JUDGMENT: - These two appeals can be disposed of by a common judgment, since parties to the appeals are almost identical and the property involved in the appeals is the same. 2. One Tara chand and others have preferred Second Appeal No.ll/96, since the suit instituted by them being Reg. Civil Suit No.673 of 1983 and appeal preferred thereon being Reg. Civil Appeal No.290 9f 1987 came to be dismissed. Second Appeal No. 440 of 1994 is preferred by one Ramesh Dhage against Tarachand and others. Ramesh Dhage had instituted a Reg. Civil Suit No.21 of 1982 against Tarachand and others, which came to be dismissed and even appeal preferred by Ramesh being Reg. Civil Appeal No.254 of 1984 also came to be dismissed. 3. Facts for decision of both appeals are being narrated one after the other. 4. I shall first narrate the facts of 1, Second Appeal No.ll/96. The appellants herein shall be referred to as plaintiffs and respondents as defendants. 5. One Tulsabai Pan de was the owner of the suit house described in the plaint. She had no issue of her own. Her husband was also dead. One Keshavrao Rokade, was brought up by said Tulsabai Pande since his childhood and treated him as her son. She had great love and affection for said Keshavrao. Keshavrao was also treating Tulsibai Pan de as his mother. She perfom1ed marriage of said Keshavrao. Keshavrao had two wives. The deceased the defendant no.2 Tanubai was his first wife while the plaintiff no.4 Tulsabai was his second wife, the Defendant No.1 is the son born to Keshavrao HI from defendant no.2 Tanabai while plaintiff nos.1 to 3 are the sons born to Keshavrao from his second wife Tulsabai. It is alleged that in the later part of his life, Kesha vrao was addicted to several vices including smoking of ganja, womanizing etc. Tulsabai Pande was, therefore, apprehensive that if the property is given to Keshavrao, he may alienate it and therefore, the very purpose of giving the property to Keshavrao would be frustrated. It is alleged that she, therefore, executed a gift-deed in favour of Keshavrao's son Vasantrao i.e. defendant no.1 in the year 1931. It is contended that in fact Tulsabai intended to give the property to Keshavrao alone and therefore, for all purposes Keshavrao was the donee. It is alleged that she, therefore, executed a gift-deed in favour of Keshavrao's son Vasantrao i.e. defendant no.1 in the year 1931. It is contended that in fact Tulsabai intended to give the property to Keshavrao alone and therefore, for all purposes Keshavrao was the donee. After the said house was gifted, Keshavrao made several alterations and addition to the house. He was dealing with the said house as if an absolute owner of the same till his death. Keshavrao's first wife Tanubai and her son Vasant were living separately in the same house while Keshavrao was living with the plaintiffs. In the year 1972, Keshavrao realised that he had grown very old and he may die at any time. He, therefore, executed a Will on 2-1-1972 and bequeathed the suit house in favour of plaintiffs no.1 to 3 and defendant no. I. After the death of Keshavrao, however, it is alleged that defendant no.1 taking advantage of the fact that there is a gift deed in his favour and house was recorded in his name, tried to assert his exclusive title. All his attempts, however, failed. The plaintiffs, therefore, served a notice on defendants on 7-8-1973 to effect the partition of the suit house. Defendant No.1 refused. On the other hand, it is alleged that he executed bogus sale-deed in favour of defendants no.3 and 4. The plaintiffs submit that the transfer in favour of defendants no.3 and 4 is not binding on the plaintiffs. They prayed for partition and separate possession. 6. Defendant No.1 Vasant admits the relationship between the parties. He admits that the suit house originally belonged to Tulsabai and she gifted that property to him. He also admits that Tulsabai was treating Keshavrao as her son and was taking care of her. He denies that Keshavrao was addicted to any kind of vices as alleged. It is his contention that since the suit property was given to him in praesention, he had become the full owner of the same and had every right to dispose of the same. Keshavrao was never owner of the suit property. He had, therefore, no right whatsoever to deal with the said property. 7. Defendants No.3 and 4 have filed their written statement. They submit that Vasanta had become full owner of the suit property by virtue of gift-deed in his favour. The suit itself, according to them, is misconceived. Keshavrao was never owner of the suit property. He had, therefore, no right whatsoever to deal with the said property. 7. Defendants No.3 and 4 have filed their written statement. They submit that Vasanta had become full owner of the suit property by virtue of gift-deed in his favour. The suit itself, according to them, is misconceived. Keshavrao was never owner of the suit property. He had no right to bequeath the said property in favour of anybody. They submit that they are bonafide purchaser of the suit property for value. They also deny that the sale deeds in their favour are bogus and sham. Identical are the pleas raised by the other defendants. 