Vaishali Darshak Ghegadmal vs Taibai Santosh Ghegadmal
2023 Latest Caselaw 8274 Bom

2023:BHC-AS:23015                                                      347-2012-Apeal-J=.doc

                    Uday S. Jagtap


                             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     CIVIL APPELLATE JURISDICTION

                                        FIRST APPEAL NO. 347 OF 2012
                                                   WITH
                                     CIVIL APPLICATION NO. 2061 OF 2012
                                                     IN
                                        FIRST APPEAL NO. 347 OF 2012

                    Mrs. Vaishali Darshak Ghegadmal
                    Aged 42 years. Occ. Service R/at
                    E-31/A, Everst CHS, Sahakar Nagar,
                    Shell Colony, Chembur (East), Mumbai 71                    .. Appellant

                          Vs.
                    Mrs. Taibai Santosh Ghegadmal
                    Adult, Occ. Housewife, R/at
                    Flat No.79, 4th Floor, Shivjan Society,
                    Sahakar Nagar No. V, Shell Colony Road,
                    Chembur, Mumbai - 71                                       .. Respondent

                                                   .....
                    Mrs. Vaishali D. Ghegadmal - appellant present in Court

                    Mr. Gulabrao W. Awasarmol i/b Mr. Viplav Khobragade for the
                    respondent
                                                .....

                                               CORAM : PRITHVIRAJ K. CHAVAN, J.

RESERVED ON : 3rd AUGUST, 2023 PRONOUNCED ON : 11th AUGUST, 2023 JUDGMENT :-

1. Feeling aggrieved with the judgment and order of the trial

Court dated 6th January, 2012, the defendant / appellant has

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preferred this appeal. Facts in brief are as under.

2. The respondent is the mother-in-law of the appellant. The

respondent had filed a suit against the appellant seeking mandatory

and perpetual injunction in respect of Flat No.79, 4 th Floor, Shivjan

Society, Sahakar Nagar No.5, Shell Colony Road, Chembur,

Mumbai 400 071 (hereinafter referred to as "suit flat"). It is the

contention of the respondent that the suit flat has been in her

exclusive possession, use and occupation and that husband of the

appellant and the son of respondent no.1 namely deceased Darshak

had gifted the suit flat to the respondent.

3. In the year 2005, deceased Darshak became seriously ill. The

appellant refused to attend and take care of her husband. The

respondent and her husband took care of their son during his

illness. The relations of the appellant and the respondent were

strained during those days. They were not on talking terms with

each other. The appellant started residing with her parents at

Ambernath while her husband continued to reside with the

respondent in a bunglow.

4. In the month of December 2004, with the consent of

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deceased Darshak, the respondent had given the suit flat to one

C.R. Rukmini on leave and license basis. The respondent regularly

collected the monthly compensation in respect of the suit flat.

Subsequently, on 29th June, 2005, by a registered gift deed,

deceased Darshak had gifted the suit flat in favour of the

respondent (mother). It is the contention of the respondent that

she became owner of the suit flat pursuant to the said gift deed.

Physical possession of the suit flat was also handed over to her by

Darshak. Unfortunately, Darshak died on 2 nd December 2007.

The appellant came to stay with the respondent in the respondent's

husband's bunglow.

5. By a subsequent leave and licence agreement dated 9 th June,

2008, the respondent had again handed over the suit flat in favour

of Smt. C.R. Rukmini for a period of two years. She was receiving

the compensation of the said suit flat.

6. On 25th October 2009, the licensee had vacated the suit flat

before expiry of the licence period. The suit flat was, thereafter,

occupied by the respondent and her husband.

7. It is contended that on 30 th October, 2009 the appellant

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entered into the suit flat against the wish of the respondent and her

husband. Inspite of repeated requests, she refused to leave the suit

flat. A complaint was registered at Nehru Nagar Police Station on

4th November, 2009. Since the matter was of civil nature, the

police refused to interfere. The respondent, therefore, filed a suit

in the City Civil Court.

8. The appellant had filed written statement as well as counter

claim resisting the claim of the respondent. The appellant admitted

execution of the gift deed dated 29 th June, 2005 by her deceased

husband in favour of the respondent, however, she disputed the

circumstances mentioned by the respondent in the plaint. It is the

specific contention of the appellant that from the year 2005, her

husband was suffering from various serious deceases like brain knot

and heart attack. It is further contended that at the time of

execution of the gift deed, the deceased was not in a position to

understand what was going on and what kind of document was

being executed. In short, it is the contention of the appellant that

her deceased husband was not of sound mind at the time of

execution of the gift deed. In her counter claim, the appellant had

prayed for declaring the said gift deed as null and void. In the

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written statement to the counter-claim filed by the respondent, it is

contended by the respondent that she had shifted to the suit flat

with her husband on 25 th October, 2009 on the very day when the

licensee vacated the suit flat. The respondent had, therefore,

prayed for dismissal of the counter-claim with costs.

