above extracted portions in the plaint would clearly establish that the plaintiffs had impliedly admitted the execution of the will by the said Nanjammal and their only plea is that Nanjammal has executed the disputed will only under undue influence and fraud played by the husband of the defendants 3 and 4. It is the further plea of the plaintiff that Nanjammal was residing with the sons and she was visiting her daughters only in lucid intervals and on one such occasion the will has been brought out by the husband if the defendants 3 and 4. 11. When the specific plea of the plaintiffs is that the husband of the defendants 3 and 4 has got the will executed by Nanjammal under defraud and undue influence, then naturally the burden is on the plaintiffs to establish the same. But unfortunately there is absolutely no evidence to prove the averments made in the plaint. In fact, except the averments made in the plaint that the will was executed by the Nanjammal by fraud and undue influence, there is no other material to come to the conclusion that the will has been executed under undue influence. Even in the evidence, PW-1has stated as follows: (vernacular matter omitted) Even as per the evidence, it is admitted that the will has been executed by the Nanjammal but it was only under fraud and undue influence." (iv) In 1999 (2) CTC 481 (Hameed Ghosh Beevi and another), it is held as follows: 16. The Courts below haveanalysed the entire evidence on record and come to the conclusion that the appellants knew about what they were doing when they executed the impugned documents under they had been conducting several cases and in those cases, they were being assisted by Haneefa Rowthar and Sambanda Thevar. Interestingly, Haneefa Rowthar andSambanda Thevar are the attestors to the two documents. It is spoken to by the witnesses only on the side of the first respondent that the drafts of the documents were read out to the appellants in presence of the Haneefa Rowthar and Sambanda Thevar and accepting the contents of the documents the first plaintiff affixed her thumb impression and second plaintiff put her signature. It is spoken to by the witnesses only on the side of the first respondent that the drafts of the documents were read out to the appellants in presence of the Haneefa Rowthar and Sambanda Thevar and accepting the contents of the documents the first plaintiff affixed her thumb impression and second plaintiff put her signature. The courts below have also observed that the plaintiffs knew about the difference between a sale and a mortgage. Absolutely, no motive had been attributed to the witnesses on the side of the first defendant and factually it had been found by the courts below that the documents ere signed, read out and executed by the plaintiffs in the presence of Haneefa Rowthar and Sambanda Thevar without compulsion and with full knowledge of contents. The second plaintiff as PW-1 has also admitted that the plaintiffs were being assisted by Sambanda Thevar and Haneefa Rowthar in all affairs and they trusted those people and they would not depose against the plaintiffs. Vital admissions were elicited from PW-1 about how Sambanda Thevar was closed to her husband and there was a court case between her husband and the first respondent and it was settled with the assitance of Haneefa Rowthar and Sambanda Thevar, that there was some court case between her and one Chinnathambi and in that case Haneefa and Sambanda Thevar were conducting the proceedings on her behalf and any difficult problem relating to her would be solved by her through the good offices of Haneefa and Sambanda Thevar. The Courts below have also observed that the appellants had not chosen to examine Haneefa and Sambanda Thevar. Particularly, when they were aware of the fact that Sambanda Thevar and Haneefa were stated to have attested the impugned documents. (v) In 2000(2) CTC 184 (K.Andi Reddiar v. Ovu Ammal and 5 others), it is held as follows: "26. In the present case, the execution of the will is admitted as well as the testamentary capacity and the keeral mark as well as the LTI of the deceased has been supported by sufficient evidence and thus the onus has been discharged. When the defendants allege undue influence or fraud, or coercion, the onus is on them to prove the same. As already pointed out, the defendants filed a written statement whereunder it was vaguely pleaded and the relevant portion of the written statement reads as follows: "4. When the defendants allege undue influence or fraud, or coercion, the onus is on them to prove the same. As already pointed out, the defendants filed a written statement whereunder it was vaguely pleaded and the relevant portion of the written statement reads as follows: "4. The Nagu Reddiar never intended to execute any will. The will referred to in the plaint dated 26. 1964 was brought about by undue influence and coercion exercised by the plaintiff and the first defendant on the fickle and weak minded Nagu Reddiar who was not in a sound and disposing state of mind. 5. The said will was brought about by the evil design of the plaintiff with the sole object of putting the properties out of the reach of defendants 2 and 3 who are the daughters of the said Nagu Reddiar by his first wife." 27. The defendants have not proved their plea that the will was brought about by undue influence and coercion exercised by the plaintiff as rightly pointed out by the first appellate court had caste the onus on the plaintiff to prove the negative namely that there was no undue influence or coercion on the deceased. In fact, DW-2 identifying the witness had deposed that the plaintiff was not at all present anywhere near and his admission is fatal. There is no iota of evidence to hold that the plaintiff had exercised undue influence or coercion on the deceased testator. As already pointed out the sound disposing state of mind of the testator was proved and admitted as well. The execution of the will has been admitted by the first defendant DW-1. 