( 1 ) THIS is an appeal preferred by the original defendant being aggrieved by the decree of partition and separate possession passed in Regular Civil Suit No. 86 of 76 decided by the Joint Civil Judge Junior Division, Osmanabad on deputation at Kallam on 18. 12. 1980, which judgment and decree is further confirmed by the District Judge, Osmanabad in Regular Civil Appeal No. 16 of 1981 decided on 14. 10. 1985. ( 2 ) BRIEF facts giving rise to this appeal may be stated as follows : one Mukundrao had two wives, Tulsabai and rangubai. Original appellant Haribai is daughter of rangubai. Haribai expired pending this Second Appeal. Tulsabai had daughter Kaveri. Present plaintiff/respondent Indrabai is daughter of Kaveri. It is not disputed that Tulsabai, Rangubai, Kaveri had expired during life time of Mukundrao and there was no son born to Tulsabai or Rangubai or to Kaveri. Mukundrao expired on 28. 3. 1976. Present respondent/plaintiff Indrabai filed suit for partition and separate possession of the property of Mukundrao. The suit was resisted by present appellant/defendant Haribai on the ground that she is sole successor of Mukundrao, as Mukundrao had executed a will in her favour on 24. 8. 1975. ( 3 ) THE Trial Court held that so-called will is shrouded with suspicious circumstances and cannot be trusted and he decreed the suit for partition and separate possession. The learned District Judge in First Appeal held that so-called will is a gift-deed in fact. He further observed in para 10 that the will is also not duly proved and it is a document of suspicious nature. ( 4 ) THIS court while admitting this appeal on 17. 1. 1986 passed following order : "admit. Interpretation of document at Exh. 46 is substantial question of law. " ( 5 ) BOTH parties have thus mainly argued on the question of interpretation of will Exh. 46 and mainly whether it is a testamentary will or a gift-deed. In case it is held that it is a gift-deed, it being in respect of property of which value is more than Rs. 100/ would require registration. So in absence of registration, it would not be a valid gift. 46 and mainly whether it is a testamentary will or a gift-deed. In case it is held that it is a gift-deed, it being in respect of property of which value is more than Rs. 100/ would require registration. So in absence of registration, it would not be a valid gift. ( 6 ) IN para 9 of the judgment, the learned District Judge translated the will as follows : ""person taking the will deed : Haribai w/o Digamberrao resident of Saundama taluka Kej, district Beed now Borgaon Kallam, district Osmanabad. Person giving the will : Mukundrao Gopalrao Samundre, resident of Borgaon Khurd,taluka Kallam, district Osmanabad. " i hereby execute the will as follows : i have no son. I give the lands standing on my name : 1. Survey No. 58a. 2. Survey No. 67g. and house property to my only daughter Haribai by this will which I execute as follows : haribai would be the owner because she looks after and feeds me till today and would also feed me in the future. For this reason I execute this will-deed on a stamp paper. Hence you enjoy all the property by this will. If somebody obstructs your enjoyment it would be null and void. This will is executed by me when I was not under the influence of intoxicant. It is true dated 24th August, 1975. " Both parties admitted that it is fairly good translation and they do not dispute its correctness. ( 7 ) IN para 9 of the judgment, the learned District judge has referred to the case of Parvathy Nadachy umayparvathy Nadachy vs Ramalekshmy Seethalekshmy Ammal [air 1956 Tra. C. 127], in which it is observed that the essential characteristic of a will is that it is a more declaration of an intention so long as the testator is alive, a declaration that may be revoked or varied according to the variations in his intention; a disposition that requires the testator's death for its consummation and it is but ambulatory or without fixed effect until the happening that event. A gift, on the other hand is a transfer of property that is voluntary, gratuitous and absolute-conferring immediate rights. A gift, on the other hand is a transfer of property that is voluntary, gratuitous and absolute-conferring immediate rights. ( 8 ) SECTION 2 (h) of the Indian Succession Act, 1925 defines "will" as follows : ""will" means the legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. " ( 9 ) SECTION 122 of the Transfer of Property Act, 1882 defines "gift" as follows : ""gift" is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person called the donor, to another, called the donee, and accepted by or on behalf of the donee. Acceptance when to be made :-Such acceptance must be made during the lifetime of the donor and while he is still capable of giving. If the donee dies before acceptance, the gift is void. " ( 10 ) BOTH sides cited several authorities on the question of interpretation of document and before we go to discuss the actual document Exh. 46 and it's contents, we may refer to the various authorities. ( 11 ) IN Ram Gopal vs Nand Lal and others [air (38) 1951 SC 139], it is laid down in para 7 as follows : "in construing a document, whether