Judgment :- ORAL JUDGMENT: 1. This is second appeal by a defendant who lost in both the courts below. 2. Facts are as follows Respondent/plaintiff had instituted a civil suit for permanent and mandatory injunction restraining the appellant/defendant from interfering with possession of the plaintiff over the suit property. 3. The plaintiff and the defendant are the real sisters. One Laxman Shrawanji Kayarkar is their grandfather i.e. their mother’s father. He was the owner of the house situated in ward no.4 at Kelzar. Said Laxman died on 1/7/1989 leaving behind him the plaintiff and the defendant as the only heirs and the suit property. Since the plaintiff and the defendant are the only heirs, the plaintiff submits that the plaintiff and defendant became the co-owners of the property left behind by Laxman. The defendant, who is sister of the plaintiff started living in the part of the house. After the death of said Laxman, the plaintiff and the defendant agreed to divide the said house and memorandum of partition was executed on 24/5/1990. According to the plaintiff, the western portion fell to the share of the plaintiff while Eastern portion fell to the share of the defendant. Although the Western portion fell to the share of the plaintiff and Eastern portion fell to the share of the defendant, there is no dividing wall between the two houses. The plaintiff, therefore, has an apprehension in the mind that the defendant may interfere in the possession of the plaintiff over the western portion. The plaintiff, therefore, wanted to construct the said wall dividing the said house. When they started the construction, the defendant obstructed. Hence, the suit. 4. The defendant resisted the suit. She, however, admitted the relationship between the parties. She also admitted that the property originally belonged to their grandfather Laxman. She denies that partition had taken place between the plaintiff and the defendant and western portion fell to the share of the plaintiff. The defendant contends that during the lifetime Laxman had executed a gift-deed in her favour and therefore she has become exclusive owner of the suit property. According to the defendant, the partition executed between the parties is not admissible in evidence because it is not registered under Section 17 of the Registration Act. The defendant led a counter claim claiming possession of the portion in possession of the plaintiff. According to the defendant, the partition executed between the parties is not admissible in evidence because it is not registered under Section 17 of the Registration Act. The defendant led a counter claim claiming possession of the portion in possession of the plaintiff. It is her contention that the plaintiff had forcibly dispossessed the defendant. The plaintiff resisted this counter claim by filing the written statement to the said counter claim. 5. The learned judge of the trial court framed issues and found that the plaintiff was in possession of the western portion in view of the partition. The trial court found that there was a partition on 24/5/1990 and gift-deed executed in favour of the defendant is void. The learned judge of the trial court, therefore, decreed the suit. The trial court held that the defendant was not entitled to possession of the property in possession of the plaintiff. The trial court did not, however, pass any order with regard to the counter claim. 6. The defendant preferred an appeal before the District Judge. The District Judge held that there was a partition and western portion had fallen to the share of the plaintiff. The partition-deed was admissible in evidence and the gift-deed was void. He, therefore, dismissed the appeal. 7. The defendant feels aggrieved and prefers this second appeal. The second appeal is admitted on the following substantial question of law by D.K.Deshmukh,J. “That the registered gift-deed dated 15/5/1989 executed by Laxman in favour of the defendant/appellant was brushed aside by both the learned courts below without any good reason for the same and no due weight was given to the execution and registration of the document of gift-deed.” But for the gift-deed, both the plaintiff and the defendant would be entitled to half share. The defendant has set up a gift in her favour. The learned judge of the trial court mainly refused to treat the gift-deed as valid on the ground that the gift-deed bears the thumb impression instead of signature of the donor, as the donor was literate and educated person. The learned judge had also taken into account the fact that the deceased died within one and half months of the execution of the gift-deed. The learned judge of the appellate court endorses almost the same view. The learned judge had also taken into account the fact that the deceased died within one and half months of the execution of the gift-deed. The learned judge of the appellate court endorses almost the same view. Before dwelling upon the validity of the gift, it would be necessary to look into the conduct of the parties subsequent to the alleged execution of the gift-deed. The date of the gift deed is 1/7/1989. The plaintiff has, in fact, claimed that there was a partition between the parties on 23/5/1990 and it was reduced to writing on 24/5/1990. There are in fact two documents on record Exh.29 and 37. Exh.37 is a partition deed written on a stamp paper but unregistered and Exh.29 is on a simple piece of paper. Exh.29 is dated 23/5/1990 and Exh.37 is dated 24/5/1990. Much argument was advanced by both the lawyers with regard to the admissibility of Exh.37 on account of non-registration of the same. The fact is, both documents are exhibited. I do not propose to enter into the validity of those documents since the appeal is not admitted on the question of its validity and admissibility. Since the appeal is not admitted on that question of law, I do not propose to discuss that at all. Both documents to my mind can be looked into to hold that there was some agreement to divide the house and the parties had in fact signed