AMARSING RATANSING Vs. GOSAI MOHANGIR SOMVARGIR

JUDGEMENT

(1.) In this appeal two questions arise, namely, the document, Ex. 45, under which the plaintiffs who are respondents No. 1 to 3 before me claimed possession of the property from the defendants who are appellants. Nos. 1 and 2 and respondent No. 3 before me, was in the nature of a gift deed or a will and, secondly, if it was a gift deed whether it was legally and validly attested. The said question arise in the following circumstances. The plaintiffs filed a suit in the Court of Third Joint Civil Judge (J. D.) at Baroda being Regular Civil Suit No. 691 of 1961 for recovery of the possession of a residential building bearing census No. Ba/4,409 situated at Siyabaug, Babajipura. Baroda from the defendants. They were claiming the title of the property under the deed of gift. Ex. 45, executed by one Bai Andar the widow of Rama Rayji executed on September 2, 1946. By the said gift the said Bai Andar gifted all her properties to the plaintiff No. 3 Bai Chanchal who happened to be her niece, being husband's brother's daughter, out of natural love and affection. It was, however, admitted in the said gift deed that the said Bai Andar shall have a life interest in the suit building and on her demise the property was to be mutated in record of rights and all the Municipal and other taxes were to be paid by the plaintiff No.3 who was authorised and directed to collect documents constituting title deeds to the property after the demise of the said Bai Andar. On May 2, 1961, the said Bai Andar expired, after her death the plaintiff No.3 sold the suit Property to plaintiffs Nos. 1 and 2 on May 16, 1961 for a consideration of Rs. 1999/- and thus the plaintiffs Nos. 1 and 2 became owners of the suit properties. It was the case of the plaintiffs that the defendants Nos. 1 and 2 were distant relatives of said Bai Andar and they entered upon the suit premises on the pretext of performing funeral rights and obsequies after the death of Bai Andar. It was further alleged that the defendants Nos. 1 and 2 picked up quarrel with plaintiffs No. 3 and were trying to drive her out of the suit building. As the defendants continued to remain in wrongful possession of the suit property and as the defendant No. 3 was the tenant of one of the rooms of the said property, who were not willing to hand over the possession to the plaintiffs, a suit was filed for possession of property from the defendants and for mesne profits for the period of wrongful occupation of the property. The defendants Nos. 1 and 2 resisted the suit contending, inter alia, that the said Bai Andar had executed the last will and testament on April 7, 1961, by which she revoked her all previous wills and bequeathed the suit property to defendants Nos. 1 and 2. It was specifically contended by the defendants that Ex. 45 though ostensibly a gift deed was in effect and substance a will which was, therefore, revoked by the last will and testament dated April 7, 1961 by the said Bai Andar. As the defendants Nos. 1 and 2 had become the owners under the said will, the plaintiff No. 3 had no right to sell the property to plaintiffs Nos. 1 and 2 and, therefore, they were not entitled to the relief for possession. On these pleadings the learned trial Judge raised issues and found that the plaintiffs No. 2. Had become absolute owner of the suit property under the gift deed of September 2, 1946; and that the defendants have failed to prove that the said deceased Bai Andar had executed a last will and testament on April 7, 1961, bequeathing the said property to the defendants Nos. 1 and 2, and therefore, the plaintiffs were not entitled to recover the possession of the property. The defendants, therefore being aggrieved with the said judgment and decree of the learned Civil Judge (J. D.) went in appeal before the learned District Judge. Baroda by their Civil Appeal No. 345 of 1963 which was also dismissed by him. The learned District Judge found that document, Ex. 45 was a deed of gift and not a testamentary instrument and as regards the document, Ex. 49 which was alleged to be the last will of Bai Andar said to have been executed by her on April 7, 1961, the learned District Judge found that Bai Andar had not executed the said instrument by her free will and consent and in her sound disposing state of mind and the proof tendered by the defendants to prove the will was far from satisfactory and did not appeal to the conscience of the Court. In his view of the evidence, therefore, the learned District Judge found that the will was not proved to the satisfaction of the Court. He, however, held that as the document, Ex 45 was a deed of gift and not a will the title had also passed to the plaintiff No. 3 who in term transferred the property by sale to plaintiffs Nos. 1 and 2, therefore, the appeal was dismissed. Being aggrieved with the said Judgment and decree, the defendants have come to this Court by way of second appeal.

(2.) At the time of hearing of this appeal, Mr. M. M. Shah the learned advocate, appearing on behalf of the appellants has raised two contentions, namely, (1) on the true construction and effect of document. Ex. 45, it was in nature of a testamentary instrument and that it was not a deed of gift, and (2) if it is found by the Court that the real nature of transaction was that of a gift deed, it was not legally and validly attested, Mr. Shah the learned advocate for the appellants has submitted that by the document, Ex. 45, the transaction was not to be effective 'in present', but was to take effect on the demise of said Bai Andar as it was clear from three speaking circumstances, viz, (a) reservation of life interest of Bai Andar in the said property, (b) right of use and enjoyment of the property by plaintiff No.3 only after the demise of Bai Andar, and (c) the mutation in city survey registers, payment of taxes by plaintiff No. 3 and handing over of documents constituting title only after the demise of Bai Andar. Now, it is settled position of law that in order to determine the real nature of transaction we have to look to the document itself and attendant circumstances to the said document, if there are any. Whether an instrument is a testamentary instrument or a non-testamentary one will depend on the two well known tests, whether by the said instrument disposition takes effect during the life time of the executant of the instrument or whether it takes effect after his demise, and consequently whether it is revocable or not. In this connection, the Court has not to consider merely the form of document but had to ascertain the real intention of the parties which is to be gathered from the words used in the document itself. The High Court of Bombay in the matter of Khushalchand Bhagchand v. Trimbak Ramchandra. AIR 1947, Bom 49, laid down certain basic tests to be applied in order to determine the nature of instrument; whether it is will or a deed of gift. In paragraph 3 of the said decision it is observed:-

(3.) In paragraph 5 of the said decision it has been observed as under:-