8. The learned Civil Judge found that there was a gift in favour of Vasanta and he had become the full owner of the property. He also found that Keshavrao had no interest in the property and could not, therefore, bequeath the same under a Will. He further found that Tulsabai Pan de had every right to gift the property to Vasantrao since she was exclusive owner of the suit property and there was no impediment even if she had become widow prior to 1956. Holding so, the learned Civil Judge dismissed the suit. 9. The learned appellate judge concurred with the findings of the learned Civil Judge and dismissed the appeal. 10. Second Appeal No.440 of 1994 has been filed by Ramesh Dhage, who had purchased the property from Vasant - son of Keshavrao. He has instituted the suit against Tarachand - son of Keshavrao - and his brother. The suit is for possession and mesne profits. 11. Plaintiff Ramesh contends that he had purchased the suit property from Vasant on 4-12-1981 by registered sale-deed. It is his contention that his father, who purchased the suit property, permitted the defendants to occupy the suit house as they were close relatives of the vendor. It is contended that the possession of the defendants was permissive. The defendants failed to vacate the house inspite of the notice. Hence, this suit. 12. The defendants resisted the suit and contended that the sale-deed in favour of the plaintiffs was bogus. The property belonged to Keshavrao. He has bequeathed the property in favour of the defendants. It is contended that in fact the property was gifted by Tulsabai to Keshavrao and not to Vasant. Hence, this suit. 12. The defendants resisted the suit and contended that the sale-deed in favour of the plaintiffs was bogus. The property belonged to Keshavrao. He has bequeathed the property in favour of the defendants. It is contended that in fact the property was gifted by Tulsabai to Keshavrao and not to Vasant. Vasant, therefore, had no right to transfer the suit property in favour of the plaintiffs. It is also alleged that the sale-deed in favour of the plaintiffs is bogus one and not binding on the defendants. 13. The learned Civil Judge found that plaintiff had failed to prove his title. On the other hand, he found that the defendants have proved their title to the suit property since the property was bequeathed in their favour by Keshavrao and in fact Keshavrao was the donee. Holding so, learned Civil Judge dismissed the suit. The appeal also came to be dismissed. Hence, Ramesh has preferred this second appeal. 14. The Second appeal No.440 of 1994 has been admitted by this court on the following substantial questions of law. 1. When the "Gift" under Section 122 of the Transfer of Property Act operates in praesenti and is in favour, of the ascertained person, is it permissible for the courts below to inject their own ideas and assumptions and to hold against the document (Exh.46) and find that the donee named and an ascertained person is not the donee but his father, who is named as the guardian ought to have been the donee? 2. Is not the oral evidence barred under the provisions of Evidence Act (Sections 91 and 92) in derogation or the variance of the written document, when such document is clear and unambiguous? 3. When the registered gift deed (Exh.46) named 'Vasant' the donee in clear and unambiguous terms, are the courts correct in holding that Keshavrao, the father should have been the donee, contrary to the clear writing of the contents of the document? 15. The Second Appeal No.ll/96 was admitted by the court on ground no.7(b) and (c) but no substantial question of law were formulated. I am formulating them now. 1. Whether the courts below were right in holding that the deceased Tulsabai being widow had no right to gift the property prior to 1937 ? 2. Is it necessary to reappreciate the evidence? 16. I am formulating them now. 1. Whether the courts below were right in holding that the deceased Tulsabai being widow had no right to gift the property prior to 1937 ? 2. Is it necessary to reappreciate the evidence? 16. Before I proceed to deal with the questions involved in the Second Appeal No.440 of 1994, I deem it necessary to mention here that neither the lawyers nor the judges dealing with the suits and the appeals thought it fit to see that the suits and the appeals are in fact decided together by the same judge. Since the suits and the appeals have been decided by the different judges at different times, contradictory findings came to be recorded on the same issues. For instance, in Reg. Civil Suit No.673 of 1983, it is held that the gift made by Tulsabai was in favour of Vasanta and not Keshavrao while in Reg. Civil Suit No.21 of I 1982 a finding is recorded that the gift was actually in favour of Keshavrao and not Vasantrao. 