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2014 DIGILAW 1735 (MAD)

R. Vatsala v. R. Krishna Kumar

2014-06-26

G.M.AKBAR ALI

body2014
JUDGMENT 1. Suit for partition of the suit property by Metes and Bounds and hand over separate possession of the plaintiffs 1/6th share each in the Suit Schedule property; appoint an Advocate Commissioner to divide the Suit Schedule Property having metes and bounds and put the plaintiffs in possession of their respective 1/6th share in the Suit property; iii) directing the Advocate Commissioner to be appointed by this Court to ascertain the mesne Profits from the Suit Property and direct the defendants to pay the plaintiffs their respective 1/6th share until the plaintiffs 1/6th shares are delivered to them ; declare that the Partition Deed under Document No.867/2000 alleged to have been executed on 27.11.2000 to be null and void and declare that the Settlement Deed under Document No.455/2010 dated 10.2.2010 executed by the 1st defendant in favour of the 2nd defendant is null and void. 2. The suit property is a land and building at New No.22, Old No.13, Manickeswari Road, Kilpauk, Chennai, measuring 7200 sq.ft in re-survey number 3130 of Purasawalkam Village. This property originally belonged to one Mr.Ramadas, the husband of the first plaintiff and the father of the plaintiffs 2 to 5 and the 1st defendant. He purchased the property under a sale deed dated 10.7.1955 and was in peaceful possession and enjoyment till his death. He died intestate on 6.8.1976 leaving behind the plaintiffs and the 1st defendant as his legal heirs. The plaintiffs and the 1st defendant are entitled for 1/6th share in the property. 3. The first plaintiff was residing in the property along with the first defendant and other sharers were married and settled at different places, but used to visit and stay in the family house along with the 1st plaintiff. The 1st defendant was entrusted with the documents of the property with the belief that he will maintain the family house as he is the eldest and the only son of the family. However, he has not administered the property properly and evaded any meeting with the family. Therefore, a legal notice dated 10.3.2010 was issued calling upon the 1st defendant for the partition of the suit property. However, the 1st defendant alleged a family arrangement and execution of a partition deed dated 27.11.2000 and thereby claiming exclusive right over the property. However, he has not administered the property properly and evaded any meeting with the family. Therefore, a legal notice dated 10.3.2010 was issued calling upon the 1st defendant for the partition of the suit property. However, the 1st defendant alleged a family arrangement and execution of a partition deed dated 27.11.2000 and thereby claiming exclusive right over the property. He has also created a settlement deed in favour of the 2nd defendant to deprive the rights of the plaintiffs. Therefore, the suit is filed for a partition and also to set aside the partition deed dated 27.11.2000 and settlement deed dated 10.2.2010. 4. The defendants 1 and 2 filed a written statement interalia stating that the plaintiffs have relinquished their right and interest in the property way back in 1981 in a oral partition in favour of the 1st defendant and the present suit is filed after three decades and therefore, barred by limitation. The daughters have not inherited the co-parcenery property. The plaintiffs have ratified the oral partition by way of family arrangement in writing on 18.8.1995 and the plaintiffs are estopped from questioning the validity of the family arrangement and the partition deed dated 27.11.2000. Therefore, the suit is not maintainable. 5. Based on the above pleadings, this court framed the following issues: 1. Whether the plaintiffs are entitled for partition and separate possession of 1/6th share each in the suit property? 2. Whether the plaintiffs are entitled to Mesne profits of 1/6th share each till delivery of possession of their respective shares in the suit property? 3. Whether the partition deed dated 27.11.2000 is null and void and not binding upon the plaintiffs? 4. Whether the plaintiffs are not entitled to a declaration that the settlement deed dated 10.02.2010 executed by the 1st defendant in favour of the 2nd defendant is null and void and not binding upon the plaintiffs? 5. Whether the defendants are not in a fiduciary position and in the position of Trust and confidence and vice-versa the plaintiffs and are therefore barred in law from claiming any ouster to the suit property? 6. Whether the suit is barred by limitation as contended by the defendants? 7. Whether the suit is not maintainable for not having sought the relief of setting aside the release deed dated 18.08.1995 when the said release deed is void ab-initio? 8. 6. Whether the suit is barred by limitation as contended by the defendants? 7. Whether the suit is not maintainable for not having sought the relief of setting aside the release deed dated 18.08.1995 when the said release deed is void ab-initio? 8. Whether the suit property is a joint family property of Late Mr.Ramdass and whether the provision of Hindu Succession Act applies to the case? 6. To prove the case of the plaintiffs, 3 witnesses were examined and 7 exhibits were filed. The 1st defendant examined himself as D.W.1 and has produced 9 exhibits. 