Monday 12 December 2016

When gift deed is said to have been proved?

 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.
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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3 sa531.03.odt
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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