JUDGMENT : Anant Bijay Singh, J. Heard learned counsel appearing for the parties. 2. The sole appellant has preferred this appeal being aggrieved and dissatisfied with the judgment and decree dated 24.08.2002 passed by Addl. Judicial Commissioner, Ranchi in Title Appeal No.106/95 affirming the judgment dated 14.09.95 and the decree dated 25.09.95 passed by Sri T. Pathak, Sub-Judge-VII, passed in Partition Suit No.183 of 1988/17 of 1994. 3. It appears that this appeal was filed on 27.11.2002 and on 13.08.2004 this appeal was admitted for hearing on the following substantial questions of law : (i) Whether the Court below have committed an error of law in dismissing the plaintiff's suit in view of Section 23 of the Hindu Succession Act, 1956 without taking note of the decision reported in AIR 1996 S.C. 1826 and without recording specific finding on the controversy that the suit property is not being only used for dwelling purposes of the family members ? (ii) Whether the Courts below have wrongly applied bar of Section 34 of the Specific Relief Act in the facts and circumstances of the case and that too without recording cogent speaking reasons ? 4. Further, the appellant has filed I.A.No.1117 of 2009 with a prayer for grant of injunction, as the respondents were trying to sell the property in question and a co-ordinate Bench of this Court vide order dated 13.07.2009 had directed the parties to maintain status quo, as existed, till disposal of the appeal. 5. From perusal of order dated 08.01.2016, learned counsel for the appellant has informed that during pendency of the appeal, respondent no.2 Konika Chatterjee has died and hence sought permission for filing necessary application for bringing on record the legal heirs of respondent no.2 and thereafter, the appellant filed I.A.No.1113 of 2016 for deletion of name of respondent no.2 Konika Chatterjee, who died issue less and she has no legal heirs/representatives and a Co-ordinate Bench of this Court vide order dated 26.02.2016 allowed I.A. No.1113/2016 and the name of respondent no.2 was deleted from the cause title. Thereafter, only on 29.06.2017, the case was transferred to this Bench and it was adjourned time to time. 6. On 11.01.2018, since the argument of respondent no.6 was completed, the case was directed to be listed on 25.01.2018 to enable appellant to file reply. But the case was de-listed and it was listed before a Co-ordinate Bench . Thereafter, only on 29.06.2017, the case was transferred to this Bench and it was adjourned time to time. 6. On 11.01.2018, since the argument of respondent no.6 was completed, the case was directed to be listed on 25.01.2018 to enable appellant to file reply. But the case was de-listed and it was listed before a Co-ordinate Bench . Thereafter, vide order dated 25.01.2018 this case was de-listed and it was again listed before this Bench on 06.04.2018. Thereafter, time to time this case was adjourned and lastly on 21.08.2019 this case was heard at length and after completion of argument of both the parties, the judgment was reserved. 7. The case of plaintiff/appellant/appellant, in brief, is that the plaintiff/appellant, Miss China Moitra has filed Title Suit No.183/88 before the Sub-Judge-VII, Ranchi for declaration that the deed of relinquishment dated 16.06.75 had been obtained by fraud and the same did not and could not effect or extinguished the plaintiff's undivided share in the suit property and for a preliminary decree for partition of share of the plaintiff in the suit property and also for a final decree allowing specific portion in the suit property. 8. It is submitted that the suit property was the self-acquired property of the plaintiff's father and defendant's father Baidyanath Moitra who died intested at Ranchi on 7.11.1970. Late Baidyanath Moitra left his widow and only one son Dinanath Moitra and five daughters including the plaintiff. The defendant no.2 was erratic and unpredictable. During his last days late Baidyanath Moitry used to be severely tortured by defendant no.2 and he was kept confined in a locked room by defendant no.2. There was no reason except perverted pleasure of defendant no.2. After the death of his father, defendant no.2 started to give threatening that hen would commit suicide if his mother and sisters did not give their power of attorney to authorize and empower him and alone to deal with the estate of late Baidyanath Moitra. The plaintiff reluctantly and was forced to agree to the same and thereafter she was made to sign some documents in the year 1975 and she was told that by such signature she was authorizing defendant no.2 to deal with the property. The plaintiff reluctantly and was forced to agree to the same and thereafter she was made to sign some documents in the year 1975 and she was told that by such signature she was authorizing defendant no.2 to deal with the property. In good faith the plaintiff had signed the document believing the same to be a power of attorney and till recently the plaintiff had no knowledge that her signature had been obtained on a release deed and the same has been registered before the District Sub-Registrar, Ranchi. After the marriage of plaintiff's younger sister defendant no.2 began showing true colour and began claiming that all the movable funds of late Baidyanath Moitra had been adjusted in the marriage of defendant no.4 to 6 and he has no responsibility either for arranging marriage of the plaintiff or even for providing maintenance her. He also began to torturing the plaintiff. He was beaten mercilessly by defendant no.2 and she got to ribs broken. Due to blind affection for her only son the mother did not interfere in any way with the cruelty perpetrated upon the plaintiff and defendant no.2 grew a sense of impurity day by day. The two sisters namely, Konika and Annapurna were also residing in the same premises but they were being threatened by defendant no.2 as after the marriage they had no right to reside in her parental house. Defendant no.2 also lodged a number of false cases before the Police against the plaintiff and defendant nos.4 and 5. Plaintiff sought help from Nari Utpiran Birodhi Sanghrash Samiti for her protection. The Samiti made inquiry and found the grievances of the plaintiff to be well founded. The plaintiff took legal advice against the spreading