7. Since it is a suit for partition, the admitted and the disputed facts are to be considered at the first instance. The admitted facts are as follows: 8. One Ramados was the husband of the 1st plaintiff and father of the plaintiffs 2 to 5 and the 1st defendant. He had acquired the suit property under a sale deed dated 10.7.1955 and was in peaceful possession and enjoyment till his death. He died on 6.8.1976 leaving behind the plaintiffs and the 1st defendant as legal heirs. 9. The first defendant being the eldest son of the family was residing in the suit property and the 1st plaintiff being the aged mother was also residing in the property. The plaintiffs 2 to 5 are the daughters and the 1st defendant is the only son. The plaintiffs 2 to 5 who are the daughters along with the 1st plaintiff, who is the mother, have issued the legal notice to the 1st defendant calling upon him to divide the suit property by metes and bounds and allot 1/6th share. However, the 1st defendant denied such share alleging an oral partition as early as 1981 which was reduced into writing on 18.8.1995 and again fortified by partition deed dated 27.11.2000 and execution of power of attorney dated 29.4.2000. 10. The 1st defendant also claimed that the suit property was purchased by the father from the income of the ancestral properties and thereby it has become a co-parcenery property to be shared only between the father and the son and therefore, neither the wife nor the daughters have any right in the ancestral property. Issue No.8 reads as follows Whether the suit property is a joint family property of Late Mr.Ramdass and whether the provision of Hindu Succession Act applies to the case? 11. Issue No.8 reads as follows Whether the suit property is a joint family property of Late Mr.Ramdass and whether the provision of Hindu Succession Act applies to the case? 11. Mr.B. Dinesh Kumar, the learned counsel for the plaintiffs in his oral and written arguments would submit that this issue will not arise at all as there is an admission by the 1st defendant stating that the suit property is the absolute property of the father and he died intestate leaving behind the mother and the sisters and himself to succeed to his property. 12. On the other hand, Mr.V. Balasubramanian, learned counsel for the defendant would submit that though the property was purchased in the name of the father, the sale consideration was paid by the grandfather viz., one K.S. Naidu and the recitals in Ex.P.1 would reveal that such payment was made and therefore, the property is not the exclusive property of Ramadas but purchased from the income of ancestral property. 13. The learned counsel for the 1st defendant relied on decision reported in 1945 1 MLJ 149 (Velayudhan Chettiar vs Commissioner of Income Tax) wherein, a Division Bench of this Court has held that“where a Hindu father gives his self acquired property to his son, the latter takes it as ancestral property unless it is apparent that the father intended to gift to be merely personal to his son”. 14. It is well settled that a person who alleges that the property is the ancestral property has to prove that it is an ancestral property in the hands of Kartha. The 1st defendant relies only on the recital of Ex.A.1 which is the sale deed in favour of the father Ramadas. The recitals in the document would show that in consideration of a sum of Rs.6,500/- paid by the purchaser to the vendor, by way of cheque, drawn by Sri K. Sundarrajalu Naidu on behalf of the purchaser. Unless a nucleus and the income from the joint family property is proved the recital that the father has paid the consideration on behalf of son will not go to show that the property is the joint family property. The recitals in Ex.A.1 would go to show that the grandfather had issued a cheque towards the consideration of sale and there is no mention about that such payment had been made from the income of the ancestral property. The recitals in Ex.A.1 would go to show that the grandfather had issued a cheque towards the consideration of sale and there is no mention about that such payment had been made from the income of the ancestral property. There is no proof to show that there was an existence of ancestral property and from the income thereof, the payment was made. From the payment, we could only presume that the father has made the payment on behalf of the son and such payment is intended as a gift and thereby the property becomes the absolute property of the son. Moreover, the defendant himself claims that there was an oral partition between the parties which was reduced into writing in 18.8.1995 and later partition was effected between the sharers. Once such partition or relinquishment of right is claimed coupled with admission that the suit property is the absolute property of the father, the 1st defendant cannot claim that the suit property is the ancestral property and the wife and daughters have no claim over it. Therefore, it is decided that the suit property is the absolute property of Ramadas, the husband of the 1st plaintiff and father of the plaintiffs 2 to 5 and the 1st plaintiff. The issue No.8 is decided against the plaintiff. 15. Issue No.7: Since it is decided that the suit property is the absolute property of the father, the claim of the 1st defendant that there was a family arrangement which was reduced into writing as early as 18.8.1995, whereby the sharers have relinquished their right in favour of the 1st defendant, has to be considered. 