17. Now, I proceed to deal with the two substantial questions of law in Appeal No.440 of 1994. I 18. Tulsabai Pan de was the owner of the suit property. She executed a registered gift deed (Exh.46) on 9-4-1931 in favour of Vasantrao s/o. Keshavrao. The defendants have raised a plea in the written statement that Tulsabai Pan de had an immense love and affection for Keshavrao and she desired that property should be given to Keshavrao for his a benefit. It is, however, further contended that since Keshavrao was addicted to vices, she executed the gift deed in the name of Vasant son of Keshavrao. It is also contended that Keshavrao took possession and inducted tenant, recovered rent, carried out repairs etc. to the house. It is contended that Keshavrao was, in fact, full owner of the suit property. 19. We have seen that the gift-deed is in the name of Vasant. Even if Keshavrao was addicted to vices, it cannot be said that because of vices gift-deed was executed in the name of Vasant. The defendants virtually plead that Keshavrao was the donee and not Vasant since Tulsabai always intended to give the property to Keshavrao. Such evidence would be strictly barred under the provisions of Section 91 and 92 of the Evidence Act. The defendants virtually plead that Keshavrao was the donee and not Vasant since Tulsabai always intended to give the property to Keshavrao. Such evidence would be strictly barred under the provisions of Section 91 and 92 of the Evidence Act. To find out the real nature of transaction, an oral evidence may be admissible but where' A' is shown as donee, no evidence can be led to show that' B' was the real donee. That would substantially alter the terms of the disposition of the property. Such an evidence, therefore, shall be liable to be totally ignored. Although Keshavrao may have taken possession and let out the house, that does not go to show that Keshavrao was the owner or donee. In fact, Vasantrao - the donee - was only 6 years old when the gift-deed was executed. Therefore, Keshavrao could be said to have obtained the possession for and on behalf of the minor donee. Since the donee was minor, noneelse than Keshavrao as father could let out the premises. If he was therefore dealing with the property i.e. repairing the house, letting it out, it could be said to be for and on behalf of the minor. 20. It was submitted that Tulsabai Pande was treating Keshavrao as a son arid she intended that Keshavrao should get the benefit of her property. True it is, for this reason alone she gave the property to Kesha vrao' s son Vasant so that even Keshavrao should be able to enjoy the property. She did not give it to any other person and deprive Keshavrao of the enjoyment of the property. If the contents of the gift-deed are seen, it is stated therein that because Keshavrao had served and taken care of her, she was giving the property to his son and her own grand-son. It is for this reason she executed the gift in favour of grand-son Vasant. 21. The ground raised by the defendants for execution of the gift-deed in favour of Vasanta is that Keshavrao was addicted to vices. Here the conduct of Keshavrao has also to be taken into consideration. In fact, there is no evidence worth the name to hold that Keshavrao was addicted to any vices. Even gift-deed does not make any reference to any kind of vices. Here the conduct of Keshavrao has also to be taken into consideration. In fact, there is no evidence worth the name to hold that Keshavrao was addicted to any vices. Even gift-deed does not make any reference to any kind of vices. The fact that inspite of execution of gift-deed in favour of Vasanta in 1931, Keshavrao did not sell the property or any part thereof, itself clearly indicates that Keshavrao was not addicted to any kind of vices. Had he really been addicted to such vices and spending excessively, there was nobody to prevent him from even selling the property even that of a minor. It is not shown that he had sold any articles or any moveable property from the house to meet the expenses for his vices. On the other hand, if the contents of the Will (Exh.44) executed by Keshavrao are seen, they go to show that the ornaments that he had purchased were retained with his first wife. If such ornaments were available with the first wife of Keshavrao in the year 1972 also, that once again goes to show that Keshavrao was not addicted to any vices and story as putup, that because Keshavrao was addicted to vices, the gift-deed was executed in favour of Vasanta does not hold water. Since it has to be held that Vasanta was the donee of the suit property, he became the full owner of the same. Vasanta - owner of the suit house - is examined by the plaintiffs. He has as PW-2 stated that he has executed the sale-deed in favour of Ramesh. The said sale-deed is at Exh.27. It goes to show that Ramesh has become the owner on the basis of the sale-deed. Since it has been held that the suit property was gifted to Vasanta and he was the donee, he became the full owner of the suit property. As a result of it, it has to be further held that Keshavrao did not and could not get any right, title and interest in the suit property. He did not, therefore, have a power to dispose of the property by Will. The defendants could not, therefore, become owners as legatees under the Will. Vasanta had validly passed the title in favour of plaintiff Ramesh. 