28. In the light of the decision of the Apex Court in Shashi Kumar v. Subodh Kumar, 1964 SC 529 this Court holds the finding of the first appellate court can not be sustained and it is a perverse finding as the first appellant court proceeded on the assumption that it is for the plaintiff to prove that there was no undue influence or coercion. 29. 29. In support of his contention Mr.Velusamy, learned counsel for the appellant relied upon the later decision in Susama Bala v.Anath Nath AIR 1976 cal 377 D.B. where after referring to the earlier case laws reported in H.Venkatachala Iyengar v.B.N.Thimmajamma AIR 1959 SC 443 Rani Poornima Devi v. khagendra narayan Dev AIR 1962 SC 567 Sasikumar v.Subodh Kumar AIR 1964 SC 529 AIR 1968 SC 1332 and AIR 1972 cal 210 the Calcutta High Court held thus- "8. In order to buttress up their argument the learned advocates had drawn our attention to a number of decisions with a vie to guide the court in the matter of appraisement of evidence regarding the execution of the will and the alleged suspicious circumstances surrounding such execution. The first case that has been brought to our notice to provide us unnecesary guidance is reported in H.Venkatachala Iyengar v. B.N.Thimmajamma, AIR 1959 SC 443 . In this case, speaking for the Bench B..B.Gajendragadkar, J. (as he then was) elaborately discussed the relevant provisions of the Indian Evidence Act as to the manner of proving the will, as a document. He also discussed the onus of removing the suspicious circumstances surrounding the execution of the will, and the fact that if the propounders themselves take a prominent part in the execution of the will and take benefit under it that itself would constitute a suspicious circumstance. Paragraph 120. 21 and 22 of the judgment are very much instructive on these points. The views expressed therein (if we may respectful say so, a legacy from the past)have been to I lowed in cases after cases to establish this, our attention has been drawn by the learned advocates to cases reported in Rani Poornima Devi v. khagendra narayan Dev AIR 1962 SC 567 Sasikumar Banerjee v.Subodh Kumar Banerjee AIR 1964 SC 529 ( since deceased and after him his legal representatives). In the above two cases, Wanchoo J. speaking for the Bench, has reiterated the views which had already been formulated in H.Venkatachala Iyenger v. B.N.Thimmajamma AIR 1959 SC 443 . From these decisions, we find that the initial onus of proving the execution of the will rests upon the propounder and the will has to be proved like any other document under the provisions of the Indian Evidence Act besides proving the attestation of the execution by the witnesses. From these decisions, we find that the initial onus of proving the execution of the will rests upon the propounder and the will has to be proved like any other document under the provisions of the Indian Evidence Act besides proving the attestation of the execution by the witnesses. In the event, there are suscipious circumstances surrounding the execution of the will, we find, the onus of explaining the circumstances which look suspicious and removing the suspicion from the mind of the court rests squarely upon the propounder. If any fraud, undue influence and coercion is alleged by the caveator then it is for the caveator to prove the allegation of fraud, undue influence and coercion. If it is shown that the prepounder has taken a promiment part in the execution of the will under which he has been conferred substantial benefit, that in itself is generally treated as as suspicious circumstance surrounding the execution of the will and the preopunder is required to remove the suspcision by clear and satisfactory evidence. (vide also Garantia Thataiah v. Thotakura,AIR 1968 SC 1322). We also find from the decisions referred to above that in the matter of appreciation of evidence for deciding material questions of fact arising from the application for probate or in actions on will, hard, fast and inflexible rules can not be laid down and proof depends upon facts and circumstances of each case. Therefore, bearing in mind all these essentials, albeit elementary considerations, we shall now proceed to examine the contentions raised by the rival sides before us." The learned counsel is well founded in his submission. 31. As already pointed out the approach of the first appellate court is legally erroneous and contrary to the law laid down by the apex court. As already pointed out, the execution of the will had been admitted by DW-1 and DW-2 apart from DW-2 the attestor proving the execution of the will by the deceased Nagu Reddiar and attestation by the two attesting witnesses. The plea of undue influence or coercion, had not been established by the defendants and they have miserably failed to establish the same. The onus is on the defendants to prove that there was undue influence or the testator was coerced as pleader is paragraph 4 and 5 of the written statement. 