16. Ex.D.1 is the alleged family arrangement between the parties. This document was shown to P.W.1 in cross examination and was asked to identify whether the signatures found therein are that of herself and other family members. The witness had admitted to her signature and the signatures of other family members found in the document. The signatures in all five pages of the said document dated 18.8.1995 alone was marked as Ex.D.1. The witness added that she was not aware of the contents of the document. 17. The witness had admitted to her signature and the signatures of other family members found in the document. The signatures in all five pages of the said document dated 18.8.1995 alone was marked as Ex.D.1. The witness added that she was not aware of the contents of the document. 17. On cross examination, a suggestion was put to the witness that way back in 1981, there was oral partition among family members and the plaintiffs agreed to transfer the property in the name of the first defendant and this suggestion was denied by the witness. 18. Mr.B. Dinesh Kumar, learned counsel for the plaintiffs submitted that it is settled law that an unregistered document being compulsorily registrable under sec.17(1)(b) of Indian Registration Act cannot be received as evidence under Sec.49 of Indian Evidence Act. The learned counsel relied on 2001 (1) CTC 112 (A.C. Lakshmipathy and another vs A.M. Chakrapani Reddier and five others). The learned counsel further submitted that none of the attesting witnesses was examined to prove the document and therefore, the family arrangement cannot be accepted and the learned counsel further submitted that the signatures found in the document alone was marked as Ex.D.1 and the contents were not proved. 19. On the other hand, the learned counsel for the 1st defendant would submit that an unregistered family arrangement need not be registered and the contents need not be proved as it was superseded by a registered deed of partition. The learned counsel pointed out that there was oral partition between the parties as early as 1981 pursuant to which, mutation of records were effected, property tax was paid , electricity connection obtained and all these would show that the first defendant acquired the property by the relinquishing of plaintiffs' shares in favour of the 1st defendant. 20. The learned counsel further pointed out that in the presence of a registered deed of partition dated 27.11.2000 the family arrangement has to be accepted as it was acted upon. 21. The legality of unregistered family arrangement was decided in 2001 1 CTC 112 (A.C. Lakshmipathy and another vs A.M. Chakrapani Reddier and five others) cited supra. 20. The learned counsel further pointed out that in the presence of a registered deed of partition dated 27.11.2000 the family arrangement has to be accepted as it was acted upon. 21. The legality of unregistered family arrangement was decided in 2001 1 CTC 112 (A.C. Lakshmipathy and another vs A.M. Chakrapani Reddier and five others) cited supra. The Division Bench has held that if the family arrangement is reduced into writing and it purports to create, declare, assign, limit or extinguish any right, title or interest of any immovable property, it must be properly stamped and duly registered as per the Indian Stamp Act and Indian Registration Act. It further observed that a family agreement which is compulsorily registrable if not registered, can be looked into by the court for a collateral purpose. 22. Ex.D.1, as rightly pointed out, only relates to the signatures found in the document. When D.W.1 was in the box, the contents of the document was not marked and none of the attesting witnesses was also examined. Even according to the defendants, this family arrangement has been superseded by a registered partition deed in the year 2000. Therefore, it has to be concluded that family arrangement of the year 1995 is not proved by the defendants and no purpose would be served as the contents are also not proved in the manner known to law. This issue is answered accordingly. 23. The 1st defendant has claimed that there was a registered partition dated 27.11.2000. However, the execution of the deed was denied by the plaintiffs. Therefore, it has become necessary to take up issue No.3 for consideration. 24. Issue No.3: The plaintiffs No.1,3 and 5 were examined as P.Ws.1 to 3. They admitted the signatures found in Ex.B.2. However, the oral evidence of the plaintiffs would be that as requested by the 1st defendant they went to Sub Registrars Office and signed the document as it was represented to be a bond for getting three phase electricity connection to the suit property. However, according to the 1st defendant, since the oral partition which was reduced into writing in the year 1995, it was decided to be registered as a registered partition deed and therefore, the parties have executed the partition deed and came to the Registrar Office for registration. 25. However, according to the 1st defendant, since the oral partition which was reduced into writing in the year 1995, it was decided to be registered as a registered partition deed and therefore, the parties have executed the partition deed and came to the Registrar Office for registration. 