settlement deed

Querist : Anonymous (Querist) 15 January 2010 This query is : Resolved
My Aunt and her children who are staying outside the country had been bequeathed with landed property in the village by way of a registered settlement deed in the year1975 by her brother and mother jointly.
The property initially had come jointly to the share of her brother and mother in 1966 by a family partition deed( her brother was a minor then)along with other properties.There were other members of the family in this partition deed. After recieving the present disputed property the same was developed by way of coconut plantation by my aunt through her other relatives,all these years .Her mother expired couple of years back. All these years the revenue record (ie RTC/katha in karnataka) was not changed( mutated) by my aunt as she was not familiar with these matters and had left everything in the care of mother and relatives,and the RTC was in her mothers name only. When she became aware of that recently in 2008, she planned for change of RTC. Unfortunately then she realised that the original settlement deed is found to be lost. As such she had to obtain a certified copy of the registered settlement deed and apply for the change in RTC with the tahsildar along with this certified copy. The tahsildar issued notice to her brother as per practice and her brother suddenly sprang a surprise filing his objection saying that he never was a party in the settlement deed of 1975 and the document is fraudulent and concoted. His objection were however overruled by the tahsildar and he was suggested to move to civil court for his grievance if any.
The brother now has moved to the civil court and has obtained a stay exparte preventing my aunt and her children from alienating the property and is challenging the settlement deed
and seeking declaration of the settlement deed as fraudulent,concocted,void and not valid and binding on himself and also seeking partition of the said property and for allotment of half share in the said property.
My aunt is relying on me to take up the legal problem.We have engaged a lawyer in the town near the village and he is saying in the absence of the original settlement deed it would be a difficult matter to handle.

I shall be greatful if some of you would advise us as to how to tackle the issues legally and reference to similar cases.
with regards
prakash

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Raj Kumar Makkad (Expert) 15 January 2010
Try to traceout the original deed bt even in the absence of that deed it is not impossible to prove the case of your aunt. Stay is not bad. You should pursue your case vigorously.

R.R. KRISHNAA (Expert) 15 January 2010
Well as per evidence act (section 90) a document which is 30 years old is unquestionable and is valid. Since the settlement deed is more than 30 years old, the deed is valid and it is registered. You can argue this ground and win your case. (please read section 90 of Indian Evidence Act)

N RAMESH. (Expert) 16 January 2010
I agree with Mr.Raj Kumar Makkad.

Section 90 of evidence act gives only a presumption as to the due execution of the documents and it is rebuttable. This presumption is available only to the original documents not to the certified copies.

Querist : Anonymous (Querist) 17 January 2010
Dear sirs,
Thank you for the valuable inputs and I welcome any further inputs.
A lawyer friend with whom I interacted since then opined and raised the following points.
1. The brother has sought half share only and has not sought any share in the supposed share of the now disceased mother's portion of the property.( Mother has four more children other than these two). This means that he has admitted the mothers part of the settlement deed.
2.The case is to be set aside on account of delay and laches.
3. As the brother has alleged the fraud and concoction,fabrication etc the onus of prooving the same is on him. He has accepted the presence of the document and does not deny it.(CPC order6 rule4)
4. Heis asking for a declaration of cancellation of the settlement deed and as such section 15 to section 18 of contract act is applicable.
5.He has not claimed the entire cancellation of the settlement deed and has sought cancellation of his part of settlement deed. This is further confirmed by the fact that all the legal heirs of his disceased mother(i.e his other sisters) as party to the suit.Section 32 of specific relief actis applicable. That he has to prove this document null and void and after that only he can seek partition.
Could you please comment on these observations.
Rgds
Prakash

settlement deed

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