pamphlets against the plaintiff by legal notice dated 1.10.88. Those notices returned unreserved. On 04.10.88 the plaintiff came to know for the first time that in her signature had been obtained in the deed of relinquishment on 16.6.75 and the same had been registered before the District Sub-Registrar, Ranchi. The plaintiff was not allowed to read the document and had to be satisfied with the representation of defendant no.2. She applied for the certified copy of the said deed on 04.10.88 and copy was obtained on 06.12.88 then the plaintiff came to know about the deed dated 16.06.75. The plaintiff was not allowed to read the document and had to be satisfied with the representation of defendant no.2. She applied for the certified copy of the said deed on 04.10.88 and copy was obtained on 06.12.88 then the plaintiff came to know about the deed dated 16.06.75. The plaintiff has undivided 1/7th share in the suit properties and such share has neither ever been intended to be relinquished or disclaimed nor in fact been relinquished, disclaimed or lost in any way. 9. The case of defendants/respondents/respondents is follows : Defendants filed their written statement. When defendant no.1 was alive filed her written statement stating that there is no unity of title and possession between the plaintiff and the defendant and as such suit for partition in not maintainable. The suit is barred U/s 23 of the Hindu Succession Act. 10. Defendant no.2 filed his separate written statement stating that Baidyanath Moitra, the father during his life time executed a will on 9.02.68 bequeathing the property in suit exclusively to the defendant no.2 and as per terms of the will executed by him in presence of the plaintiff, the defendant no.2 became the absolute owner and came into exclusive possession of the same. The plaintiff and defendant nos. 3 to 6 duly acknowledged the defendant nos. 1 and 2 as the absolute owner. They jointly executed and relinquished deed of release in favour of defendant no.2, relinquishing their right, title and interest in the suit property. He has also got his name mutated in the office of the State of Bihar and making regular payment of rent and taxes in his own name. Plaintiff is a tool in the hands of Sri Sanat Kumar Chatterjee and Pradip Kumar Chatterjee who are inimical term with the defendant no.2. He never assaulted and humiliated to the plaintiff. He always maintained and supported his father. He never tortured his parents. Releasors were duly identified by Sanat Kumar Chatterjee, husband of defendant no.3. He got Bela Mazumdar married from his own fund and resources in the year 1972. He also got married the defendant nos.5 and 6 out of his own resources and money. He joined service in the State Bank of India in the year 1960 and since then he is supporting his family. He got Bela Mazumdar married from his own fund and resources in the year 1972. He also got married the defendant nos.5 and 6 out of his own resources and money. He joined service in the State Bank of India in the year 1960 and since then he is supporting his family. The suit is barred by limitation, adverse possession an the suit is also barred U/s 34 of the Specific Relief Act, 1963. 11. A written statement was filed on behalf of Konika Chatterjee, defendant no.3 supporting the case of the plaintiff. She has stated that his father was seriously ill six years prior to the date of his death. The alleged Will was never seen the light of the days, as a sick and old infirm can not sign the Will. The story of spending money on the marriage of sister is false. The father has got money for the marriage of his daughters. This defendant has never relinquished her right from the suit property of her late father. The knowledge of the release deed came to this defendant after 6.12.88 when she red the contents of the certified copy of the deed. 12. Defendant no.4 Smt. Bela Mazumdar also filed her written statement, supporting the case of defendant no.2 that plaintiff's suit is frivolous. It was not self-acquired property of the plaintiff's father late Baidyanath Moitra. Defendant no.2 is the absolute owner with respect to the suit property. It was denied that her father was being severely tortured by defendant no.2. It was also denied that she was made to sign some documents in the year 1975. The Will was voluntarily executed by her father. 13. A written statement was filed on behalf of Annapurna Banerjee, defendant no.5 supporting the case of the plaintiff. 14. Smt. Sheela Biswas, defendant no.6 also filed her written statement supporting the case of defendant no.2 on the same line. 15. For the plaintiff, four witnesses were examined and plaintiff was examined as P.W.4 and 17 witnesses were examined by several defendants. 16. Further, the trial court on the basis of pleadings of the parties has framed altogether 13 issues, which are as follows : (I) Is the suit as frame maintainable ? (II) Has the plaintiff valid cause of action for the suit ? (III) Is the court fee paid sufficiently ? 16. Further, the trial court on the basis of pleadings of the parties has framed altogether 13 issues, which are as follows : (I) Is the suit as frame maintainable ? (II) Has the plaintiff valid cause of action for the suit ? (III) Is the court fee paid sufficiently ? (IV) Is the suit barred by limitation, adverse possession and ouster ? (V) Is the suit barred by the principles of waiver,estoppel and acquiescence ? (VI) Is the suit barred under section 34 of he Specific Relief Act, 1963 ? (VII) Is there unity of little and possession between the plaintiff and the defendants ? (VIII) Is the suit bad for mis joinder and non joinder of parties ? (IX) Is the suit barred under section 23 of the Hindu Succession Act, 1956 ? (X) Has the plaintiff legal right to claim partition ? XI) Is the deed of relinquishment dated 16.06.1975 obtained by fraud ? XII) Has Baidyanath Moitra left behind cash and movable ? (XIII) Is the plaintiff entitled to get 1/7th share in the suit properties ? 17. Issue nos. (VII), (VIII), (X) (XI), (XII) and (XIII) are the main issues and they were taken on the basis of evidence led by the parties and these are against the plaintiff and in favour of defendants. Similarly, issue no.