25. Mr.B. Dinesh Kumar, the learned counsel for the plaintiffs submitted that the transaction which was never intended to be entered into is a void transaction and relied on a decision (Dularia Devi vs Janardan Singh and others). The learned counsel would further submit that the execution of the document was not proved by examining the attesting witnesses as required under Sec.68 of the Indian Evidence Act. The learned counsel submitted that if document is required by Law to be attested shall not be used as evidence until one attesting witness has been called for to prove its execution. The learned counsel further submitted that one of the sisters has not signed in the document but alleged to have been executed a power of attorney in favour of the mother and the mother has signed on behalf of the daughter. The learned counsel submitted that even the said power of attorney is unregistered and therefore, it is not a valid document. 26. On the other hand, the learned counsel for the 1st defendant would submit that a registered document need not be proved by examination of attesting witnesses. The learned counsel further submitted that when a document is duly proved and executed before the registration authority, presumption under Sec.114 (e) of Indian Evidence Act comes to play and it has to be presumed that the document has been duly executed and the contents have been proved. 27. The learned counsel would further submit that a power of attorney need not be registered and there is a presumption under sec.85 of the Indian Evidence Act that such power of attorney is executed before a Notary Public if it is attested by a Notary Public. The learned counsel further submitted that the registered partition deed was executed on 27.11.2000 and the suit is filed to set aside the document only in the year 2010 and therefore, the same is barred by limitation. The learned counsel further submitted that the rights of the parties has already been extinguished by the conduct of the parties and therefore the suit is not maintainable. 28. The learned counsel further submitted that the rights of the parties has already been extinguished by the conduct of the parties and therefore the suit is not maintainable. 28. Ex.D.2 is a registered partition deed. The plaintiffs have admitted their signature but would deny the contents of the document. The explanation offered by them is that what was intended was a bond for the purpose of getting three phase connection to the property. Since the plaintiffs deny the execution of a registered document the onus is upon them to prove that what was intended was not a partition deed but a bond. According to the plaintiff, the document itself is not proved as contemplated under Sec.68 of the Evidence Act which reads as follows: 68. Proof of execution of document required by law to be attested : _ If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. (Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied. 29. However, the learned counsel for the 1st defendant would contend that the execution of the registered document need not be proved by examining the attesting witnesses as there is a presumption of execution under sec.114(e) of Evidence of Act. Sec.114 (e) reads as follows: “114.Court may presume existence of certain facts. (e)That judicial and official acts have been regularly performed;" 30. In any event, the contention of the learned counsel for the 1st defendant is that the execution of the document is of the year 2000 which was sought to be declared as null and void in the year 2010 and therefore, it is barred by limitation. To set aside the registered document, the period is three years either from the date of document or from the date of knowledge. 31. To set aside the registered document, the period is three years either from the date of document or from the date of knowledge. 31. However, the learned counsel for the plaintiffs would contend that the document itself is void as there is plea of principle of non-est factum. It is the further contention of the plaintiffs that the plaintiffs never intended to sign a partition deed. 32. The deed of partition is assailed on two grounds (1) the said partition was not intended to be executed (2) the attesting witnesses were not examined as required under Sec.68 of the Indian Evidence Act. Sec.68 of the Evidence Act covers those documents which are required by Law to be attested, however, partition deed is not a document which require by law to be attested. Sec.72 of the Evidence Act would show that an attested document not required by law to be attested may be proved as it was unattested. 33. As far as the plea that though the parties have signed the document it was not intended as a partition deed, but a bond which the 1st defendant brother required for obtaining a three phase electrical connection, it is has to be proved by the plaintiffs. The burden is heavily upon them to prove that what was intended was not a partition deed. 34. In paragraph 13 of the plaint, the plaintiffs would state that they have entrusted some blank signed papers to the 1st defendant and he had illegally made use of them and converted them into a family arrangement. In paragraph 16 of the plaint they would aver that they were shocked and surprised to know that the 1st defendant has created a deed of partition on 27.11.2000. 