4. Learned counsel appearing for appellant was heard.

5. Argument of learned counsel was that a settlement deed is to be proved as provided under Indian Evidence Act and by examining DW2, the attesting witness, execution of Ext.B7 registered settlement deed was proved and courts below should not have relied on minor discrepancies and disbelieved the evidence and therefore findings of courts below are perverse and are to be set aside. Learned counsel also argued that Ext.A3 final decree shows that property allotted only to Kamala and not to respondents 1 to 8 and appellant and so findings of courts below that it was jointly allotted  5 to Kamala and others is unsustainable. According to learned counsel appearing for appellant, the substantial question of law involved in the appeal is whether courts below were justified in ignoring Ext.B7 registered settlement deed while upholding Exts.B12 and B13 sale deeds executed by appellant and granting a preliminary decree ignoring the allotment made under Ext.A3 final decree.

6. Ext.A1 preliminary decree and Ext.B1 judgment and Ext.A2 judgment in the final decree application along with Ext.A3 final decree in O.S.53/1983 establish that plaint A schedule property was in fact allotted not to deceased Kamala individually but to the group consisting of Kamala and her children, including plaintiff and defendants 1 to 8. Therefore, for the error committed in the final decree that allotment was to Kamala without specifying that allotment was for Kamala and her children, appellant is not entitled to contend that allotment was only to Kamala individually, Exts.A1 and A2 conclusively establish that shares were jointly allotted to Kamala and defendants 1 to 8. Courts below rightly found that plaint A schedule property was obtained not by Kamala alone but by Kamala and her children.  6

7. Case of appellant is that under Ext.B7 settlement deed 3.25 cents was gifted by Kamala in favour of appellant. Execution of Ext.B7 was denied by plaintiff. Appellant examined himself as DW1 and 8th defendant as DW2. According to DW1 he was not present at the time of execution of Ext.B7. To prove Ext.B7, DW2 the attesting witness was examined. Learned Munsiff and learned Sub Judge appreciated evidence of Dws.1 and 2 in the proper perspective. Evidence of DW1 establish that he was not present at the time when gift deed was allegedly executed. Though DW2 was one of the attestors to Ext.B7, his evidence does not establish that gift deed was executed by the deceased Kamala in his presence and in the presence of other attestor. Learned Munsiff and learned Sub Judge found that as per the evidence of DW2 Advocate Shankaranarayana Adiga and the scribe of Ext.B7 was present at that time. Courts below found that when the evidence of DW2 was found unreliable to prove execution, appellant should have examined Advocate Sankaranarayana Adiga or the scribe who were allegedly present at that time. On appreciation of evidence both the courts below found that on the evidence of DW2, execution of Ext.B7 was not proved. Though learned counsel appearing for appellant vehemently argued that  7 appreciation of evidence was perverse, on going though the judgments, I cannot agree with the submission. Evidence of DW2 is insufficient to prove execution of Ext.B7. Even according to DW2 when an advocate was present at the time of alleged execution apart from the scribe the non examination of advocate or scribe is fatal. It is more so, when Ext.B7 recites that appellant is depending on the mother and because of the love and affection property was settled in the name of appellant her son. Evidence establish that out of the children of the deceased Kamala, appellant alone was a government employee and others are agricultural workers. In such circumstances, courts below rightly held that execution of Ext.B7 was not proved. I find no substantial question involved in this appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR,

JUDGE.