32. The plea of undue influence or coercion, had not been established by the defendants and they have miserably failed to establish the same. The onus is on the defendants to prove that there was undue influence or the testator was coerced as pleader is paragraph 4 and 5 of the written statement. 32. In the light of the decisions of the Supreme Court, this court holds that the conclusion of the first appellate court can not be sustained in law as it is contrary to the decisions of the Apex Court and this court while setting aside the finding of the appellate court as vitiated and perverse, confirms the findings of the trial court that the will was executed by the deceased testator in a sound and disposing state of mind and it is true and last will of testator Nagu Reddiar." (vi) In 2001(1) MLJ 307 (InumBeevi v. K.S. Syed Ahamed Kabir (died) and 15 others), it is held as follows: "23. The respondent apart from pleading the same has not proved it, on the other hand had given evidence that the donor was not in full possession of his mental faculties, which contradicts the plea of undue influence. The learned counsel for the appellant relied on Ladli Prashad Jaiswal v. The Karnal Distiller Co. Ltd. Karnal, MANU/SC/0061/1962, in which the two conditions which are necessary to establish undue influence were set out. .(a) that the party because of undue influence was in a position to dominate the will of the other and .(b) that the said party obtained an unfair advantage by using that possession. 24. If these two conditions are not fulfilled the presumption of undue influence will not arise and burden will not shift the respondent had failed to establish undue influence either by admissions or by other evidence. The other decision cited by the learned counsel for the appellant to support his case that plea of undue influence cannot be accepted was the decision reported in Bishundeo Narain & another v. Seogeni Rai & others, MANU/SC/0059/1951, where it was held that the case has to be decided on the basis of the particulars of undue influence given in the pleading, there can be no departure from that. The respondent has not established his case of undue influence." (vii) In 2005(8) SCC 67 (Pentakota Satyanarayana and others v. Pentakota Seetharatnam and others), it is held as follows: "21. ... The statement made by him in the written statement is one of the most important factors which authenticates the genuineness of the will. No evidence has been let in by the respondents to show the exercise of any fraud or undue influence at the time of execution of the will. No evidence was adduced to show that the testator was not in sound state of mind and in fact, the finding is that he was of sound mind. ... 22. ... This section lays down that if the deed sought to be proved is a document required by law to be attested and if there be an attesting wintess alive and subject to process of the court and capable of giving evidence, he must be called to prove execution. Excution consists in signing a document written out, read over and understood and to go through the formalities necessary for the validity of the legal act. ... 23 A perusal of Ex.B.9 (in original) would show that the signature of the registering officer and of the identifying witnesses affixed to the registration endorsement were, in our opinion, sufficient attestation within the meaning of the Act. The endorsement by the Sub-Registrar that the executant had acknowleged before him execution deed also amount to attestation. In the original document, the executants signature was taken by the Sub-Registrar. The signature and thumb impression of the identifying witnesses were also taken in the document. After all these, the Sub Registrar signed the deed. Unlike other documents the will speaks from the death of the testator, and so, when it is prepounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document prepounded is proved to be the last will and testament of the departed testator. (viii) In 2009 (3) SCC 687 (Bharpur Singh and ors. vs. Shamsher Singh), it is held as follows: "11. The legal principles in regard to proof of a will are no longer res integra. (viii) In 2009 (3) SCC 687 (Bharpur Singh and ors. vs. Shamsher Singh), it is held as follows: "11. The legal principles in regard to proof of a will are no longer res integra. A will must be proved having regard to the provisions contained in clause (c)of section 63 of the Indian Succession Act, 1925 and section 68 of the Indian Evidence Act, 1872, in terms whereof the propounder of a will must prove its execution by examining one or more attesting witnesses. Where, however, the validity of the will is challenged on the ground of fraud, coercion, or undue influence, the burden of proof will be on the caveator. In a case, where the will is surrounded by suspicious circumstances it would not be treated as the last testamentary disposition of the testator. 15. This court in Anil Kak v. Kumari Sharada Raje and Ors. MANU/SC/7520/2008 opined that court is required to adopt a rational approach and is furthermore required to satisfy its conscience as existence of suspicious circumstances play an important role, holding: 52. whereas, execution of any other document can be proved by proving the writings of the document or the contents of it as also the execution thereof, in the event there exists suspicious circumstances the party seeking to obtain probate and/or letters of administration with a copy of the will annexed must also adduced evidence to the satisfaction of the court before it can be accepted as genuine. 