dated 16.06.1967 was not produced on record of the trial
Court, but the gift deed produced has been held to be
proved by the lower appellate Court and it is marked as
Exh.47. I have gone through the written statement filed by
the defendants, in which there is denial of execution of such
gift deed for want of knowledge. There is no other plea
raised in respect of it by the defendants. Mere denial of the
execution of such document for want of knowledge, cannot
put the validity or correctness of such document as an issue
in the suit. Similarly, mere denial of execution of Will deed
would also not does put the correctness or legality of such
Will in issue, in the suit. After going through the pleadings of
the parties, evidence led and the findings recorded by the
Courts below, I would proceed on the footing that both these
documents i.e. gift deed at Exh.47 and the Will deed at
Exh.58 have been proved and I do not find any reason to
refer to various decisions cited by the learned counsel Shri
Sohoni for the appellant/defendants, for his proposition that
in the absence of permission to lead secondary evidence and
mere marking of documents as exhibit would not mean that
the document has been proved or has become admissible in
evidence. The substantial question of law framed by this
Court at Sr. No.(i), therefore, does not at all survive.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL NO. 531 OF 2003
Datta Shankar Unhale,
Vs
Gokarnabai w/o Rajaram Unhale,
CORAM: R. K. DESHPANDE, J.
DATE : 11thAUGUST, 2016 .
Citation: 2016(5) ALLMR 886
1] The trial Court dismissed Regular Civil Suit No.
327 of 1999 (old Special Civil Suit No. 406 of 1996) on
10.04.2000 for passing a decree for rectification of instrument
i.e. gift deed dated 16.06.1967 executed by one Sadashiv in
favour of his daughterinlaw and for possession of the suit
property alongwith future mesne profit. The lower appellate
Court allowed Regular Civil Appeal No. 152 of 2000 by its
judgment and order dated 30.07.2003 and the suit has been
decreed after setting aside the decision of the trial Court.
The lower appellate Court granted a decree for rectification of
gift deed dated 16.06.1967 and directed delivery of
possession of the suit property to the plaintiff. The enquiry
into mesne profit has also been ordered. The original
defendants are before this Court in this second appeal.
2] The basic question involved before the Courts
below was whether the plaintiff is entitled for rectification of
registered gift deed dated 16.06.1967 marked as Exh.47 by
correcting the description of the property gifted by Sadashiv,
the donor.
3] The plaintiff claimed ownership of the middle
portion of 4 acres out of Survey No. 100/2 from Sadashiv on
the basis of gift deed dated 16.06.1967 at Exh. 47, whereas
the defendants claimed the ownership of the suit property on
the basis of registered Will dated 30.05.1973 marked as
Exh.58 executed by Sadashiv. The trial Court dismissed the
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suit holding that the plaintiff has failed to establish the
intention of the donor to gift 4 acres of land from the middle
portion of Survey No. 100/2 and the defendants have
established their title over the suit property from Sadashiv on
the basis of registered Will deed dated 30.05.1973. On the
aspect of possession, the tenor of the findings recorded by
the trial Court indicate that though the plaintiff has
established the possession upto the year 1996, she was not
entitled to restoration of possession as she has failed to
establish her title on the basis of gift deed at Exh.47.
4] The lower appellate Court has reversed the
finding recorded by the trial Court on the aspect of intention
of the donor Sadashiv and it is held that Sadashiv intended to
donate 4 acres of land from the middle portion of Survey
No.100/2. On the aspect of possession, the lower appellate
Court holds that once the plaintiff is held entitled to
declaration in terms of prayer clause (1), the question of
dispossession of the plaintiff in the year 1996 may not be of
any relevance and the plaintiff would be entitled to
possession of the suit property.
5] This Court admitted the second appeal on
26.02.2004 on the substantial questions of law framed in
ground Nos. (i) and (ii) in the memo of appeal, which are
reproduced below;
(i) Whether the secondary evidence of the gift deed was
admissible when the respondent could not prove the
loss and give account of the original document?
(ii) Whether the first appellate Court was right in
granting relief of rectification of document in the
absence of original document and evidence of the
alleged fraud?
6] The undisputed factual position available on
record can be seen first. The dispute in the suit pertains to 4
acres of land from the middle portion of Survey No. 100/2.