(XII) has been decide in favour of defendant no.2 and against the plaintiff. Issue no. VIII has been decided in favour of defendant no.2 and against the plaintiff. Issue no. III has been decided against the plaintiff and in favour of defendant no.2. Similarly, Issue no.(I), (IV), (V) and (VI) have been decided against the plaintiff and in favour of defendant no.2. 18. So far issue no.(II) is concerned, it has been held that the plaintiff has no cause of action for the suit and she is not entitled to any of the reliefs claimed. 19. Thereafter, the plaintiff/appellant filed Title Appeal No.106/1995 before the court of Addl. Judicial Commissioner, Ranchi against the judgment dated 14.09.1995 and decree dated 25.09.1995 passed by Sub-Judge-VII, Ranchi dismissing the Partition Suit no.183/88 and vide judgment dated 24.08.2002 and the Addl. Judicial Commissioner, Ranchi has dismissed the Title Appeal and affirmed the judgment passed in the Partition Suit no.183/88. 20. Thereafter, the plaintiff/appellant filed Title Appeal No.106/1995 before the court of Addl. Judicial Commissioner, Ranchi against the judgment dated 14.09.1995 and decree dated 25.09.1995 passed by Sub-Judge-VII, Ranchi dismissing the Partition Suit no.183/88 and vide judgment dated 24.08.2002 and the Addl. Judicial Commissioner, Ranchi has dismissed the Title Appeal and affirmed the judgment passed in the Partition Suit no.183/88. 20. While dismissing the appeal, the Appellate Court has observed that the suit as framed has rightly been held by the learned court below and was not maintainable and it was rightly been held that the plaintiff has got no cause of action. 21. In course of argument and also in the written notes of argument, learned counsel for the appellant has submitted that the both the court below have failed to consider the facts that only on reply to the notice sent by defendant no.2 dated 07.10.1988 the plaintiff/appellant came to know the deed of relinquishment which was got signed on the pretext of power of attorney by practicing fraud. Thereafter, on 06.12.1988 the plaintiff/appellant obtained certified copy of deed of relinquishment and thereafter portion of suit property let out to a tenant Ajit Kumar Biswas for declaration that the alleged deed of relinquishment dated 1.06.1975 was obtained by fraud and the same could not affect of extinguish right in the suit property for grant of 1/7th share-more 1/6. 22. It was submitted that the suit premises is not dwelling house as there are as there are 5 tenants, hence Section 23 of the Hindu Succession Act is not attracted. 23. Further, it was submitted that the father of the plaintiff was sick and bed ridden for 6 years before his death, so there is no question to execute the Will. No Will was produced in the trial court and the trial court has given concurrent find in absence of Will. Hence, both the court below have committed error, both in law and in fact and so the find of the trial court be set aside and the appeal be allowed. 24. In support of his submissions, learned counsel for the appellant has relied upon the judgment of the Supreme Court in Mr. Hem Nolini Judah ( since deceased) and after her legal representative Mr.Marlean Wilkinson Vs. Isolyne Sarojbasnhini Bose & Ors, reported in AIR 1962 SC 1471 . 24. In support of his submissions, learned counsel for the appellant has relied upon the judgment of the Supreme Court in Mr. Hem Nolini Judah ( since deceased) and after her legal representative Mr.Marlean Wilkinson Vs. Isolyne Sarojbasnhini Bose & Ors, reported in AIR 1962 SC 1471 . From perusal of the aforesaid judgment, it appears that the aforesaid judgment relates to establishment of right in the letters of administration, where other person claimed to be under legatee and the title was not determined in the probate proceedings with respect to res judicata in estoppel. It was held that that as per Section 218 of the Indian Succession Act was a bar tothe establishment of any right under a will be an executor of legatee unless probate or letters of administration have been obtained. 25. Further, learned counsel for the appellant has relied upon the judgment of the Supreme Court in Rameshwar and Ors.Vs. Jot Ram and Anr, reported in AIR 1976 SC 49 . From perusal of the aforesaid judgment, it appears that the matter relates to Sections 2(2), 18 (1), 18(2), 18(4) and 24 of Punjab Security of Land Tenures Act, 1953 and the provision of Section 23 of the Hindu Succession Act. The ratio laid therein is not attracted in the fact of this case. 26. Further, learned counsel for the appellant has relied upon the judgment of the Supreme Court in Narashimaha Murthy Vs. Smt. Susheelabai and others, reported in AIR 1996 SC 1826 wherein the Hond'ble Supreme Court has observed as follows : 2. The only question argued before us is : whether the dwelling house is partible, when Narasoji Rao died leaving behind his only son and three daughters? That the house is a dwelling house is not in dispute. So the need to go into the meaning of the words “dwelling house” is obviated. There is a cleavage of judicial opinion among High Courts on their interpretation of Section 23 of the Act which provides thus : 23. That the house is a dwelling house is not in dispute. So the need to go into the meaning of the words “dwelling house” is obviated. There is a cleavage of judicial opinion among High Courts on their interpretation of Section 23 of the Act which provides thus : 23. Special provision respecting dwelling houses-Where a Hindu intestate has left surviving him or her both male and female heirs specified in Class I of the Schedule and his or her property includes a dwelling house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein. Provided that where such, female heir is a daughter, she shall be entitled to a right of residence in the dwelling house only if she is unmarried or has been deserted by or has separated from her husband or is a widow.” 27. The ratio decided in the aforesaid judgment is not applicable in view of the concurrent findings given by both the courts below, as the house is the dwelling house. So the provision of Section 23 of the Hindu Succession Act is not attracted. 