53. As an order granting probate is a judgment in rem, the court must also satisfy its conscience before it passes an order 54. It may be true that deprivation of a due share by (sic to )the natural heir by itself may not be held to be a suspicious circumstance but it is one of the factors which is taken into consideration by the court before granting probate or will. 55. Unlike other documents, even animus attestandi is necessary ingredient for proving the attestation. Unfortunately, the first appellate court as also the High Court did not advert to these aspects of the matter. 16. We may notice that in Jaswant kaur v. Amrit kaur and ors. MANU/SC/0530/1976, this court pointed out that when a will is allegedly shrouded in suspicion, its proof ceases to be a simple in between the plaintiff and defendant. Unfortunately, the first appellate court as also the High Court did not advert to these aspects of the matter. 16. We may notice that in Jaswant kaur v. Amrit kaur and ors. MANU/SC/0530/1976, this court pointed out that when a will is allegedly shrouded in suspicion, its proof ceases to be a simple in between the plaintiff and defendant. An adversarial proceeding in such cases becomes a matter of courts conscience and propounder of will has to remove all suspicious circumstances to satisfy that will was duly executed by testator wherefor cogent and convincing explanation of suspicious circumstances shrouding the making of the will must be offered. Learned counsel for the appellant also contended that the respondent/plaintiff in the amended plaint have admitted the execution of the Ex.B2 document." 18. Learned counsel for the appellant relied on the following decision with regard to the contention that scribe can be treated as attesting witness. (i) In AIR 1995 MAD 415 (Kamakshi Ammal v. Rajalakshmi and others), it is held as follows: "15. We shall 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, interalia, provides that the registered gift document by the donor must be attested by the 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, which shall not be used as evidence until one attesting witness atleast 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 document, not being a will, which has been registered in accordance with the provision of Indian Registration Act "unless its execution by the person by whom it purports who has been executed, its 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. 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, it is to be executed. In other words, the word "execution" in S.70 designates the whole operation including signing by the executant and the attestation by the witness. (Vide Davood Rowther v. Ramanathan Chettiar MANU/TN/0331/1937. 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 29. 1979, which seeks to cancel Exs.A.4 and A.11 dated 29. 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 29. 1979 is the communication sent by 7th defendant to the concerned Municipality, informing about he above said cancellation of the settlement earlier in 1973. But, in the light of AIR 1938 MAD 43 (supra) it cannot be said that merely because of the above said 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. 17. In the above back ground, before seeing the legal position let us see the relevant oral evidence recorded. D.W.1 is the plaintiff, aged 22 at the time when the evidence was given (211. 1982). Regarding the above said attestation in 1973 her evidence may not be quiet relevant. Then the evidence of P.W.2 is also not relevant since he was examined only in relation to the aforesaid will. Then P.w.3 was also examined only to prove the above said Ex.A.12. So regarding the above said attestation question, we have only to see mainly the evidence of P.Ws. 4 and 5, a document writer says in chief examination, with reference to Ex. Then P.w.3 was also examined only to prove the above said Ex.A.12. So regarding the above said attestation question, we have only to see mainly the evidence of P.Ws. 4 and 5, a document writer says in chief examination, with reference to Ex. A.3 that he and other witnesses (vernacular words omitted) saw the 7th defendant singing Ex.A.3 and that they saw himself (P.W.4) and other witnesses signing the said document. Likewise, he deposes with reference to Ex. 2.A.4 also. Learned counsel for the appellant submits that because the expression used by him in the above said deposition is (vernacular words omitted) the term (vernacular words omitted) referring to P.W.4 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 P.W.3, viz., (vernacular words omitted) it cannot be said that P.W.4 had not attested the signature of the 7th defendant in the above said settlement deeds. Specifically, he has deposed that he has also seen 7th defendant signing a said settlement deeds and on the other particular aspect, it must be noted that there is absolutely no cross examination. The deposition recorded in cross examination is as follows: (vernacular words omitted) Therefore, we hold that P.W.