1. The plaintiff in O.S.No.59/2005 is the appellant in these appeals. The suit was instituted for partition and was dismissed on the ground that the plaintiff had not sought for a declaration that Exts.B1 and B2 settlement deeds as void or has not sought for the cancellation of the same, though the trial court found that Exts.B1 and B2 were executed by way of fraud and impersonation. Thus plaintiff was non-suited because of his failure to seek the consequential relief. Two appeals were preferred against the findings of the trial court, one by the plaintiff and the other by defendants 5 & 6. The first appellate court in the appeal confirmed the dismissal of the suit, but reversed the findings as regards the validity of the settlement deeds Exts.B1 and B2 and found them to be genuine and hence, the present appeals.

2. Initially, the plaintiff had preferred only one appeal, that is against the dismissal of A.S.No.34/2012, which was filed by him before the Sub Court, Kannur. But later, an objection was raised regarding the maintainability of the second appeal in the light of the fact that the judgment in A.S.No.37/2012 having become final. Thus, the appellant preferred R.S.A.No.379/2025 with an application for condonation of delay, which was allowed by order dated 19.12.2025 and thus, these appeals are taken up for final hearing.

3. The brief facts necessary for the disposal of these appeals are as follows:

                  3.1. The plaint schedule property originally belonged to one Ponden Kalliani. Kalliani had one brother named Kannan and one sister named Chirutha. Kalliani died unmarried and issueless and on the death of Kalliani, her right over the plaint schedule property devolved upon the plaintiff and defendants 1 to 4, being the children of Chirutha. According to the plaintiff, he and defendants 1 to 4 are entitled to get 1/5 share each in the plaint schedule property. The plaintiff approached the defendants for getting the plaint schedule property partitioned, but they refused the partition and hence, the suit for partition.

                  3.2. The defendants 5 to 7 resisted the suit by contending that, though the property belonged to Ponden Kalliani, she had executed Settlement Deed Nos.471/2003 and 472/2003 in favour of defendants 5 and 6 respectively and therefore, neither the plaintiff nor the defendants 1 to 4 have any right over the property. In the light of the contentions raised by the defendants 5 to 7, the plaintiff amended the suit raising a challenge to the execution of Document Nos.471/2003 and 472/2003. According to the plaintiff, she was totally unconscious and bedridden in the year 2003 and hence she was unable to executed any document. The defendants 5 to 7 filed additional written statement resisting the claim of the plaintiff in the amended plaint.

                  3.3. To prove that the settlement deeds were not executed by Kalliani, the plaintiff filed I.A.No.1272/2007 for summoning of documents from the Panchayath to show that Kalliani was in receipt of pension and that she had received it by affixing her thumb impression. I.A.No.1754/2007 was filed for sending the settlement deeds for expert opinion. In pursuance to the said applications, Ext.X1 series were produced by the Pallikkunnu Grama Panchayath. Exts.B1 and B2 documents were sent for comparison of the thumb impression with Ext.X1 series, and Ext.X3 expert opinion report and Exts.X4 and X4(a) comparison charts were filed by the handwriting expert of the Fingerprint and Handwriting Analysis Bureau, Calicut. According to the fingerprint expert, the thumb impression in the settlement deeds is not similar with the thumb impression in one of the acknowledgment cards produced for comparison. Once the report was filed, the parties went to trial raising their respective contentions with regards to the acceptability of the said report.

                  3.4. On behalf of the plaintiff, Exts.A1 to A12 documents were produced and PW1 to PW4 were examined. On behalf of the defendants, Exts.B1 to B9 were produced and DW1 to DW5 were examined. The trial court, on appreciation of the oral and documentary evidence, though concluded that Exts.B1 and B2 settlement deeds are not genuine, since it does not contain the true fingerprint of deceased Kalliani, refused to grant any relief to the plaintiff, since he has not sought for any declaration that the settlement deeds are void. Accordingly, the suit was dismissed, against which the appeals were carried forward and the appeal preferred by the defendants 5 and 6 was allowed and the appeal preferred by the plaintiff was dismissed.