28. Further, learned counsel for the appellant has relied upon the judgment of the Supreme Court in Bellachi (Dead) by LRS Vs. Pakeeran, reported in (2009) 12 SCC 95 wherein the Hon'ble Supreme held as under : 10. The jurisdiction of the High Court in terms of Section 100 of the Code of Civil Procedure is limited. It can interfere with the concurrent findings of two courts if any substantial question of law arises of its consideration. Whether the respondent despite the fact that he was brother of the appellant was in a dominating position is essentially a question of fact. Per se it does not give rise to a substantial question of law. 11. We have noticed herein before that the trial court as also the first appellate court inter alia held that the very basis of the claim of the appellant was that that the respondent had been very close to her and had been visiting her quite often and thus was a man of trust had not been established. 11. We have noticed herein before that the trial court as also the first appellate court inter alia held that the very basis of the claim of the appellant was that that the respondent had been very close to her and had been visiting her quite often and thus was a man of trust had not been established. Although the parties to the suit used to live together at one point of time, the respondent parted with her company 15 years prior to the execution of the deed of sale. He had visited her house only when her husband fell ill. 12. A concurrent finding of fact has also been arrived at that the appellant was not a person wholly incapable of understanding things. It was furthermore held that the plaintiff had sufficient funds for her own treatment as also for the treatment of her husband and thus the story that she was made to believe that she would be rendered financial assistance by some banks so as to enable her to meet the expenses for her husband's treatment, is not correct. It was, furthermore, noticed that her husband as also her daughter (PW2) were government employees. 13. The said concurrent findings of the fact ordinarily are binding on the High Court while exercising its jurisdiction under section 100 of the Code of Civil Procedure. 14. This Court in Afsar Sheikh V. Soleman Bibi held as under : (SCC pp.144-45, para 4) “4. In his written statement, Afsar defendant denied the allegations of fraud and misrepresentation. He averred that his grandmother was the sister of the plaintiff's mother. The defendant's father died when he was an infant. The plaintiff brought him up as a son. Since his very infancy, the defendant has been living with the plaintiff, managing his affairs and treating him as his father. The defendant further stated that the plaintiff had transferred 10 to 12 bighas of land to his natural son and an equal area to his second wife. Out of love and affection, the plaintiff conferred a similar benefit on the defendant and voluntarily executed the hiba-bil-ewaz after receiving from the donee a dhoti as a symbolic consideration thereof. He denied that the plaintiff at the time of the gift was too old and infirm. According to him, the plaintiff was not more than 75 years of age. Out of love and affection, the plaintiff conferred a similar benefit on the defendant and voluntarily executed the hiba-bil-ewaz after receiving from the donee a dhoti as a symbolic consideration thereof. He denied that the plaintiff at the time of the gift was too old and infirm. According to him, the plaintiff was not more than 75 years of age. He further averred that he was in possession of the suit lands ever since the execution of the hiba. 20. It is well settled that question whether a person was in a position to dominate the will or another and procured a certain deed by undue influence, is a question of fact, and an finding thereon is a finding of fact, and if arrived at fairly, in accordance with the procedure prescribed, is not liable to be reopened in second appeal (Satgur Prasad v.Mahant Har Narain Das; Ladli Parshad Jaiswal v. Karnal Distillery Co.Ltd.) 15. It is not the case of the appellant that the finding of the first appellate court on the question of fraud, undue influence, etc. Is vitiated by any illegality, omission or error or defect as envisaged under Section 100 of the Code of Civil Procedure. 16. Section 16 of the Contract Act provides for as to what constitutes undue influence. Relationship between the parties so as to enable one of them to dominate the will of other is a sine qua non for constitution of undue influence. Findings of fact as noticed herein before have been arrived at by both the trial Judge as also the first appellate court that the respondent was not in a position to dominate the plaintiff's will. 17. In a given case it is possible to hold that when an illiterate, pardanashin woman executes a deed of sale, the burden would be on the vendee to prove that it was (sic) the deed of sale was a genuine document. It is, however, a registered document. It carries with it a presumption that it was executed in accordance with law. Again a concurrent finding of fact has been arrived at that the appellant was not an illiterate woman or she was incapable of understanding as to what she had done. 18. Mr. It is, however, a registered document. It carries with it a presumption that it was executed in accordance with law. Again a concurrent finding of fact has been arrived at that the appellant was not an illiterate woman or she was incapable of understanding as to what she had done. 18. Mr. Dinesh has placed strong reliance upon a decision of this Court in Sethani v. Bhana wherein having regard to the facts that had been arrived at from the courts below, it was held : (SCC p.640, para 4) “4.... The facts are so glaring, still the onus to prove the issue has been overemphasized. It is true that the initial onus to prove undue influence was on the appellant-plaintiff, but the onus, in the facts and circumstances of the case, was easily discharged. It is the respondent who had obtained the sale deed in his favour way back on 1-4-1963 by a registered sale deed, which saw the light at a late stage of the trial. From the certified copy thereof it was evident that no consideration passed at the time of the sale. Nobody from the registration office was examined to explain the sale. No evidence was led by the respondent to discharge the onus that the sale deed was executed under no undue influence, even though the vendor was old, blind, illiterate and a tribal woman totally at the mercy of the respondent, with whom she was living till her death. The parties were so situated that Bhana, respondent was in a position to dominate the will of Putlibai and was in a position to obtain an unfair advantage over her. It is also in evidence that Putlibai was dependent on the respondent. The trial court had given cogent reasons to come to the finding that the sale deed was vitiated on account of the condition in which Putlibai was put due to her relationship with Bhana, respondent, as well as the manner and nature of the transaction. 