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 treats 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 the attest (vide MANU/TN/0492/1983 (supra) and the above referred to other decisions cited by the learned counsel for the 1st respondent). In fact in MANU/TN/0492/1983, 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, P.W.4 has deposed that he has seen 7th defendant signing Exs. A.3 and A.4. Further, Ex.A.4 also shows that P.W.4 has written and attested the said document. In the present case, P.W.4 has deposed that he has seen 7th defendant signing Exs. A.3 and A.4. Further, Ex.A.4 also shows that P.W.4 has written and attested the said document. In MANU/OR/0008/1983 (supra) also, it has been held that when a person puts the signature on the document both as scribe and an attesting witness, the inference is that he function 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 upona document and at the same time describes himself as writer thereof, the interference is that he signs as the writer and nothing else but as a matter of fact it can be shown that he singed not only as a writer but also as witness of the fact that he saw the document executed. In the present case, in so far as Ex. A4 is concerned, there is a statement at the end of the document P.W.4 wrote as well as attested the document. Though, in Ex.A3 such a statement is not there P.W.4 has deposed that he has seen the executant signing the document and on that aspect there is no cross examination as mentioned above." 19. With regard to the contention of non cross examination of witness on a relevant point will amount to acceptance of the said point, learned counsel for the appellant relied on a judgment reported in 1996(1) MLJ 10 SN ( D.Pattammal v. K.Kalyanasundaram) 20. Countering the submissions made by the learned counsel for the appellant, Mr.S.Parthasarathy, learned senior counsel appearing for the respondents submitted that the burden is only on the appellant to prove the execution of the document; that this court in S.A.No.1291 of 1996, very clearly remanded the matter to the trial court only for the purpose of proving Ex.B2 document; that the burden is on the appellant/2nd defendant to prove the validity of Ex.B2; that in the amended plaint, they specifically denied the execution of Ex.B2 by Goopali Muniyama; that the evidence of D.W.2 and D.W.3 alone may not be sufficient to prove the proper execution of Ex.B2; that the attestors are very much available at the time of trial, hence, non examination of the attestors by the appellant/2nd defendant will amount to non proving of Ex.B2 document as per section 68 of the Indian Evidence Act. 21. 21. In support of the said contentions learned senior counsel relied on a judgment reported in 1969 (1) SCC 573 (A.L.Abdul Jabbar Sahib v. M.V.Venkata Sasri & Sons and others), which reads as follows: "7. Section 3 of the Transfer of Property act gives the definition of the word "attested" and is in these words: " Attested in relation to an instrument means and shall be deemed to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other persons in the instrument in the presence and by the direction of the executant, or has received from the tant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time and no particular form of attestation shall be necessary. It is to be noticed that the word "attested", the thing to be defined, occurs as part of the definition itself. To attest is to bear witness to a fact. Briefly put, the essential conditions of a valid attestation under section 3 are: (I) two or more witnesses have b seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestandi, hat is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness. 8."In every case the Court must be satisfied that the names were written animo attstandi" see Jarman on Wills, 8th ed., p. 137. Evidence is admissible to show whether the witness had the intention to attest. 8."In every case the Court must be satisfied that the names were written animo attstandi" see Jarman on Wills, 8th ed., p. 137. Evidence is admissible to show whether the witness had the intention to attest. "The attesting witness must subscribe with the intention that the subscription made should be complete attestation of the will, and evidence is admissible to show whether such was the intention or not," see Theobald on Wills, 12th ed., p.129. In Girja Datt v. Gangotri, the court held that the two persons who had identified the testator at the time of the registration of the will and had appended their signatures at the foot of the endorsement by the sub-Registrar, were not attesting witnesses as their signatures were not put "anmo attestandi". In person who had put his name under the word "scribe" was not an attesting witness as he had put his signature only for the purpose of authenticating that he was a "scribe". In Shiam Sunder Singh v. Jagannath Singh, the Privy Council held that the legatees who had put their signatures on the will in token of their consent to its execution were not attesting witness and were not disqualified form taking as legatees. 9.The Indian Registration Act, 1908, lays down a detailed procedure for registration of documents. The registering officer is under a duty to enquire whether the document is executed by the person by whom it purports to have been executed and to satisfy himself as to the identity of the executant, [Section 34(3)]. He can register the document if he is satisfied about the identity of the person executing the document and if that person admits execution [Section 35(1)]. The signature of the executant and of every person examined with reference to the document are endorsed on the document (section 8). The registering officer is required to affix the date and his signature to the endorsements (section 59). Prima facie, the registering officer puts his signature on the document in discharge of his statutory duty under section 59 and not for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgment of his signature. 