22. He did not, therefore, have a power to dispose of the property by Will. The defendants could not, therefore, become owners as legatees under the Will. Vasanta had validly passed the title in favour of plaintiff Ramesh. 22. With the above evidence and the contents of the gift, it was in fact not possible to hold that Keshavrao was the donee and not Vasanta. The learned judges of both the courts below fell in error. Although there are concurrent findings, which are not generally disturbed in Second appeal, but in this case it is necessary to interfere in order to prevent miscarriage of justice. In the result, the judgment and decree passed by the courts below need to be set aside and the appeal allowed. 23. This takes me to the other Appeal No.l1/96. The facts have already been narrated. The Reg. Civil Suit No.673 of 1983 was filed by Keshavrao's second wife Tulsabai and her son Tarachand and others for declaration and partition of the suit property. All findings has been recorded by the courts below against the plaintiffs. The second appeal was admitted on the substantial question of law as narrated above. 24. In fact, plaintiffs' own pleadings would show that Tulsabai Pande did not have any relative and therefore she treated Keshavrao as her own son. Both Keshavrao and Tulsabai belonged to different caste as can be seen from the contents of the gift-deed. The contents of the gift-deed show that Tulsabai did not have her own son and she had no relative. If. she did not have any relative then it has to be said that she was exclusive owner of the suit property. It is also not shown by the evidence that she had any agents or cognets surviving at all. As said earlier, the contents of the gift-deed show that she had brought up Keshavrao as her own son, as she had no son. If Tulsabai did not have any relative at all and she did not have a son, she had every right to deal with her own property in the manner she chose. Further, since Keshavrao and Tulsabai belonged to totally different family, neither Keshavrao nor his heirs get a right to challenge the gift-deed executed by her on the ground that she had no right to execute a gift-deed being a widow. Further, since Keshavrao and Tulsabai belonged to totally different family, neither Keshavrao nor his heirs get a right to challenge the gift-deed executed by her on the ground that she had no right to execute a gift-deed being a widow. The plaintiffs are not heirs, cognets or agnets of Tulsabai at all and they have no right to question her disposition. The learned Civil Judge has framed a specific issue no.6 on this aspect and he has also answered the issue in the negative. He has held that since it was self-acquired property of Tulsabai she had every right to gift it without any impediment. The contents of the gift-deed (Exh.52) show that it was selfacquired property of Tulsabai. The question of any restriction on her right to dispose of the property would have arisen only in two cases (1) That it was a property which carne to her from her husband's side and (2) had she left behind her any heirs, cognets or agnets. The instant case does not fall in either of the categories. Since there is a gift in favour of Vasanta, he is the donee as held earlier. He had become full owner of the suit property which was gifted to him. Keshavrao had, therefore, no authority to execute the Will in respect of the suit property which was given to Vasanta by Tulsabai. The plaintiffs have no share in the suit property since it is not a property which belonged to their family. The plaintiffs have, therefore, no share in the suit property. They have not become the owner of suit property by virtue of Will executed by Keshavrao. The courts below, therefore, rightly dismissed the suit. There is no substance in this appeal. Hence, I pass the following order. i) Second Appeal No.440 of 1994 is allowed. ii) The Judgment and decree passed by the trial court as well as the appellate court is set aside. The Reg. Civil Suit No.21 of 1982 is decreed. The defendants shall handover the vacant possession of the suit premises to the plaintiffs forthwith and enquiry into future mesne profits be held from the date of suit till realization of the possession. The defendants shall pay costs throughout. iii) Second Appeal No.11 of 1996 is dismissed with costs. Order accordingly.