DATTA SHANKAR UNHALE Vs. GOKARNABAI RAJARAM UNHALE

JUDGEMENT

(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 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.