in English or in vernacular, the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. " ( 12 ) IN the case of Ramkishorelal and another vs. Kamalnarayan [ air 1963 SC 890 ], following observations are made in para 12 : "the golden rule of construction, it has been said,is to ascertain the intention of the parties to the instrument after considering all the words, in their ordinary, natural sense. To ascertain this intention the Court has to consider the relevant portion of the document as a whole and also to take into account the circumstances under which the particular words were used. Very often the status and the training of the parties using the words have to be taken into consideration. It has to be borne in mind that very many words are used in more than one sense and that sense differs in different circumstances. Very often the status and the training of the parties using the words have to be taken into consideration. It has to be borne in mind that very many words are used in more than one sense and that sense differs in different circumstances. Again, even where a particular word has to a trained conveyancer a clear and definite significance and one can be sure about the sense in which such conveyancer would use it, it may not be reasonable and proper to give the same strict interpretation of the word when used by one who is not so equally skilled in the art of conveyancing. " ( 13 ) IN the case of Keshav Kumar Swarup vs Flowmore private Limited [ (1994) 2 SCC 10 ], in para 3 it is observed as follows : "in interpreting a document the intention of the parties has to be ascertained, if possible from the expressions used therein. More often than not, this causes no difficulty,but if difficulty is felt owing to inarticulate drafting or inadvertence or other causes, the intention may be gathered by reading the entire document and, if so necessary, from other attending circumstances also. If through such a process the intention of the parties can be culled out consistently with the rule of law, the courts are required to take that course. " ( 14 ) IN the case of Bajrang Factory Ltd. and another vs University of Calcutta and others [2007 (6) Mh. L. J. 81], it is observed as under : "with a view to ascertain the intention of the maker of the Will, not only the terms thereof are required to be taken into consideration but also all circumstances attending thereto. The Will as a whole must, thus, be considered for the said purpose and not merely the particular part thereof. As the Will if read in its entirety, can be given effect to, it is imperative that nothing should be read therein to invalidate the same. " ( 15 ) THE learned advocate for the appellants cited case of Raghupati Janardhan Kathale and ors. vs Pundlik Balaji Upadhye and ors. [2002 (1) All MR 248]. He drew my attention to para 9, but it is clear that after considering the wording of the will, the court has held that it is a Will and not a conveyance. vs Pundlik Balaji Upadhye and ors. [2002 (1) All MR 248]. He drew my attention to para 9, but it is clear that after considering the wording of the will, the court has held that it is a Will and not a conveyance. It is observed that Pralhad had repeatedly clarified that the will was to take effect after his death. Thus conclusion drawn is that the will of 1949 showed that it was to take effect after the death of Pralhad. Merely putting the beneficiaries into possession of property does not change the nature of the will nor does it make a conveyance as urged by the counsel for the appellant in that case. ( 16 ) IN the present case, we have reproduced the translation of Deed Exh. 46. There are names of person 'taking the will' and of person 'giving the will', which is an attribute of Gift as per Section 122 of the Transfer of Property Act, 1882. It is further stated that besides landed property house property and household articles would become of the ownership of Haribai. Next sentence states regarding the motive for the Deed which can be valid for both for Gift and Will, namely that till date of the execution of the Deed, Haribai had been looking after Mukunda and he was confident that she would look after him thereafter. Then the words come that "on the basis of said Deed Haribai was to enjoy the entire property and if anybody objects such objection would be void". Though word "--------" (Will) is used seven times, it is nowhere stated that the Deed was to take effect not immediately but only after death of Mukunda. Here oral evidence plays a vital part. One of the important distinction between "will" and "gift" is that in "gift", transfer takes effect immediately; whereas "will" takes effect only after the death, provided it is not varied, cancelled or revoked by subsequent will or codicil. ( 17 ) IN order to prove original document Exh. 46, Haribai is examined at Exh. 45. She examined Pralhad and Vitthal as attesting witnesses and PW4-Venkat Samudre as scribe of the document. ( 18 ) PW4-VENKAT who is a scribe has stated that since the date of execution Exh. 46 defendant Haribai had become the owner of the suit land. 46, Haribai is examined at Exh. 45. She examined Pralhad and Vitthal as