9. After framing issues and recording evidence of the parties, the

learned trial Court by the impugned judgment, partly decreed the

Suit No. 2535 of 2005 in terms of prayer clauses (a) and (b). The

counter claim No.1 of 2010 was dismissed. The trial Court, inter

alia, extended the order of status-quo for a period of 8 weeks from

the date of the judgment.

10. The First Appeal was admitted on 25 th November, 2013.

Subsequently, by an order dated 19 th September, 2014, the appeal

came to be expedited in view of the fact that the respondent is a

senior citizen.

11. On 16th June, 2023, Mr. Gulabrao Awasarmol, learned

Counsel for the respondent submitted that since the respondent is

now 91 years old, who has been dispossessed from the suit flat by

the appellant despite their being an order of status-quo continued

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by this Court, the matter needs to be heard expeditiously and

finally.

12. The appellant appeared in person before this Court on 13 th

July, 2023. She had submitted that her advocate Ms. Usha Purohit

had winded up and left for Goa. The appellant further submitted

that she does not wish to prosecute the appeal by stating that

whatever be the judgment, would be acceptable to her. This Court,

however, in the interest of justice, granted one more opportunity to

the appellant to reconsider her request as to whether she wish to

prosecute the appeal or otherwise and to make an appropriate

statement on the next date. The appellant had tendered copy of

her Pan Card, Identity card issued by the Municipal Corporation of

Greater Bombay as well as identity of the Income Tax Department,

in proof her identity.

13. Consequently, on 20th July, 2023 the appellant had tendered a

communication dated 20th July, 2023 stating that she does not wish

to prosecute the appeal. She again reiterated whatever the

judgment which would be passed by this Court, will be acceptable

to her. The said communication was taken on record and marked

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"X" for identification.

14. The matter was thereafter heard on 3 rd August, 2023. The

appellant was personally present in the Court and reiterated what

she had stated before this Court on the earlier dates.

15. I heard Mr. Awasarmol, learned Counsel for the respondent.

I have also meticulously gone through the record and proceedings

as well as the impugned judgment.

16. Even if the appellant had declined to prosecute the appeal, it

would be expedient to go through the grounds of appeal raised by

the appellant. It is stated in the memo of appeal that in order to

prove the cordial relations between the appellant with her husband,

there was sufficient evidence on record. The evidence adduced by

the respondent is not sufficient to prove the contents of the gift

deed, since no attesting witnesses has been examined. The next

ground in the memo of appeal is that the evidence in the form of

gift deed has not been correctly appreciated since the mental

condition of the deceased Darshak was not proper at the relevant

time. It is also a ground in the memo of appeal that in view of

Section 68 of the India Evidence Act, gift deed cannot be admitted

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in the evidence as its execution is not proved by two contesting

witnesses. Several case laws were cited before the trial Court.

17. In order to substantiate her contention of state of

unsoundness of mind of the deceased - Darshak, the appellant had

examined 3 medical experts. As already stated hereinabove, the

appellant had contended that her husband had executed the

registered gift deed dated 29th June, 2005 in favour of his mother

while he was not in a sound state of mind.

18. Evidence of DW-4 Dr. Rajat Deb Burman (Exh.75), DW-5 Dr.

Sachin Govind Bhosale (Exh.76) and DW-6 Dr. Abdul Samad Ansari

(Exh.81) would be relevant as all those witnesses were independent,

in the sense, they are neither related to the parties nor had any

interest in the subject matter of the suit.

19. DW-4 Dr. R.D. Burman was a doctor on the panel of Air

India. He had given medical history sheet of the deceased -

Darshak Santosh Ghegadmal which was maintained by the office.

Entries in the medical history sheet attached with Exh.52 were

made by previous Doctor. His evidence reveals that there is a

mention about the infection in the brain. There is also mention of

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HIV Positive and that the deceased was taking regular medicines for

heart problem. It is the evidence of this witness that the deceased

was also suffering from infection of Eoxoenasmosis and Puber

phemosis i.e. infection in brain. There is nothing in the evidence

of this witness indicating unsoundness of mind of the deceased

Darshak.

20. Similarly, DW-5 Dr. Sachin G. Bhosale did not say anything as

regards any ailment of the deceased in respect of unsoundness of his

mind or as regards his mental fitness.