10.The evidence does not show that the registering officer D.W.Kittoo put his signature on the document with the intention of attesting it. Nor is it proved that he signed the document in the presence of the executant. 10.The evidence does not show that the registering officer D.W.Kittoo put his signature on the document with the intention of attesting it. Nor is it proved that he signed the document in the presence of the executant. In these circumstance, he cannot be regarded as an attesting witness, see Sunder Bahadur singh v. Thakur Behari singh. Likewise the identifying witnesses Sankaranarayana and Kaki Abdul Aziz put their signatures on the document to authenticate the fact that they had identified the executant. It is not shown that they put their signatures for the purpose of attesting the document. They cannot, therefore, be regarded as attesting witnesses." 22. Learned senior counsel also relied on a judgment reported in 2001 (7) SCC 503 (N.Kamalam (dead) and another v. Ayyasamy and another), which reads as follows: "3. Turning on to the former expression onus probandi, i is now a fairly well-settled principle that the same lies in every case upon the party propounding the will and ;may satisfy the courts conscience that the instrument as propounded is the last will of a free and capable testator, meaning thereby obviously, that the testator at the time when he subscribed his signature on to the will had a sound and disposing state of mind and memory and ordinarily, however, he onus is discharged as regards the due execution of the will if the propounder leads evidence to show that the will bears the signature and mark of the testator and that the will is duly attested This attestation however, shall have to be in accordance with section 68 of the evidence act which requires that if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has bee called for the purpose of proving its execution and the same is so however, in the event of there being an attesting witness alive and capable of giving the evidence. The law is also equally well settled that in the event of there being circumstances surrounding the execution of he will shrouded in suspicion, it is the duty paramount on the part of the propounder to remove that suspicion by leading satisfactory evidence. 25. The requirement of attestation presently in the country is statutory in nature, as noticed hereinbefore, and cannot as such be done away with, under any circumstances. 25. The requirement of attestation presently in the country is statutory in nature, as noticed hereinbefore, and cannot as such be done away with, under any circumstances. While it is true that in a testamentary disposition, the intent of the attestor shall have to be assessed in its proper perspective but that does not however mean and imply noncompliance with a statutory requirement. The intention of the attestor and its paramount importance cannot thwart the statutory requirement. No doubt the scribe has subscribed his signature but a scribe in accordance with common English parlance means and implies the person who writes the document. Significantly, however, in England he Kings Secretary is popularly known as Scribaregis. Be that as it may, in common parlance an attribute of scribe as a more writer as noted above, does not stretch the amtter further. In the contextual facs, while the writer did, in fact, subscribe his signature but he same does not underrate the statutory requirement of attestation as more fully described hereinbefore. True it is, the strenuous submissions have been made in support of the appeal that "attesting witnesses" have no other role to play but to subscribe their signatures in order to prove the genuineness of the will and that inf ct, when the scribe signs the will, the same can be read as attestation. Needless o record, however, that the scribe Arunachalam was examined and it is on this score the learned advocate contended that the evidence of an attestor thus can be said to be on record so as to make the document namely the "will" in the instant case thus otherwise in accordance with law. 26. The effect of subscribing a signature on tha part of the scribe cannot in our view be identified tot be of the same stats as that of the attesting witnesses. The signature of the attesting witness as noticed above on a document, requiring attestation (admittedly in the case of a will the same is required), is a requirement of the statute, thus cannot be equated with that of the scribe. The signature of the attesting witness as noticed above on a document, requiring attestation (admittedly in the case of a will the same is required), is a requirement of the statute, thus cannot be equated with that of the scribe. The Full Bench judgment of the Madras High Court in H.Venkata Sastri and Sons v. Rahilna Bi wherein, Ramachandra Iyer, J, speaking for the Full Bench in his inimitable style and upon reliance on Lord Campbells observation in Burdett v. Spilsbury has the following to state pertaining to the meaning to be attributed to the word "attestation": (AIR pp.113-14, paras 3-4) "(3) ... The definition of the term attested which is almost identical with that contained in section 63(c) of the Indian Succession act, has been the result of an amendment introduced by act 27 of 1926. Prior to that amendment it was held by this Court that the