19. Furthermore both the courts below have held that the plaint does not contain any particulars of undue influence, fraud, etc. The law does not envisage raising of a presumption in favour of undue influence. 19. Furthermore both the courts below have held that the plaint does not contain any particulars of undue influence, fraud, etc. The law does not envisage raising of a presumption in favour of undue influence. A party alleging the same must prove the same subject to course to just exceptions.” It is submitted by learned counsel for the appellant that the concurrent findings given by both the courts below are perverse in law and hence, this appeal be allowed. 29. In course of argument and also in the written notes of argument, learned counsel for the respondent no.5 has submitted that the appellant has filed the above appeal against the judgment and decree dated 24.08.2002 passed by the learned Additional Judicial Commissioner, Ranchi dismissing Title Appeal No. 106 of 1995 and confirming the judgment and decree dated 14.09.1995 passed sub Judge VII, Ranchi dismissing Partition Suit no.183 of 88. 30. Briefly stated the case of the appellant is that the appellant filed Petition Suit No. 183 of 1988 in the Court of Sub Judge, Ranchi against the respondents praying therein for declaration that the deed of Relinquishment dated 16.06.1975 has been obtained by practicing fraud and the same could not effect or extinguish the appellant's undivided 1/7th share in the suit property and prayer was made for a preliminary decree of 1/7th share of the appellant in the suit property. It was further stated that the suit properties were the self-acquired property of Baidyanath Moitra who died leaving behind his widow Nihar Moitra, (Respondent no.2), his only son Dinanath Moitra ( Respondent no.1) and five daughters i.e., the appellant and the respondent nos. 3 to 6. It was further stated that during last days of Baidyanath Moitra the Respondent no.1 used to torture him and in fact for last two to three years he was confined in a locked room and the key of the lock was to be kept by the Respondent no.1. It was further stated that Baidyanath Moitra died leaving behind the suit property, cash and valuables and after his death, the Respondent no.1 began creating scenes and began threatening that he would commit suicide if his mother and sisters do not give him power of attorney to authorize and empower him to deal with the estate of Baidyanath Moitra. It was further stated that Baidyanath Moitra died leaving behind the suit property, cash and valuables and after his death, the Respondent no.1 began creating scenes and began threatening that he would commit suicide if his mother and sisters do not give him power of attorney to authorize and empower him to deal with the estate of Baidyanath Moitra. It was further alleged that the appellant though initially reluctant to grant any power of attorney was however coerced to agree to the same and thereafter she was made to sign some documents in the year 1975 and she was told that by such signatures she was authorizing and empowering the Respondent No. 1 to deal with the property and the appellant signed the documents believing the same as power of attorney and the appellant had no knowledge that her signature has been obtained on the release deed and the same has been registered before the District Sub-Ranchi. It was further alleged that the appellant found that her mother and sisters have also signed the document and she could not understand as to what actually has been written in the document. 31. It was further stated that the Respondent No. 1 also began physically torturing the appellant and on one occasion, he mercilessly beat and broke two ribs of the appellant and the appellant had become mortally afraid of her brother. It was further stated that the Respondent No. 1 also lodged number of false reports to the police against the plaintiff and the Respondent No. 3 and 5 and also against the husband of Respondent No. 3 and 5. It was further alleged that since the beginning of 1988 situation had become unbearable for the appellant and she sought help from the Nari Utpidan Virod Sangarsh Samittee and legal Welfare Protection Society and the said Samitee made inquiries and find grievances of the appellant be well founded. It was further stated that from the letter dated 04.10.1988 of the respondent No. 1, the appellant came to know for the first time that in the pretext of power of attorney, her signature had been obtained on the deed of Relinquishment on 16.06.1975 and the Respondent No. 1 coerced the appellant to sign the document purporting to the power of attorney and the appellant was not allowed to read the document. It was further alleged that by practicing fraud a deed of Relinquishment had been got executed and the appellant filed an application before the District Sub Registrar, Ranchi for Certified Copy of registered deed dated 16.06.1975 and when the copy was obtained on 06.12.1988, the appellant came to know that the deed dated 16.06.1975 was in fact a deed of Relinquishment wherein various confusing and contradictory recitals have been made about the alleged deed of Baidyanath Moitra in favour of Dinanath Moitra. The deed dated 16.06.1975 was fraudulently got by the respondent and the said document does not affect the right, title and interest of the appellant over the suit property and the appellant has undivided 1/7th share in the suit property. 