4. On 19.12.2025, this Court admitted R.S.A.No.740/2013 on the following substantial questions of law raised in the memorandum of appeal:

                  i. In the facts and circumstances of the case were the trial court, despite entering a finding that Ext.B1 & B2 are vitiated by fraud and impersonation, justified in finding that the appellant is not entitled to a decree for partition on the ground that the appellant has failed to seek declaration of title after paying the requisite court fee.

                  ii. Were the first appellate court below justified in discarding the expert evidence of PW4 finger print expert and accepting the interested testimony of DW 1 to 4.

                  iii. In the facts and circumstances of the case was the first appellate court justified in taking the view that X1 series obtained from the panchayath are not reliable for arriving at a conclusion in regard to the finger print in Ext.Bl & B2 title deeds.

                  iv. In the facts and circumstances of the case was the court below justified in not passing any orders on the challenge made by the appellant against the finding of the munsiff court that the appellant is not entitled to decree for partition on the ground that he failed to seek declaration of title.

                  v. Was the first appellate court justified in dismissing the appeals A.S.No.34/2012 filed by the appellant and decreeing the A.S.No.37/2012 filed by the defendants 5 & 6.

                  On 19.12.2025, this Court admitted R.S.A.No.379/2025 on the following substantial questions of law raised in the memorandum of appeal:

                  i. Were the First appellate court below justified in reversing the finding of the trail court that the Exhibit Bl andB2 settlement deeds were not executed by Kalliani and the documents were created by playing fraud and impersonation.

                  ii. Were the first appellate court below justified in discarding the expert evidence of PW4 finger print expert and accepting the interested testimony of DW 1 to 4.

                  iii. In the facts and circumstances of the case was the first appellate court justified in taking the view that X1 series obtained from the panchayath are not reliable for arriving at a conclusion in regard to the finger print in Ext.Bl & B2 title deeds.

                  iv. Was the first appellate court justified in decreeing the appeal A.S. No. 37/12 filed by the defendants 5 & 6.

5. Heard, Adv.P.M.Pareeth – learned counsel appearing for the legal heirs of the appellant and Adv.C.P.Peethambharan – learned counsel appearing for the respondents.

6. Adv.P.M.Pareeth – learned counsel appearing for the legal heirs of the appellant, contended that the finding of the trial court that the appellant ought to have sought for declaration that Exts.B1 and B2 settlement deeds are void is per se unsustainable. It is not the requirement of law that once a document is found to be void, the plaintiff is required to seek for setting aside the same or to seek a declaration to that effect. The trial court failed to consider the scope of Section 34 of the Specific Relief Act, 1963. As regards the sustainability of Exts.B1 and B2 settlement deeds, it is the specific case of Adv.P.M.Pareeth that, in the light of Ext.X3 report, it is beyond doubt that the settlement deeds were executed through impersonation. Moreover, when a dispute regarding the execution of Exts.B1 and B2 was raised that there is prima facie evidence to doubt the genuineness of Exts.B1 and B2, it was incumbent upon the defendants to have examined the attesting witnesses to the settlement deeds. Though DW4 was examined, it is none other than the son-in-law of the 5th defendant, who is a beneficiary to the settlement deeds and therefore, the evidence of DW4 can only be viewed as an interested testimony and the first appellate court clearly erred in accepting the evidence of DW4 to hold that the defendants have discharged their burden under Section 68 of the Indian Evidence Act, 1872.