35. In paragraph 17 they would aver that the 1st defendant requested plaintiffs 1 to 3 to execute a bond enabling him to take a fresh electricity line and therefore they signed the documents blindly. But they would admit that the document has been registered in the office of the District Registrar. It is admitted that the execution was admitted by them in the presence of the District Registrar and they have also put their thumb impression. In 2008 (15) SCC 678 (Ranganayakamma vs K.S. Prakash), the Hon'ble Supreme Court was dealing with a case with similar set of facts. It is admitted that the execution was admitted by them in the presence of the District Registrar and they have also put their thumb impression. In 2008 (15) SCC 678 (Ranganayakamma vs K.S. Prakash), the Hon'ble Supreme Court was dealing with a case with similar set of facts. The contentions raised by the plaintiffs assailing the partition deed in that case was that As there is a misrepresentation in regard to the nature of the document as the deed of partition ultimately turned out to be a deed of relinquishment; As the deed of partition and the deed of relinquishment were void ab initio; The partition of the properties being unfair and unequal, reopening of the partition is permissible; The contentions of the defendants in that case was All the documents being registered documents, they carry a presumption of proper execution; partition in the year 1957 and the Institution of the partition suit in the year 1992; the depositions of the appellants categorically show that all the documents were executed with their knowledge and their signatures had not been obtained; The Hon'ble Supreme Court in that case held as follows: “42.Admittedly, the papers were signed either in the office of the advocate or before the Sub-Registrar. It was, therefore, done at a public place. No signature was obtained on blank paper. No document was executed in a hush-hush manner. It has been alleged that taking fraudulent advantage of the innocence and ignorance of the plaintiffs and Defendant 2, the said deed of partition was executed resulting in an unjust, unfair and unequal fraudulent partition of the unequal properties. If their signatures had not been obtained on blank sheets of papers, it was for the appellant-plaintiffs to show who had taken advantage and at what point of time. Both the courts below have come to the conclusion that the sisters had jointly taken a stand that they would not claim any share in the property. One of the sisters, who wanted a share in the property, had been paid a sum of Rs 40,000 and she had executed a deed of relinquishment. The said fact is not denied. All other sisters were, thus, aware thereof. They knew what was meant by relinquishment. All deeds including the said deed of partition were executed with the knowledge that they had been signing the deed of partition and no other document. The said fact is not denied. All other sisters were, thus, aware thereof. They knew what was meant by relinquishment. All deeds including the said deed of partition were executed with the knowledge that they had been signing the deed of partition and no other document. This has categorically been stated by Plaintiff 1 Kanthamma in her evidence which we may notice in the following terms: “1. Each of the sisters have been given one rupee and signatures were obtained on partition deed on 5-8-1983. 2. I had gone to the Sub-Registrar’s Office at the time of registration of the said partition deed. The Sub-Registrar did not explain the contents of the said partition deed. 3. I do not remember the date on which I affixed my signature on partition deed. We, all the sisters and mother, had gone to the Sub-Registrar’s Office at the time of registration of the partition deed.” They were, therefore, aware that the deed in question was a deed of partition. They admitted that they had put their signatures before the Sub-Registrar and nowhere else. Their statements appear to be far-fetched and beyond the ordinary human conduct. If a plea was to be raised and evidence was required to be addressed that there had been a fraudulent misrepresentation as regards the character of partition deed (Exhibit D-6) and in absence of any particulars having been furnished as regards alleged fraud and misrepresentation, the said deeds would not be void but only voidable. Ultimately the Hon'ble Supreme Court rejected the plea of the sisters who have challenged the registered partition deed. 36. Similarly, the case on hand P.W.1 would admit in her evidence that “as requested by my brother, we all went to Sub Registrar office and signed the document as it was represented to be a bond for getting three phase electricity connection to the suit property”. “On the reverse page of Ex.D.2, I have affixed my left thumb impression and also signed”. “I am not aware whether a three phase power connection to the suit property was obtained prior to the execution of Ex.D.2.” 37. Similarly, the 1st plaintiff who was examined as P.W.2 would admit in her evidence “It is true that myself, my son and my daughters went to the Sub Registrars office and signed Ex.D.2. “I am not aware whether a three phase power connection to the suit property was obtained prior to the execution of Ex.D.2.” 37. Similarly, the 1st plaintiff who was examined as P.W.2 would admit in her evidence “It is true that myself, my son and my daughters went to the Sub Registrars office and signed Ex.D.2. We signed the document on the reverse page 1 of Ex.D.2 and all the pages of ex.D.2 in the presence of the Sub Registrar.” 