32. It is admitted fact that the defendant no.1 before the learned Court below is mother of all the parties, i.e., appellant/plaintiff and respondents/defendant no.2 to 6, died during the pendency of the suit but in fact the said defendant no. 1 has filed a written statement and as per Section 32 (5) of the Indian Evidence Act, this is a settled law that the averments made in the written statement are admissible as per the Evidence Act. 33. It is settled law as per the Hon'ble Apex Court as per citation AIR 1967 Supreme Court 1395 that once the deed executed was vitiated by misrepresentation, then owners is upon the concerned person to establish the plea of misrepresentation. In fact, the register instruments stylized Release Deed which is releasing rights-title and interest of the release without consideration, may operate as transfer by way of gift when the documents clearly shows intention to effect transfer and is signed or on behalf of the releaser and attested by at least two witnesses. (Xerox copy of the judgment is annexed and marked as Annexure-1).In that case, this deed of release is held to be legal and valid document. 34. The Respondent No. 2 Nihar Moitra, mother of the parties died after filing of the written statement and her name was deleted. The Respondent No. 1, 2, 4 and 6 filed their written statements contesting the claim of the appellant mainly on the ground that there is no unity of title and possession between the appellant and the respondents and the appellant has no locus standi to claim partition of the suit property. The Respondent No. 1, 2, 4 and 6 filed their written statements contesting the claim of the appellant mainly on the ground that there is no unity of title and possession between the appellant and the respondents and the appellant has no locus standi to claim partition of the suit property. It was further stated that the suit filed by the appellant is barred under Section 34 of the Specific Relief Act and Section 23 of the Hìndu Succession Act 1956. It was further stated that as matter of fact, the suit property was acquired by the appellant's grandfather Surendra Nath Moitra and after his death, the same devolved upon his son Baidyanath Moitra. Baidyanath Moitra during his lifetime executed a will on 09.02.1968 bequeathing the suit property exclusively to the Respondent No. 1 and after the death of Baidyanath Moitra, which took place on 07.11.1970 and as per the terms of the will of the executed by him in presence of the appellant and the respondents, the Respondent No. 2 became the absolute owner of the suit property and came into exclusive possession of the same and in order to honour the wishes of Baidyanath Moitra, the Respondent No. 1 was acknowledged as absolute owner of the suit properties and as such registered deed of release was duly executed in his favour relinquishing the right, title and interest in his favour and the Respondent No. 1 is the absolute owner with respect to the suit property and got his name mutated in the revenue records. It was further stated that the Respondent No. 1, after investing the earning from his service, married the Respondent Nos. 4, 5 and 6 and he also maintained the appellant in the same manner as can be expected from a brother and there was no action to cause any assault and humiliation by the Respondent No. 1 to the appellant. It was further stated that the Respondent No. 1 being the only son of his father had due respect and regard for his father and he always maintained and supported him. It was further stated that the Respondent No. 1 being the only son of his father had due respect and regard for his father and he always maintained and supported him. It was further stated that the execution and registration of the deed of release was duly admitted by the releasers thereof including the appellant before the District Sub Registrar, Ranchi who visited the house and got the document registered on commission and the releasers of the said document were duly identified by Sanat Kumar Chatterjee, the husband of the Respondent No. 3 would appear from the deed of release dated 16.06.1975 and as such, the Respondent No. 1 has acquired indefeasible right, title, interest and possession over the suit properties and the suit filed by the appellant is hopelessly barred by limitation. It was further stated that as a matter of fact, Respondent No. 1 Soon after the death of his father has all along been keen and desirous to get the appellant married but the appellant despite persuasions made by the Respondent No.1 and 2 never became desirous of marrying herself and leading a conjugal life. It was further stated that the appellant after going through the deed of release voluntarily signed and executed the same and the appellant has no share in the suit property and the appellant has no right to claim a decree for partition and the suit the suit premises being a dwelling house, the appellant cannot claim any share. 35. The Respondent No.3 and 5 filed separate written statement, supporting the case of the appellant stating therein that they have got 1/6th share each in the suit property. It was further stated that the Respondent No. 1 purposely defamed his sisters for some ulterior motives and these respondents never relinquished their right in the suit property. 36. The learned trial court on the basis of the pleadings of the parties framed as many as twelve issues for deciding the suit and the relevant issues are issue nos. (v),(vi), (viii) to (xi) which are as follows:- Issue No. (v) - Is there unity of title and possession between the appellant and the respondents? Issue No. (vi) - Is the suit bad for misjoinder and non-joinder of parties? Issue No. (viii)- Has the appellant legal right to claim partition? Issue No .(ix) - Is the deed of Relinquishment dated 16.06.1975 obtained by fraud? Issue No. (vi) - Is the suit bad for misjoinder and non-joinder of parties? Issue No. (viii)- Has the appellant legal right to claim partition? Issue No .(ix) - Is the deed of Relinquishment dated 16.06.1975 obtained by fraud? Issue No. (x) -Has the Baidyanath Moitra left behind cash and moveable? Issue No. (xi) -Is the appellant entitled to get 1/7th share in the suit property? FINDINGS OF THE TRIAL COURT 37. It is stated that the plea of the appellant that fraud was perpetrated by the Respondent No. 1 in the matter of execution and registration of the deed of release cannot be believed nor there is any cogent evidence on behalf of the appellant and the Respondent No. 3 to 5 that any fraud whatsoever was practiced in the matter of execution and registration of the deed or release dated 16.06.1975, Exhibit A. The allegation regarding fraud is vague. 