word attested was used only in the narrow sense of the attesting witness being present at the time of execution. IN Shamu Pattr v. Abdul Kadir Ravuthan the Privy council accepted the view of this court that attestation of of mortgage deed must be made by the witnesses signing his name after seeing the actual execution of the deed and that a mere acknowledgment of his signature by he executant to the attesting witness would not be sufficient. The amending act 27 of 1926 modified the definition of the term in the transfer of Property act so as to make a person who merely obtains an acknowledgment of execution and affixed his signature to the document as a witness, an attestor, It will be noticed that although Section 3 purports to define the word attested it has not really done so. The effect of the definition is only to give an extended meaning of the term for the purpose fo the act; the word attest is used as a part of the definition itself. IT is, therefore, necessary first to ascertain the meaning of the word attest independent of the statute and adopt it in the light of the extended or qualified meaning given herein. The word attest mans according to the Shorter Oxford Dictionary to bear witness to, to affirm the truth of genuineness fo, testify, certify. In Burdett v. Spilsbury Lrod Cambell observed at p.417: What is the meaning of an attesting witness to a deed? The word attest mans according to the Shorter Oxford Dictionary to bear witness to, to affirm the truth of genuineness fo, testify, certify. In Burdett v. Spilsbury Lrod Cambell observed at p.417: What is the meaning of an attesting witness to a deed? Why, it is a witness who has seen the deed executed, and who signs it as a witness." The Lord Chancellor stated, the arty who sees the will executed is in fact a witness to it, if he subscribes as a witness, he is then an attesting witness. The ordinary meaning of the word would show that an attesting witness should be present and see the document signed by the executant, as he could then alone vouch for the execution of the document. In other words, the attesting witness must see the execution and sign. Further, attestation being an act of a witness, i.e. To testify to the genuineness of the signature of the executant, it is obvious that he should have the necessary intention to vouch it. The ordinary meaning of the word is thus in conformity with the definition thereof under the Transfer of Property act before it was amended by act 27 of 1926. Before that amendment, admission of execution b y the executant to a witness who thereupon puts his signature cannot make him an attestor properly so called, as he not being present at the execution cannot bear witness to it; a mere mental satisfaction that the deed was executed cannot mean that he bore witness to execution. (4) After the amendment of section 3 by Act 27 of 1926, a person can be said to have validly attested an instrument, if he has actually seen the executant sign, and in a case where he had not personally witnessed execution, he has received from the executant a personal acknowledgment of his signature, mark etc. (4) After the amendment of section 3 by Act 27 of 1926, a person can be said to have validly attested an instrument, if he has actually seen the executant sign, and in a case where he had not personally witnessed execution, he has received from the executant a personal acknowledgment of his signature, mark etc. Thus of the two significant requirements of the term attest, namely (1) that the attestor should witness the execution which implies his presence, then, and (2) he should certify or vouch for the execution by subscribing his name as a witness, which implies a consciousness and an intention to attest, the amending Act modified only the first; the result is that a person can be an attesting witness, eve if he had not witnessed the actual execution, by merely receiving personal acknowledgment from the executant of having executed the document and putting his signature. But the amendment did not affect in any way the necessity for the latter requirement, namely, certifying execution which implies that the attesting witness had the animus to attest." 23. On a careful consideration of the materials available on record and the submissions made by the learned counsel for the appellant and the learned senior counsel appearing for the respondents, it could be seen that issue involved in the suit is with regard to Ex.B2 gift deed dated 20.1.1981. On a careful reading of the amended plaint, it could be seen that the respondents/plaintiffs in para 4(a), in more than one place, has specifically denied the execution and attestation of Ex.B2 document. Learned counsel for the appellant submitted that the respondents/plaintiffs had admitted the execution of the document in 4(a) of the amended plaint. A complete reading of the plaint will only show that the respondents/plaintiffs have denied the execution of the document. The appellants contention is that once the respondents/plaintiffs admitted the execution of the document and pleaded undue influence, the burden is on the respondents/plaintiffs to prove the plea of undue influence. As stated earlier, a reading of para 4(a) of the plaint will only show that the respondents/plaintiffs had denied the execution of Ex.B2 document. Once the respondents/plaintiffs denied the execution of the document, the burden is on the appellant/2nd defendant to prove the execution and attestation of Ex.B2. As stated earlier, a reading of para 4(a) of the plaint will only show that the respondents/plaintiffs had denied the execution of Ex.B2 document. Once the respondents/plaintiffs denied the execution of the document, the burden is on the appellant/2nd defendant to prove the execution and attestation of Ex.B2. Further, if the respondents/plaintiffs had admitted the execution of B2 document, in that case, the respondents/plaintiffs would not have filed the suit for partition. Only because he denied the execution of Ex.B2 document, he filed the suit for partition. 