the said documents. Learned counsel for the appellant had relied on the decision of the Supreme Court reported in AIR 1988 SC 881 (Roshan Signh and others ..vs.. Zile Singh and others). Since I find that the appeal has not been admitted on that question of law, I need not consider even this decision of the Supreme Court in the matter nor do I propose to deal with the other decision in Second Appeal No.64 of 1997 (Tatoda Pak Pakmode ..vs.. Sudhakar Pakmode), decided on 4/5/2009. The documents i.e. Exh. 29 and 37 have come into existence ten months after the execution of the gift-deed. The material question is why inspite of existence of such gift-deed the documents purporting to be partition-deed came into existence and were signed by the parties. To my mind, the defendant could have refused to sign any of these documents showing that she is exclusive owner of the property by virtue of the gift-deed. The material question is why inspite of existence of such gift-deed the documents purporting to be partition-deed came into existence and were signed by the parties. To my mind, the defendant could have refused to sign any of these documents showing that she is exclusive owner of the property by virtue of the gift-deed. This conduct of the defendant in not claiming exclusive ownership on the basis of the gift-deed speaks volumes against her. Was it because she was aware that she may not be able to prove the gift?. It was contended that defendant denies to have put her signature on Exh.29 and 37 and therefore, it cannot be said that the defendant had executed these documents. Her statement on oath to that effect is apparently false. She has courage to deny her admitted signatures on Vakalatnama and the written statement. This clearly shows that her denial of having put signatures all these documents is of no consequence. 8. Be that as it may. That takes me to the main question to be decided. But then the above is a material circumstance which cannot be lost sight of. For proof of gift-deed, an attesting witness is required to be examined since gift is a document which is compulsory attestable. DW 4 – Bhaurao is an attesting witness who is examined to prove attestation and execution of the gift-deed. The witness does say that Laxman has put his thumb impression on the gift-deed after it was read over and that he himself put his signature as an attesting witness and Vasant Dabhekar also attested it. It is not much in dispute that Laxman – the executant was more than 90 yeas of age. The defendant through her evidence has tried to show that Laxman had put his thumb impression on the documents as he had developed a cramp in the hand due to the old age. It may be noted here that Laxman was educated and a literate person. The plaintiff in order to prove that Laxman never put thumb impression and used to sign the documents has placed on record two documents Exh.31 and 32. Exh.31 is an agreement of lease and Exh.32 is an application to the M.S.E.B. The defendant Latika i.e. DW 2 in her cross-examination admits that Exhs.31 and 32 bear signature of Laxman. The plaintiff in order to prove that Laxman never put thumb impression and used to sign the documents has placed on record two documents Exh.31 and 32. Exh.31 is an agreement of lease and Exh.32 is an application to the M.S.E.B. The defendant Latika i.e. DW 2 in her cross-examination admits that Exhs.31 and 32 bear signature of Laxman. It is, therefore, clear that Laxman was literate and educated and used to sign on documents. Shri Khare, learned counsel for the appellant submits that it cannot be disputed that Laxman was a literate person and he used to sign the documents but according to him, that was seven yeas ago. He submits that seven years ago he was able to put signature but on account of advanced stage he was not able to put signature. In this regard, it may be observed that witnesses have unanimously, in fact, said that Laxman was in good mental and physical condition until last. Even DW 2 Latika says so. Now, if he was mentally and physically well until last, it is difficult to accept that he would put thumb impression instead of a signature. These two things cannot go together. If he was mentally and physically sound, it is difficult to accept that he could not put signature on the documents. 9. To me, it appears, in fact, that Laxman was not at all in fit condition to execute the document and that is why he could not put his signature. There are two reasons why conscious execution of such document is doubtful. First is DW 2 Latika admits in cross-examination that Laxman had an abscess to his leg and even DW 4 Bhaurao admits in cross-examination that Laxman was not well due to the injury to the leg. Secondly, DW 3 Pradeep says in examination-in-chief itself that he scribed the gift deed upon say of Laxman and in cross-examination admits that Laxman was not present when document was scribed by him. It is thus clear that contents of the documents are not written upon the instruction of Laxman. It is clear that Laxman’s physical and mental condition was not good. That is also evident because he died just a month after the alleged execution of sale-deed. The Registrar was brought to his house and that also shows that his condition was not normal. It is clear that Laxman’s physical and mental condition was not good. That is also evident because he died just a month after the alleged execution of sale-deed. The Registrar was brought to his house and that also shows that his condition was not normal. If that is so in no case it could be said that the document was consciously executed by Laxman. 10. There is no doubt that the document is duly registered and attested. Proof of that alone is not enough. It must be shown that it was duly executed by the executor of his own free will. The circumstances do show that it was not. All this evidence have been rightly appreciated by the courts below and I do not find any perversity in its appreciation. In the circumstances, there is no substance in the appeal. It is dismissed with costs.