38. Admittedly, the properties in suit are not the self-acquired properties of the appellant's father. As a matter of fact, the properties in suit were acquired by Surendra Nath Moitra, grand-father of the appellant and the Respondent No. 1 and 3 to 6. After the death of Surendra Nath Moitra, the properties in suit devolved upon his son, Baidya Nath Moitra who out of his Sweet free-will voluntarily executed a will on 09.02.1968 to his only son, Dinanath Moitra, respondent no.1 the brother of his respondent. 39. The Respondent No. 2 to 6 in order to honour the wishes of the appellant's father, Late Baidya Moitra Nath acknowledged the Respondent No.1 as absolute owner with respect to the properties in suit. They also jointly out of their sweet free-will voluntarily without any fraud, coercion, undue influence and misrepresentation executed and registered the Deed of Release in favour of the Respondent No. 1 relinquishing their right, title and interest, if any in the properties in suit. 40. The Respondent No. 1 is the absolute owner with respect to the properties in suit and he is coming in exclusive possession of the same. The Respondent No. 2 is no doubt residing with her son, the Respondent No. 1 in the suit premises as she is an old lady and is being maintained by the Respondent No. 1. 41. The Respondent No.1 is very submissive in nature and holding a very responsible post in the State Bank of India, Ranchi. The Respondent No. 2 is no doubt residing with her son, the Respondent No. 1 in the suit premises as she is an old lady and is being maintained by the Respondent No. 1. 41. The Respondent No.1 is very submissive in nature and holding a very responsible post in the State Bank of India, Ranchi. His behavior has been erratic and unpredictable. After the death of his father, the Respondent No.1 has taken proper care of his mother and sister including this respondent. The Respondent No. 1 after spending quite a large sum of money from his earnings, got the Respondent No. 4, 5 and this respondent married. 42. It is absolutely incorrect that during the last days, Baidya Nath Moitra used to severely tortured by Respondent No. 1. It is also incorrect that for last two to three years, Baidya Nath Moitra was kept confined in a locked room and the key of the lock used to be kept by the Respondent No. 1. The Respondent No. 1 was very obedient to his father and he always took proper care of him. It is misfortunate that the appellant under the instigation of some interested persons has made absolutely false and baseless remarks against his brother. 43. It is absolutely incorrect that Baidya Nath Moitra died leaving behind cash and movables. It is also incorrect that after his death, Respondent No.1 began creating scenes and began threatening that he would commit suicide if his mother and sisters do not give him Power of Attorney to authorize and empower him alone to deal with the estate of Baidya Nath Moitra. 44. The appellant, Respondent No. 2 and Respondent No. 3 to 6 voluntarily out of their sweet free-will, executed and registered the deed of release relinquishing their right, title and interest, if any in the properties in suit in favour of the Respondent No. 1 by virtue of registered of Release dated Deed 16.06.1975. The Respondent No. 1 is the absolute owner with respect to the properties in suit and neither the appellant nor the respondent no. 2 to 6 have any share in the suit properties. The contents of the said Deed of Release were READ BY THE APPELLANT and she having fully understood the same, executed in presence of this respondent. Mr. The Respondent No. 1 is the absolute owner with respect to the properties in suit and neither the appellant nor the respondent no. 2 to 6 have any share in the suit properties. The contents of the said Deed of Release were READ BY THE APPELLANT and she having fully understood the same, executed in presence of this respondent. Mr. Sanat Kumar Chatterjee, the husband of Respondent No. 3 was also identifier of all the executants of the Deed of Release. The contents of the said Deed were also read over and explained by the said Sanat Kumar Chatterjee. The Respondent No. 1 is the absolute owner with respect to the properties in suit. He also got his name mutated in the office of the State of Bihar and the Ranchi Municipality and is making payment of rent and taxes. 45. Moreover, the premises in suit being a residential house, the appellant cannot claim any partition. 46. Further, learned counsel for the defendant/respondent no.5 relied upon the judgment in Kuppuswami Chettiar Vs. S.P.A Arumugam Chettiar and another, reported in AIR 1967 SC 1395 , wherein Hon'ble the Supreme Court has observed as follows : “2. The High Court held, and in our opinion rightly, that Ex.B-1 was not vitiated by misrepresentation and the appellant was well aware of the nature of the deed when he executed it. The appellant somewhat deaf of hearing. But he is wealthy and shrewd money lender and capable of managing his affairs. He took draft of the deed to his own lawyer and after obtaining legal advice, executed it. He himself presented the deed for registration. He received no consideration for the release, but the motive for the release was the pending litigation and the fact that the properties originally belonged to the family of the respondents. Having regard to the release, the respondents immediately applied in the pending suit for removal of the properties from the scope of the sit and the consequential amendment of the plaint. After the execution of the deed, the appellant never asked for accounts, nor cared to ascertain how the respondents were maintaining the properties. In the written statement filed in O.S.No.174 of 1953, he took the plea that the deed of release aid effectively pass title to the outstanding, he did not then say that it was vitiated misrepresentation. After the execution of the deed, the appellant never asked for accounts, nor cared to ascertain how the respondents were maintaining the properties. In the written statement filed in O.S.No.174 of 1953, he took the plea that the deed of release aid effectively pass title to the outstanding, he did not then say that it was vitiated misrepresentation. His present plea that the deed was induced by misrepresentation is an afterthought. In agreement with the High Court, we accept the testimony