Oral Judgment
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 daughter-in-law 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 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 allotted 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 daughter-in-law. 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.