attesting witnesses and PW4-Venkat Samudre as scribe of the document. ( 18 ) PW4-VENKAT who is a scribe has stated that since the date of execution Exh. 46 defendant Haribai had become the owner of the suit land. This admission at the end of para 3 shows the impression of the person who has written the deed as to what had been intention of deceased Mukunda in executing the document. This admission clearly shows that Mukunda wanted to execute gift and not will. Nowhere Exh. 46 discloses that the property was to vest in Haribai after the death of Mukunda. Merely using word "---------" (will) is not enough. It has to be noted that all the witnesses including scribe were villagers and we have to accept meaning of words as understood by them. In para 3 scribe Venkat specifically stated that Mukunda told him that defendant had maintained him and so he intended to give lands to her as a gift. Then Mukunda asked him to write the document. ( 19 ) THERE is evidence of witness Pralhad and attesting witness Vitthal. Vitthal stated in his statement at Exh. 48 that Mukunda said that as Haribai had maintained him, he gave her lands under the document and from the day of execution of document she had become owner and she should enjoy the property and he was no more owner of the property. This admission given by Vitthal regarding the statement of Mukunda shows intention to execute Gift rather than Will. As per evidence of Prahlad, Mukunda asked scribe to write will and he did not dictate contents. Then witness Pralhad said that Mukunda asked the scribe to write document and he did not say anything more. ( 20 ) DEFENDANT Haribai stated that she was maintaining Mukunda as her mother was not alive. Mukunda had executed will in her presence. It was written at the house of Mukunda at Borgaon, Taluka Kallam where she was present. It was written by PW4-Venkat Samudre at the instance of Mukunda. It was read over by Venkat and then Mukunda put his thumb impression on it and thereafter Pralhad and Vishwambhar put their signatures and Vitthal put his thumb impression as attesting witnesses. She also stated that Mukunda was in good mental and physical condition. It was written by PW4-Venkat Samudre at the instance of Mukunda. It was read over by Venkat and then Mukunda put his thumb impression on it and thereafter Pralhad and Vishwambhar put their signatures and Vitthal put his thumb impression as attesting witnesses. She also stated that Mukunda was in good mental and physical condition. He could walk and go to the land many times. Haribai was illiterate woman. ( 21 ) IN the cross-examination, Haribai admitted that she h ad two sons and she was residing with Mukunda. She denied that Kaveri was daughter of Tulsabai and Mukunda. She denied that plaintiff was daughter of Kaveri. Haribai stated that stamp was purchased by Mukunda on earlier day, but the stamp appears to have been purchased on 13. 8. 1975 and the deed is written on 24. 8. 1975. So the statement of Haribai that the stamp was purchased on earlier day is not correct. Haribai said that since death of her mother, it was agreed to execute the document in her favour by Mukunda. Then she changed and said that it was agreed by Mukunda to give her lands during life time of her mother Rangubai and at that time Mukunda, Rangubai, Patil and Kulkarni were present and the document was written accordingly. It is stated that at about noon, Venkat started writing the document and then Mukunda went to call witnesses. Till the witnesses and Mukunda came, Venkat had already written the document. Then Mukunda put his thumb impression with ink of fountain pen. Haribai had also accompanied Mukunda to call witnesses. So the will was not written in presence of Mukunda and other witnesses. It was prepared by Venkat before Mukunda and witnesses came. Witness Haribai also stated that on same day she was put into possession of the property. A photograph produced on record is showing Mukunda handing over the document to Haribai. 'giving' and 'taking' are attributes of gift and not of will. So conduct in taking photograph and its production as evidence supports case of it being a gift. Since gift is of immoveable property worth more than Rs. 100/-, in absence of registration, gift is void as per Section 123 of the Transfer of Property Act. 'giving' and 'taking' are attributes of gift and not of will. So conduct in taking photograph and its production as evidence supports case of it being a gift. Since gift is of immoveable property worth more than Rs. 100/-, in absence of registration, gift is void as per Section 123 of the Transfer of Property Act. ( 22 ) SO evidence of scribe Venkat and of the attesting witness Vitthal shows that deed is gift and defendant Haribai was to become owner of the lands from the date of execution of Exh. 46. Since it is case of unregistered gift, it cannot be said that the conclusion drawn by the learned District Judge is wrong, illegal or not based on evidence. It is reasonable and correct conclusion based on evidence. Thus this Second Appeal has no merit and deserves to be dismissed. ( 23 ) ACCORDINGLY the Second Appeal is dismissed. Parties are directed to bear their own costs.