of respondents witnesses and we reject the evidence of the appellant and P.W.2. The onus is upon the appellant to establish the plea of misrepresentation. He has failed to establish this plea. 4. The question is whether Ex. B-1 on the true construction conveyed properties to the respondents. In T.Mammo Vs. KL. Ramaswami AIR 1966 SC 387 at p.340 this court held : A registered instrument styled a release deed releasing the right, title and interest of the expectant in any property in favour of the releaee as a conveyance, if the document clearly disclose an intention to effect a transfer”. In the present case, the release was without any consideration. But property may be transferred without consideration. Such a transfer is a gift. Under S.123 of the Transfer of Property Act 1882, a gift may be affected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. Consequently, a registered instrument releasing the right , title and interest of the releasor without consideration may operate as a transfer by way of a gift, if the document clearly shows an intention to effect the transfer and is signed by or on behalf of the releasor and attested by atleast two witnesses. Exhibit B-1 stated that the releasor was the owner of the properties. It showed an intention to transfer his title and its operative words sufficiently conveyed the title. The instrument, on its true construction, took effect as a gift. The gift was effectively made by a registered kin instrument signed by the donor and attested by more than two witnesses.” 5. There were two sets of attesting witnesses to Ex. B-1. At first, the deed consisted of four sheets, and it was then attested by eight witnesses. Later, a fifth sheet mentioning the boundaries of the properties was added, and this sheet was attested by four witnesses. There were two sets of attesting witnesses to Ex. B-1. At first, the deed consisted of four sheets, and it was then attested by eight witnesses. Later, a fifth sheet mentioning the boundaries of the properties was added, and this sheet was attested by four witnesses. Five of the first eight witnesses gave evidence at the trial. Counsel submitted that none of the last four attesting witnesses gave evidence and having regard to S.68 of the Indian Evidence Act, 1872, the execution of Ex B-1 was not proved. There os mp force in this contention. The point was not raised in the Courts below. There is nothing to show that any of the last four attesting witnesses was alive, or was subject to the process of the Court during the trial of the suit. The name of one of these witnesses cannot be read and it is not clear whether he figured as a witness at the trial. Moreover, in his deposition, the appellant clearly admitted that he signed Ex. B-1 and the attestors attested the document. We are satisfied that Ex.B-1 was duly proved. 6. Counsel next submitted that a release can only enlarge an existing title of the release and there can be no release in favour of a release who has no interest in the property. He relied on the following observation in Hutchi Gowder Vs Bheema Gowder, 1959-2 mad LJ 324 at p. 337:( AIR 1960 Mad 33 at p 41). A release deed can only feed title but cannot transfer title” and another observation in S.P. Chinnathambiar v. V.R.OP. Chinnathambiar, 1953-2 Mad LJ 387 at p 391 ( AIR 1954 Mad 5 at p8) “Renunciation must be in favour of a person, who had already title to the estate, the effect of which is only to enlarge the right. Renunciation does not vest in a person a title where it did not exist Now, it cannot be disputed that a release can be usefully employed as a form of conveyance by a person having some right or interest to another having a limited estate e.g by a remainder man to a tenant for life, and the release then operates as an enlargement of the limited estate. But in this case, we are not concerned with a release in favour of the holder of a limited estate. But in this case, we are not concerned with a release in favour of the holder of a limited estate. Here, the deed was in favour of a person having no interest in the property, and it could not take effect as an enlargement of an existing estate. It was intended to be and was a transfer of ownership. A deed called a deed of release can, by using words of sufficient amplitude, transfer title to one having no title before the transfer. The cases relied upon by counsel are not authorities for the proposition that the operative words of a release deed must be ignored. In S.P. Cnhinnathambiar's cases 1953-2 Mad LJ 387, the document could not operate as a transfer, because a transfer was hit by S.34 of the Court of Wards Act, and viewed as a renunciation of a claim, it could not vest title in the release. In Hutchi Gowder v. Bheema Gowder case, the question was whether a covenant of further assurance should be enforced by directing the defendant to execute a release deed or a deed of conveyance and the Court held that the defendant should execute a deed of conveyance. These decisions do not lay down that a deed styled a deed of release cannot in law, transfer title to one who before the transfer had no interest in the property.” It is submitted by learned counsel for the respondents/defendants that while admitting the instant second appeal on 13.08.2004, a Co-ordinate Bench of this Court had formulated two substantial questions of law which has already been answered by the trial court and the appellate court, so there is no substantial question of law is left out to be decided, hence this appeal is fit to be dismissed. 47. After hearing both the parties and also going through the pleadings and arguments, both oral and documentary, the written notes of arguments and also the judgments relied upon by the parties and the concurrent findings given by both the courts below, I am of the considered view that the substantial questions of law formulated by a Co-ordinate Bench of this Court while admitting the appeal have already been answered by the courts below in view of the Supreme Court judgments and so, it cannot be said that the findings of both the courts below are perverse in law. No order as to cost. 48. No order as to cost. 48. In the result, this second appeal is dismissed and the judgment and decree dated 24.08.2002 (decree signed on 06.09.2002) passed in Title Appeal No. 106/95 is, hereby, affirmed.