7. Per contra, Adv.C.P.Peethambharan – learned counsel appearing for the respondents, contended that the findings rendered by the first appellate court does not call for any interference. According to the learned counsel, the report of the fingerprint expert is not absolute and the first appellate court had correctly reappreciated the evidence and held otherwise. Ext.X3 cannot be accepted because, it is not based on any admitted finger prints and that once the expert himself has formed an opinion that among Ext.X1 series only one of the acknowledgment cards could be taken as a sample for testing the finger print of deceased Kalliani, the report ought not have been accepted by the trial court. It is the further case of the respondents that Ext.X1 series was manipulated by the plaintiff with the help of the Panchayath authorities and therefore, no sanctity could be attached to Ext.X1 series. Further it is pointed out that, since the report of the expert is itself a shady document, the same cannot be accepted in evidence by the court. In support of his contention, he relied on the following decisions : Biju Kumar v. State of Kerala [2022 (1) KHC 463], Thiruvengadam Pillai v. Navaneethammal & Anr. [(2008) 4 SCC 530], Rudrayani Devaki v. Rajeswari [2018 (3) KLT 516], Ramesh Chandra Agrawal v. Regency Hospital Limited & Ors. [(2009) 9 SCC 709], Ponnan v. Kuttipennu [1987 (2) KLT 455] and Pathu v. Katheesa Umma [1990 KHC 560].

8. I have considered the rival submissions raised across the Bar and have perused the judgments rendered by the courts below and also the records of the case.

9. Before proceeding to analyse the respective contentions in these appeals, this Court must first decide as to whether, when a settlement deed is found to be void, is there a requirement of law that the plaintiff must seek for the cancellation of the same, or should challenge the same by claiming a separate declaration. The trial court held that, in view of the fact that the plaintiff has not claimed any declaration that the documents to be void, nor sought for cancellation of the same, the relief cannot be granted. But then, the first appellate court chose not to consider the said plea because it found Exts.B1 and B2 documents to be valid. But then, before going into the question as to whether Exts.B1 and B2 could be sustained in the light of the conflicting claims of the parties, it will be worthwhile to mention that, the law as regards the requirement to claim a declaratory relief in respect of a void document is no longer res integra in the light of the decision of the Hon’ble Supreme Court in Kewal Krishnan v. Rajesh Kumar & Ors. [(2022) 18 SCC 489], wherein it was held that, if a document is found to be void, the same need not be challenged by claiming a separate declaration.

10. In Prem Singh & Ors. v. Birbal & Ors. [2006 (5) SCC 353], the Hon’ble Supreme Court held that, though a registered document carries a presumption, the same is a rebuttable presumption and a void ab initio document need not be set aside since the document would be a nullity.

11. In the light of the principles laid down by the Hon’ble Supreme Court as above, this Court has no hesitation to hold that the finding of the trial court that the plaintiff should have sought for a declaration or cancellation of Exts.B1 and B2 settlement deeds cannot be sustained.

12. As regards the respective claims of the parties on the acceptability of Ext.X3 report, it must be noted that the appellants have got a specific case that the report of the fingerprint expert under Ext.X3 must be taken in its true value and the court cannot hold otherwise.

13. In Jaspal Singh v. State of Punjab [(1980) 1 SCC 487], interpreting Section 45 of the Indian Evidence Act, 1872, the Hon’ble Supreme Court held that the science of identifying the thumb impression is an exact science and does not admit any mistake. The principles laid down in the above decision is extensively relied on by the learned counsel for the appellants to drive home the point that, in the absence of any contra evidence, Ext.X3 must by given probative value and that the trial court had correctly appreciated the facts and evidence in the case and concluded that Exts.B1 and B2 are not genuine.

14. Per contra, the specific case of Adv.C.P.Peethambharan - learned counsel appearing for the respondents is that, Ext.X3 cannot be taken in its face value because of the fact that the expert himself was not sure as to whether the thumb impression of Kalliani was matching with Ext.X1 series. According to the learned counsel for the respondents, when a vague/smudgy/unclear thumb impression is sent for expert opinion and a report solicited based on the said thumb impression, cannot be accepted as a piece of evidence and in support of his contention, he placed extensive reliance to the decision of the Hon’ble Supreme Court in Thiruvengadam Pillai v. Navaneethammal & Anr. [(2008) 4 SCC 530].