24. Section 123 of the Transfer of Property Act says that in the case of gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by atleast two witnesses. 25. Section 68 of the Indian Evidence Act says that if a document is required by law to be attested, it shall not be used as evidence until atleast one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence. The appellant/2nd defendant did not examine the attestors of Ex.B2. The scribe of Ex.B2 was examined as D.W.2 and D.W.3 is the identifying witness. According to D.W.1, the second defendant, two witnesses namely, Ramaiah and Anjappa signed the Ex.B2 document as attestors. The said Ramiah is the father-in-law of the appellant/2nd defendant. D.W.1 in his cross examination also admitted that his father-in-law Ramaiah and himself are in good terms. Further, he also deposed that he does not know whether the other attestor Anjappa is residing at Hosur. Therefore, even according to the appellant/2nd defendant atleast one attestor, namely Ramaiah was available at the time of trial. But, the appellant chose not to examine the said attestor. Therefore, it cannot be stated that attestors were not available at the time of trial to prove Ex.B2 document. Instead of examining the attestors, the appellant had examined the scribe and identifying witness. 26. As decided in the above referred judgments, the evidence of D.W.2 and D.W.3 could not disclose statutory requirements. Therefore, it cannot be stated that attestors were not available at the time of trial to prove Ex.B2 document. Instead of examining the attestors, the appellant had examined the scribe and identifying witness. 26. As decided in the above referred judgments, the evidence of D.W.2 and D.W.3 could not disclose statutory requirements. There are two significant requirements of term "attest" namely, that the attestor should witness the execution which implies his presence then and secondly, that he should certify or vouch for the execution by subscribing his name as a witness which implies a consciousness and an intention to attest. Therefore, when the attestors are available for examination, by examining the scribe and identifying witness, the appellant/2nd defendant cannot prove Ex.B2 document. In case the atttestors are not alive, then the appellant/2nd defendant could have proved the will by examining the scribe and identifying witness. Here, it is not a case so. Therefore, only adverse inference can be drawn against appellant/2nd defendant for the non-examination of the attestor, who was very much available at the time of trial. 27. Further, this court in S.A.No.1291/1996 found that Ex.B2 document is a gift deed and this court remanded the matter to the trial court to give an opportunity to the parties to prove Ex.B2 in accordance with law. Since this court on the earlier occasion found that Ex.B2 is a gift deed, the document has to be executed and attested under section 68 of the Indian evidence Act. As already found the appellant/2nd defendant failed to prove Ex.B2 document by examining the attesting witnesses. 28. Therefore, since the appellant/2nd defendant failed to prove Ex.B2 document, there is no necessity for going into the plea of undue influence. So far as item No.4 of the suit property is concerned, Goopali Muniamma herself sold the property to the 3rd defendants husband Ramaiah. But the said document was not marked before the trial court. However, the respondents/plaintiffs have admitted the sale in favour of the said Ramaiah. Therefore, the courts below rightly refused to grant preliminary decree i n respect of item 4 of the suit property. 29. With regard to the construction of shops and house in S.No.121A/1A, the appellant/2nd defendant failed to prove the same by any acceptable evidence. The courts below rejected the contention of the appellant/2nd defendant. 30. The trial court passed preliminary decree in respect of item Nos. 29. With regard to the construction of shops and house in S.No.121A/1A, the appellant/2nd defendant failed to prove the same by any acceptable evidence. The courts below rejected the contention of the appellant/2nd defendant. 30. The trial court passed preliminary decree in respect of item Nos. 1 to 3 and 5 of the suit properties. The trial court refused to grant preliminary decree in respect of item No.4. The lower appellant court also confirmed the judgment decree of the trial court. 31. Therefore, on a careful consideration of the materials available on record and the submissions made by the learned counsel for the appellant and the respondents and also by applying the principles laid down in the judgments referred above, I am of the view that the concurrent findings of the courts below does not warrant any interference. I find no ground much less substantial question of law to interfere with the findings of the courts below. The above second appeal is liable to be dismissed. Accordingly, the Second Appeal is dismissed. No costs.