21. The evidence of DW-6 Dr. Abdul Samad Ansari reveals that

the deceased was a patient of Ischemic Heart Disease for one year.

His angioplasty was done a year before. According to this witness,

in the month of March, 2005 deceased was admitted in Nanavati

Hospital with complaint of slurring of speech, blurred vision and

difficulty in walking. The Doctor, on thorough investigation,

noticed that the deceased was suffering from cerebral toxoplasmosis

in the left temporo-occipital region. According to this witness,

toxoplasmosis is a brain infection which occurs most commonly in

immune comprised individuals. It was informed by the wife of the

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deceased to this witness that the patient had taken discharge against

the medical advice from Nanavati Hospital and got admitted in

Lilavati Hospital. From Lilavati Hospital, he was discharged on

16th April, 2005.

22. Having considered the evidence of the aforesaid three expert

witnesses, there is nothing to indicate that the deceased, though was

suffering from cerebral toxoplasmosis, was of unsound mind as

contended by the appellant.

23. Even from the exhibited documents i.e. Exh.57 and 58,

which are the health record for serving employee as well as from

the papers of Lilavati Hospital, there is nothing to indicate about

the unsoundness of mind of the deceased - Darshak.

24. DW-6 Dr. Abdul S. Ansari in his cross-examination had

specifically deposed that it would be unfair on his part to say that

the patient was of unsound mind as he was not a neurologist.

Essentially, in order to establish unsoundness of mind of the

deceased, the best witness or evidence would have been that of a

Neurologist, which is not on record. The evidence adduced on

behalf of the appellant is, therefore, cannot be accepted as the

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proof indicating unsoundness of mind of her deceased husband.

25. Interestingly, it has come in the evidence of DW-6 Dr. Abdul

S. Ansari that the appellant had not informed the doctors of any

such mental illness while giving history of her husband. This

speaks volumes as regards conduct of the appellant.

26. The learned trial Court has, therefore, rightly observed that

the appellant had failed to discharge the burden of proof of the

alleged unsoundness of mind of her husband.

27. There is no legal necessity to examine at least one attesting

witness in case of registered gift deed as Section 68 of the Indian

Evidence Act only contemplates examination of at least one

attesting witness for proving execution of the document, if a

document is required by law to be attested. Mostly, in case of a

Will, such examination of at least one witness is essential to prove

the execution of the Will. The learned trial Court has, therefore,

rightly observed that since it was a registered gift deed as per

Section 17(1)(a) of the Registration Act, 1908 there was no legal

necessity to examine the attesting witness as gift deed is a

compulsorily registrable document. The appellant had not disputed

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the execution of the gift deed. The only ground raised by the

appellant is unsoundness of mind of her husband.

28. As such, the evidence of all the medical experts is not helpful

to the appellant in establishing her case as regards mental illness of

her husband. Even in her evidence, there was nothing from which

it can be inferred that any fraud or undue influence had been played

upon the deceased by the respondent at the time of executing the

gift deed. A suggestion appears to have been given to the

respondent that due to illness deceased was not able to sign, which

she had denied. There is no specific evidence as regards alleged

fraud played upon the deceased by the respondent. It is difficult to

accept as to why a mother would play a fraud upon her ailing son in

order to grab the suit flat. Be that as it may.

29. It has been admitted by the appellant in the written statement

that the suit flat was given on leave and licence to one C.R.

Rukmini and was vacated by her on 25 th October 2009. It was,

therefore, obvious that the appellant was not in possession during

the period of license. As regards the possession of the respondent

and her husband over the suit flat is concerned, the police report

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(Exh.50) lodged by the appellant with Nehru Nagar Police Station

on 24th May, 2009 itself indicates that she sought protection from

the police for entering into the suit flat as according to the

appellant, it was owned by her husband. It is apparent that she

had entered into the suit flat only after the death of her husband

and was not in occupation of the suit flat prior to his death.

30. The trial Court has rightly appreciated the evidence of the

witnesses in that regard. It has been rightly concluded that the

appellant is not entitled for any relief as claimed in her counter-

claim No.1 of 2010 and, therefore, the trial Court had partly

decreed the respondent's suit.

31. I, therefore, do not see any reason to interfere in the

impugned judgment and decree passed by the trial Court.

32. Consequently, the appeal is devoid of merits and hence, it

stands dismissed with costs.

33. In view of the dismissal of the appeal, the Civil Application,

does not survive and the same is also disposed of.

(PRITHVIRAJ K. CHAVAN, J.)

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