15. In C. Kamalakkannan v. State of Tamil Nadu Represented by Inspector of Police C.B.C.I.D. Chennai [(2025) 4 SCC 487], the Hon’ble Supreme Court examined the extent to which the report of an handwriting expert can be relied on. Paragraph 13 is extracted here under:

                  “13. The locus classicus on this issue is Murari Lal v. State of M.P., wherein this Court laid down the principles with regard to the extent to which reliance can be placed on the evidence of an expert witness and when corroboration of such evidence may be sought. The relevant paragraphs are extracted hereinbelow: (SCC pp. 707-709, 711-12, paras 4, 6 & 11))

                  "4. We will first consider the argument, a stale argument often heard, particularly in criminal courts, that the opinion-evidence of a handwriting expert should not be acted upon without substantial corroboration. We shall presently point out how the argument cannot be justified on principle or precedent. We begin with the observation that the expert is no accomplice. There is no justification for condemning his opinion-evidence to the same class of evidence as that of an accomplice and insist upon corroboration. True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses - the quality of credibility or incredibility being one which an expert shares with all other witnesses - but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of finger-prints has attained near perfection and the risk of an incorrect opinion is practically non-existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. But that is a far cry from doubting the opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case, howsoever the opinion may be backed by the soundest of reasons. It is hardly fair to an expert to view his opinion with an initial suspicion and to treat him as an inferior sort of witness. His opinion has to be tested by the acceptability of the reasons given by him. An expert deposes and not decides.…

                  * * *

                  6. Expert testimony is made relevant by Section 45 of the Evidence Act and where the court has to form an opinion upon a point as to identity of handwriting, the opinion of a person "specially skilled" "in questions as to identity of handwriting" is expressly made a relevant fact... So, corroboration may not invariably be insisted upon before acting on the opinion of an handwriting expert and there need be no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard-and-fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it.

                  * * *

                  11. We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallised into a rule of law, that opinion-evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted.”

16. In Chennadi Jalapathi Reddy v. Baddam Pratapa Reddy (Dead) through Legal representatives and another [(2019) 14 SCC 220], the Hon’ble Supreme Court considered the acceptability of the expert evidence qua the evidence of attesting witness. Paragraphs 7 to 9 are extracted hereunder:

                  “7. From the discussion of the High Court in arriving at this conclusion, we find that it has not assigned any valid reason for disbelieving the attesting witnesses PWs 2 and 3. In fact, with respect to their evidence, the High Court made certain observations which are against the evidence on record. Similarly, with respect to PW 1, the High Court observed that he had not deposed as to the presence of the third attestor, Krishna Murthy, at the time of execution of the agreement of sale. However, it is clear from the evidence of PW 1 that he has specifically deposed about the presence of Krishna Murthy at that time. It was also wrongly observed by the High Court that PWs 1 and 2 are silent as to the time and place of the execution of the agreement. However, in his examination-in-chief, PW 2 has clarified that the first defendant executed this agreement at the suit schedule house, at a time when he was residing there and the plaintifi was residing in the western side of the house, etc. From the aforementioned facts, it is clear that the High Court disbelieved the evidence of the plaintifi (PW 1) and the attestors (PWs 2 and 3) on mere assumptions and wrong reasons.

                  8. In any case, to satisfy our conscience, we have gone through the evidence of PWs 1, 2 and 3. As rightly observed by the trial court, there is no reason to disbelieve these witnesses, whose evidence is consistent, cogent and reliable. Though they were subjected to lengthy cross-examination, nothing noteworthy has been brought out from their deposition to discard their evidence. Thus, the evidence of PWs 1, 2 and 3 fully supports the case of the plaintifi and in our considered opinion, the High Court was not justified in rejecting their evidence.”

                  9. As mentioned supra, the High Court mainly relied upon the opinion evidence of DW 2, the handwriting expert, who opined that the signature of the first defendant on the agreement of sale, Ext. A-1 did not tally with his admitted signatures.