38. P.W.3 was not a signatory to the document but the 1st plaintiff has signed the document on her behalf on the basis of power of attorney which is marked as Ex.D.3. The said power of attorney is also assailed stating that it is not a registered power of attorney. 39. As rightly pointed out by the learned counsel for the defendants Sec.85 deals with presumption as to the power of attorney and the court shall presume that every document purporting to be a power of attorney and to have been executed before and authenticated by a Notary Public was so executed and authenticated. 40. P.W.2 having admitted her signature cannot now go back and say she has not signed on behalf of her daughter who has given her power of attorney. 41. Article 59 of the Limitation Act deals with the limitation to set aside the registered document. However, the plaintiffs would take a plea that for non est factum the document need not be challenged as it is void and also take a plea that they have the knowledge about the document only in the year 2010. 42. Applicability of Article 59 would indisputably depend upon the question as to whether the deed of partition was required to be set aside or not. However, the plaintiffs prayed for a relief to declare the partition deed as null and void. Therefore, the principle non-est factum need not be gone into. However, the question of limitation would be attracted. 43. As stated earlier, the burden is heavily upon the plaintiffs to prove that the partition deed dated 27.11.2000 was not intended to be a partition deed. The facts and circumstances of the case cited supra squarely applies to the facts on hand. However, the question of limitation would be attracted. 43. As stated earlier, the burden is heavily upon the plaintiffs to prove that the partition deed dated 27.11.2000 was not intended to be a partition deed. The facts and circumstances of the case cited supra squarely applies to the facts on hand. It is farfetched to believe the plaintiffs, who are all well-educated to state that they do not know about the contents of the Ex.D.2 which is a partition deed. For the purpose of getting three phase electricity connection it is common knowledge that a no objection letter from the co-owners is enough but what they have signed is a deed executed before a registering authority, and presumption under Sec.114(e) of Evidence Act is to be drawn. 44. The knowledge as claimed by the plaintiffs is also unacceptable as the deed of partition is a registered partition deed in accordance with the Registration Act and the suit is barred by limitation. The rights of the plaintiffs have also extinguished as they admit in the plaint that they have signed some blank papers as early as 1995 which were used by the 1st defendant for a family arrangement. 45. The family arrangement need not be looked into as there is a subsequent registered partition deed and the plaintiffs miserably failed to prove that it is a void document and what was intended to be executed is only a bond and not a partition deed. Accordingly, issue nos.3 and 6 are decided against the plaintiffs. 46. Issue No.5 The plaintiffs would also plead that the defendants are in possession of the property in a fiduciary position which is, in the position of trust and confidence and therefore, they have not relinquished their right and they are not barred from claiming any right in the property. 47. The learned counsel for the plaintiffs would submit that in a fiduciary relationship such as trustee and beneficiary, guardian and ward, agent and principal and when the beneficiary places complete confidence on the other person he is expected to act for the benefit of the beneficiary. However, the plea of ouster by the 1st defendant cannot be accepted though the 1st defendant was in possession and enjoyment of the property after all the sisters have got married and gone away. 48. However, the plea of ouster by the 1st defendant cannot be accepted though the 1st defendant was in possession and enjoyment of the property after all the sisters have got married and gone away. 48. As far as possession is concerned in a partition suit, a possession by one co-owner is the possession of others. The only contention of the plaintiffs is that the 1st defendant was believed and entrusted with the property but has not acted in a fiduciary capacity. However, the execution and the registration of a partition deed would stare at them and as stated earlier they have miserably failed to prove that it was not intended to be a partition deed. The issue is decided accordingly. 49. Issue No.4: The plaintiffs have also sought for a prayer to declare the settlement deed dated 10.2.2010 executed by the 1st defendant in favour of the 2nd defendant as null and void. In view of the decision arrived in issue No.3, this issue will not arise as the partition deed is held to be valid and the 1st defendant had all the right to execute a settlement deed in favour of the 2nd defendant, who is his son. This issue is answered against the plaintiffs. 50. Issue No.1 and 2 : Since the partition deed dated 27.11.2000 is a valid document binding upon the plaintiffs the plaintiffs are not entitled for partition and separate possession of 1/6th share each and also not entitled for measne profits and delivery of possession of their share. This issue is answered against the plaintiffs. 51. In the result, the suit is dismissed. No costs.