One Sadashiv had four sons, namely Pundlik, Parbat,
Rajaram and Shankar. There was partition between
Sadashiv and his four sons on 10.04.1964 and the registered
partition deed has been proved and marked as Exh.38 and it
is supported by the entry in the revenue record at Exh. 43 of
the same date. The defendants did not dispute, but, on the
contrary, admit such partition. In the said partition, 4 acres of
land from the Western side of Survey No. 100/2 was alloted
to Rajaram, the husband of plaintiff Smt. Gokarnabai.
Sadashiv, karta of family was allotted 4 acres of land from the
middle portion of Survey No. 100/2. Prior to the marriage of
Rajaram, the son of Sadashiv with the plaintiff Smt.
Gokarnabai, Sadashiv executed registered gift deed dated
16.06.1967 at Exh.47 in respect of 4 acres of land from the
Western side in Survey No. 100/2 in favour of Gokarnabai,
the proposed daughterinlaw. Subsequently, Sadashiv
executed registered Will deed dated 30.05.1975 at Exh.58 in
favour of his two grand sons, namely Ruprao and Ramesh,
the defendant Nos.2 and 3 who are the sons of Shankar, in
respect of middle portion of Survey No. 100/2.
7] It is not in dispute that the original gift deed
dated 16.06.1967 was not produced on record of the trial
Court, but the gift deed produced has been held to be
proved by the lower appellate Court and it is marked as
Exh.47. I have gone through the written statement filed by
the defendants, in which there is denial of execution of such
gift deed for want of knowledge. There is no other plea
raised in respect of it by the defendants. Mere denial of the
execution of such document for want of knowledge, cannot
put the validity or correctness of such document as an issue
in the suit. Similarly, mere denial of execution of Will deed
would also not does put the correctness or legality of such
Will in issue, in the suit. After going through the pleadings of
the parties, evidence led and the findings recorded by the
Courts below, I would proceed on the footing that both these
documents i.e. gift deed at Exh.47 and the Will deed at
Exh.58 have been proved and I do not find any reason to
refer to various decisions cited by the learned counsel Shri
Sohoni for the appellant/defendants, for his proposition that
in the absence of permission to lead secondary evidence and
mere marking of documents as exhibit would not mean that
the document has been proved or has become admissible in
evidence. The substantial question of law framed by this
Court at Sr. No.(i), therefore, does not at all survive.
8] So far as the substantial question of law at
Sr.No.(ii) is concerned, the trial Court records the finding that
the intention of Sadashiv to donate 4 acres of land from the
middle portion of Survey No. 100/2 has not been established,
whereas the lower appellate Court has reversed the said
finding and holds that such intention has been established.
I have gone through the document at Exh.47, which is gift
deed dated 16.06.1967, clearly indicating the intention of
Sadashiv to gift away the property which is owned and
possessed by him. The defendants in categorical terms
admit that on the date of execution of the gift deed, Sadashiv
was the owner of 4 acres of land from the middle portion of
Survey No. 100/2 on the basis of deed of partition dated
10.04.1964 at Exh.38 and the entry in the revenue record at
Exh.43. If this was the intention of the donor, then certainly
he would not donate the property which is owned and
possessed by Rajaram by virtue of partition deed at Exh. 38.
In view of this, the words "Western portion" appearing in the
gift deed requires rectification by substituting the words
"middle portion" in the gift deed at Exh.47. The plaintiff was,
therefore, entitled to a declaration claimed and the lower
appellate Court was justified in reversing the findings
recorded by the trial Court. The substantial question of law at
Sr.No.(ii) is answered accordingly.
9] So far as the aspect of possession is concerned,
I have gone through 7/12 extract placed on record by the
parties at Exhs. 39 to 43. The 7/12 extracts are in respect of
the entire land consisting of Survey No. 100/2 and the names
of Rajaram, Smt. Gokarnabai and the defendant Nos. 2 and
3 are shown as the owners of the property. The tenor of the
findings recorded by the trial Court clearly indicate that
plaintiff was in possession of the suit property. At any rate,
the plaintiff would be entitled to a decree for possession of
the suit property.
In view of above, the second appeal is
dismissed. No order as to cost.
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