17. The question that now falls for consideration is whether Ext.X3 report can be accepted or not. Though, it is seriously disputed by the respondents that Ext.X1 series could not have formed the basis of examination by the finger print expert, on the ground that these are not admitted finger prints of deceased Kalliani, this Court finds that, merely because the defendants have disputed Ext.X1 series to be the thumb impressions of deceased Kalliani, that by itself will not suffice the cause. The denial of the thumb impression of Kalliani in Ext.X1 series must be certainly viewed as a motivated denial because, the defendants did not have a case that she was not in receipt of any pension from the Panchayath. Though there is a vague statement by DW3 in his cross examination that Kalliani used to affix her signature while receiving the pension, there is no need on record to suggest that Kalliani used to affix her signature in any document. That be so, it must be certainly held that the defendants had failed to substantiate their claim that, apart from affixing the thumb impression, Kalliani used to affix her signature also.

18. Moreover, Ext.X1 series were summoned from the Panchayath and therefore, the defendants cannot sustain their plea that Ext.X1 series of thumb impressions were manipulated by the plaintiff. Moreover, the defendants did not make available any admitted thumb impressions of deceased Kalliani, if they were sure about the fact that Ext.X1 series were not actual thumb impression of deceased Kalliani.

19. As regards the acceptability of Ext.X3 report, it is true that the expert had given a report based on his knowledge in the particular science. With regard to the question as to whether the court could accept the said report or not, it will be wholly impermissible to the court to discard the said report merely because some of the samples which were sent for examination was smudgy or not clear. At any rate, it is beyond doubt that one of the acknowledgment cards containing the thumb impression was clear enough for the expert to verify with the thumb impression available in Exts.B1 and B2. The larger question is whether there were enough materials before the courts to discard Ext.X3 report. It must be remembered that the trial court chose to accept the report based on the reasoning that the thumb impressions in Ext.X1 money order receipts and the thumb impressions of Kalliani in Exts.B1 and B2 settlement deeds were properly verified by the finger print expert.

20. Let us now examine whether there were sufficient materials before the courts to conclude otherwise. Section 123 of the Transfer of Property Act, 1882, requires a settlement deed to be attested by two attesting witnesses. Section 68 of the Indian Evidence Act, 1872, requires that, any document which requires to be supported by attesting witnesses, other than Will, must be proved by examining at least one attesting witness, if the execution is denied.

21. The respondents, however, had a specific plea that execution of the settlement deeds cannot be disputed by the plaintiffs, but can be denied only by the executant and only if the executant has denied the same, the requirement of proviso to Section 68 of the Indian Evidence Act, 1872, would come into effect.

22. However, this Court is unable to accept the aforesaid contention because, as soon as the defence in the suit was delivered, the plaintiff had by amendment challenged the execution of the gift deed on the ground of impersonation. Whatever possible steps were available to prove the factum of impersonation was taken by the plaintiff. As against the said plea, the defendants examined one of the attesting witnesses to comply with the mandate of proviso to Section 68 of the Evidence Act, 1872. The attesting witness is none other than the son-in-law of the beneficiary of the gift deed. After examining the attesting witness, the respondents cannot contend that it is not obligatory on their part to examine the attesting witness to satisfy the mandate of Section 68 of the Indian Evidence Act, 1872.

23. In fact, when the first appellate court was satisfied that the mandate of Section 68 of the Indian Evidence Act, 1872, is complied and that the sustainability of the said finding is under challenge, it is not possible for the respondents to contend to the contrary.

24. Where there is enough materials to doubt the genuineness of the thumb impression of deceased Kalliani in Exts.B1 and B2 settlement deeds, the examination of the attesting witness becomes crucial. The alternate contention that the registration of document raises a presumption regarding its validity has no relevance in this case, since the manner of execution and the registration itself is under a cloud.

25. Coming to the evidence of DW4 and DW5, the falsity of the claim set up by the defendants is writ large on the face of the record. One of the attesting witnesses, DW4 is none other than the son-in-law of the 5th defendant, who is a beneficiary to Ext.B1. Therefore, it is beyond cavil that he has played a crucial role in getting the document executed. Moreover, the identifying witness, who was examined as DW5 and who stated that he had identified Kalliani’s signature in Exts.B1 and B2, also is not helpful for the defendants because, there is no clear indication given by him to show that Kalliani had affixed the signature in front of the Registrar.

