JUDGMENT : (EASWARAN S., J.) The present appeal is preferred by the legal heirs of the original plaintiff aggrieved by the judgment and decree in OS No.720/2010 on the files of the Additional Munsiff Court – I, Kozhikode, as confirmed by A.S.No.15/2015 on the files of the Additional District Court – IV, Kozhikode. 2. The brief facts necessary for the disposal of the appeal are as follows: The plaint schedule property was purchased by the original plaintiff by virtue of Karayma deed bearing No.361/1967 and thereafter, obtained purchase certificate bearing No.299/1974. While so, the original plaintiff in the year 2008 executed a settlement deed bearing No.3558/2008 in favour of the sole defendant on 01.11.2008. Thereafter, the plaintiff realised that he was misrepresented or he was coerced to execute the settlement deed and therefore on 07.04.2010, the plaintiff caused to issue a lawyers notice demanding the defendant to cancel the settlement deed, which was caused to be executed by playing fraud and misrepresentation. It is contended that the defendant, who is none other than the daughter of the original plaintiff, agreed to execute the conveyance deed re-conveying the property covered by the settlement deed and accordingly, entrusted the original settlement deed with the original plaintiff. However, finding that no attempts were made by the daughter to re- convey the property, suit was instituted. The defendant appeared and contested the suit by contending that the suit is not maintainable and that the plaintiff out of love and affection had voluntarily with full knowledge executed the settlement deed bearing No.3558/2008 in respect of the plaint schedule property. It was also contended that the allegation of fraud and misrepresentation is totally false inasmuch as the plaintiff had executed the settlement deed with full knowledge. In support of the contention, the original plaintiff produced Exts.A1 to A3 ((a) & (b)) and examined himself as PW1. On behalf of the defendant, Exts.B1 to B9 documents were produced and DW1 and DW2 were examined. On the basis of the evidence, the Trial Court framed the following issues: “1. Whether the settlement deed was executed by the plaintiff out of misrepresentation and fraud played by the defendant? 2. Whether the plaintiff is entitled to get a declaration as prayed for? 3. On the basis of the evidence, the Trial Court framed the following issues: “1. Whether the settlement deed was executed by the plaintiff out of misrepresentation and fraud played by the defendant? 2. Whether the plaintiff is entitled to get a declaration as prayed for? 3. Relief and costs?” The Trial Court, on appreciation of evidence, found that the original plaintiff could not establish that the settlement deed was executed by way of fraud and misrepresentation. On contrary, the Trial Court on evidence found that the defendant was successful in establishing the execution of the settlement deed by examining DW2, who was a person attached to describe of Ext.A1 deed. It was further found that though the original plaintiff alleged that he was suffering from mental ailment occasionally and that he is a mentally challenged person, no evidence was adduced to prove the same. Thus, on appreciation of material evidence, the Trial Court dismissed the suit. 3. Aggrieved by the dismissal of the suit, the legal heirs of the original plaintiff preferred AS No.15/2015. The First Appellate Court concurred with the finding of fact rendered by the Trial Court and dismissed the appeal, against which the appellants have preferred the present appeal by raising the following substantial questions of law: ”1. Whether the courts below are justified in considering that execution of Ext.A1 is proved by the defendant more so when under Section 68 of the Evidence Act Ext.A1 cannot be used as evidence since none of the alleged attesting witnesses as contemplated by Section 123 of the Transfer of Property Act were examined? 2. Are not the reasons stated by the courts below to conclude that Ext.A1 was not vitiated by fraud and misrepresentation are perverse and unsustainable? 3. Are the courts below justified in not applying the presumptions under Sections 114 and 115 of the Indian Evidence Act in favour of the plaintiff?” 4. Heard, Sri.K.M.Firoz – learned counsel appearing for the appellants and Sri.P.A.Harish – learned counsel appearing for the respondent. 5. The learned counsel for the appellant would contend that Ext.A1 is vitiated inasmuch as the same was not executed by the defendant daughter by playing fraud and misrepresentation. Heard, Sri.K.M.Firoz – learned counsel appearing for the appellants and Sri.P.A.Harish – learned counsel appearing for the respondent. 