26. It is crucial to note that, if the defendants had a case that Exts.B1 and B2 were genuinely executed, they could have summoned the Registrar before whom the documents were executed. The trial court disbelieved the versions of DW5 and DW4 and found that, in the light of the evidence of these witnesses, the suspicious circumstances surrounding the execution of the settlement deeds has not been discharged by the defendants.

27. The further question is as to whether the first appellate court could have reached a different conclusion altogether. A reading of the judgment of the first appellate court shows that, the first appellate court has no doubt noted the fact that one of the attesting witnesses to the settlement deeds is the son-in-law of the 5th defendant, who is a beneficiary to the settlement deed. Under law, there is no prohibition of a near relative to be an attesting witness. But the further question is whether, in such circumstances, his evidence is acceptable. In the absence of any contra evidence and when the defendants relies heavily on the oral testimony of DW4, the son-in-law of the 5th defendant, who is the beneficiary of the gift deed, his testimony qualifies as an interested testimony. In the absence of any other evidence, this Court is left with no other alternative but to conclude that the defendants have not discharged the burden under proviso to Section 68 of the Indian Evidence Act, 1872.

28. Read in cumulative along with the Ext.X3 report, when the trial court chose to disbelieve the evidence, the first appellate court could not have substituted its finding because it chose to entertain a different opinion altogether. Though the first appellate court has a power to reappreciate the evidence under Section 96 of Code of Civil Procedure, 1908 (CPC), the first appellate court cannot come to a different conclusion because it did not agree with the findings of the trial court. In other words, the power under Section 96 of the CPC cannot be used to substitute its findings. Thus, this Court is inclined to conclude that the first appellate court erred egregiously in revisiting the findings of the trial court and in concluding that Exts.B1 and B2 are genuine documents.

29. Before concluding, this Court must also address one pertinent issue raised on behalf of the respondents that Ext.X3 report was on the basis of the thumb impression which was not admitted by the defendants. When the defendants resisted Ext.X3 report on the ground that it is not based on any thumb impression, they have no case that they have provided any such thumb impression of deceased Kalliani, nor they do have a case that Kalliani used to affix her signature on the money order receipts. This leads to a conclusion that the defendants had a lot to conceal before the trial court. Therefore, the argument raised by the learned counsel for the respondents that Ext.X3 has to be discarded for want of admitted thumb impression of deceased Kalliani has no sustenance.

30. In the light of the above discussions, this Court is inclined to answer the substantial questions of law as follows:

                  RSA No.740/2013

                  i. In case of a void document, there is no requirement to seek for a prayer of setting aside the document. The document becomes void ab initio.

                  ii. The first appellate court was not justified in discarding the expert evidence of PW4 finger print expert and accepting the interested testimony of DW1 to 5.

                  iii. Ext.X1 series obtained from the Panchayath are certainly reliable for arriving at a conclusion with regard to the finger print in Exts.Bl & B2 title deeds.

                  iv. The relief for partition cannot be declined on the ground that plaintiff failed to seek for declaration that Exts.B1 and B2 are void.

                  RSA No.379/2025

.                 In view of the answers given by this Court to the substantial questions of law framed in the connected appeal, it will suffice if this Court orders that the same answer will govern the substantial questions of law in this appeal also.

                  31. Resultantly, the judgment of the Sub Court, Kannur, in A.S.Nos.34/2012 & 37/2012 affirming the judgment in O.S.No.59/2005 on the files of Principal Munsiff Court, Kannur, is reversed. The dismissal of O.S.No.59/2005 is thus set aside and O.S.No.59/2005 will stand decreed as prayed for. A preliminary decree is passed by ordering the plaint schedule property be divided by metes and bounds into 5 equal shares and the plaintiff is allotted 1/5 share over the plaint schedule property. The appellants are entitled to cost throughout and shall be borne out of the estate.

                  Ordered accordingly.