5. The learned counsel for the appellant would contend that Ext.A1 is vitiated inasmuch as the same was not executed by the defendant daughter by playing fraud and misrepresentation. Placing reliance on Section 16 of the Indian Contract Act, 1872, the learned counsel would contend that if an allegation of fraud or misrepresentation or undue influence is raised, the burden is on the person who is seeking to sustain the document to prove that the same was not executed otherwise. Further reliance is placed on proviso to Section 68 of the Indian Evidence Act, 1872, and contended that inasmuch as a plea of fraud and misrepresentation is raised, the burden was on the defendant to prove that the deed was not executed by playing fraud or misrepresentation. 6. On the other hand, Sri.P.A.Harish – learned counsel appearing for the defendant – respondent, would contend that unlike in a case of a will, which requires to be proved in terms of Section 68 of the Indian Evidence Act, a settlement deed stands on a different pedestal altogether. He further pointed out that the settlement deed is signed by the plaintiff himself and the present suit is peculiar in nature inasmuch as the plaintiff himself is seeking to cancel the deed and therefore, the burden of proof is more on the plaintiff to establish that the execution of the deed is vitiated. A negative burden cannot be shifted to the shoulders of the defendant to disprove the contents of Ext.A1. It is further pointed out that since the original plaintiff is no longer alive, the plea of undue influence is not available to the legal heirs of the original plaintiff. 7. I have considered the rival submissions raised across the Bar. 8. On a perusal of Ext.A1 settlement deed, it is clear that the plaintiff had reserved his life interest over the property during his life time. Therefore, the necessary corollary is that after the death of the plaintiff, the property vests with the defendant - daughter in full. 7. I have considered the rival submissions raised across the Bar. 8. On a perusal of Ext.A1 settlement deed, it is clear that the plaintiff had reserved his life interest over the property during his life time. Therefore, the necessary corollary is that after the death of the plaintiff, the property vests with the defendant - daughter in full. The argument of the learned counsel for the appellants that the burden is on the defendant to prove the contents of Ext.A1 cannot be appreciated, since a reading of proviso to Section 68 itself shows that it shall not be necessary to call the addressing witnessing proof of execution of any document not being a will. Therefore, the reliance on the provisions of Section 68 of the Indian Evidence Act is of no avail to the appellant. 9. Still further, the evidence adduced in the case would reveal that the defendant, out of abundance of caution, had taken care to examined DW2, a person attached to the scribe who prepared Ext.A1. The evidence of DW1 would clearly impeach the claim of the appellant. Though DW1 was extensively cross examined, the original plaintiff could not solicit anything contrary to the contents of Ext.A1 in order to prove his case that Ext.A1 was executed under undue influence and coercion. 10. Further question as to whether the elements of undue influence or fraud or misrepresentation is present in the present case or not, has been appreciated by the Trial Court on the basis of evidence on record. The First Appellate Court has also appreciated the evidence and both courts have concurrently found that the evidence adduced by the plaintiff is lacking in the present case in order to disprove the contents of Ext.A1. It is true that the appreciation of evidence, if found to be perverse, can be a ground to entertain an appeal under Section 100 of the Code of Civil Procedure, 1908. However, it is pertinent to note that when the appeal was admitted to file, this Court did not consider it appropriate to frame substantial question of law. 11. On a consideration of the entire evidence on record and also considering the impact of proviso to Section 68, this Court holds that Ext.A1 is not required to be proved by the defendant in terms of Section 68 of the Indian Evidence Act. 11. On a consideration of the entire evidence on record and also considering the impact of proviso to Section 68, this Court holds that Ext.A1 is not required to be proved by the defendant in terms of Section 68 of the Indian Evidence Act. Admittedly, Ext.A1 settlement deed has come into effect and going by the contents of the same, wherein it is specifically written that the possession of the plaint schedule property has been handed over to the daughter – defendant and the defendant is free to carry out the mutation and also change in the ‘Thandaperu’ in respect of the property. Viewed in the totality of the facts and circumstances, this Court is not persuaded to hold that the courts below has erred in dismissing the suit and the appeal. Accordingly, the questions of law framed by this Court while admitting the appeal is answered against the appellant and the appeal fails. The appeal is therefore dismissed.