JUDGMENT : By this Second Appeal the original defendants are challenging the concurrent judgments and decrees delivered by the Courts below, whereby the suit filed by one Shri. Ramji and his wife Bhimabai against the appellants for declaration and permanent injunction came to be decreed and they were restrained permanently from disturbing the peaceful possession and enjoyment of Ramji and Bhimabai. It is not in dispute that the respondent died during the pendency of the suit.

2. The facts are not much in dispute and controversy revolves around interpretation and effect of a document Exh.55. The Second Appeal has been admitted on 06-04-1993 by noticing that question involved in this appeal is about construction of a document Exh.55. The present appellants claim that Exh.55 is a Gift deed as contemplated by Section 123 of the Transfer of Property Act and the Courts below have concurrently found that it is a Will and therefore the testator Ramji [original plaintiff] could have revoked it at any point of time.

3. The plaintiffs approached the trial court with a grievance that they intended that during his life time and life time of his wife, the property covered in Exh.55 should remain in their ownership and possession and it was to pass on to the present appellants only after their death. They contended that both of them were carried to the office of the Sub-Registrar for preparation of such a document and a document like Exh.55 was then obtained from them. Plaintiffs stated that conduct of the original defendants in claiming exclusive ownership and efforts to obtain mutation during their life time were contrary to the document and contrary to their own intention. The present appellants defendants opposed the suit, but accepted ownership of the plaintiffs. They stated that at the time of filing of written statement, original plaintiffs were in possession. However, they denied rest of the allegations. They contended that there was a gift deed executed on 1-5-1971 by the plaintiffs and as per that gift deed entire property was to remain in possession of plaintiff, his wife till their death and thereafter only the defendants were to enter possession. They contended that ownership was fully transferred to them by the said document and they were therefore Owners of the said property. Trial court framed issues and found that the defendant could not prove that gift deed dated 11-05-1971 was irrevocable. It found that defendant had no right, title or interest to suit property. In view of its findings it declared that the defendants have no right, title or interest in suit property and granted permanent injunction with costs to the plaintiffs. In Regular Civil Appeal No.4821 1985 filed by the present appellants, the lower appellate court framed the following points and answered the same as under :

"1. Whether Plaintiff Ramji Thakre wanted to bequeath or donate the suit

property under document Exh.55 ?

... He wanted to bequeath suit property

2. Whether the suit is tenable in the present form?

... Yes

3. Whether the suit is within limitation?

... Yes.

4. What order?

... As per final order. "

It found that document was Will and not Gift and therefore it dismissed the appeal.

4. In this background I have heard Advocate Shri. V. A. Kothale, for appellants. He contended that the evidence on record clearly demonstrated that Ramji had consulted others about execution of document and stamp for its execution was purchased at least 7 days in advance. He invites attention to evidence of P.W.2 - Shri. Raut, to state that P.W.2 had clearly stated that Ramji had intention to execute Gift deed in relation to the suit property. He argues that the Gift deed was to take effect after death of Ramji and his wife Bhimabai and as such interpretation of said document by courts below is erroneous. It is his further contention that Ramji expired after institution of the suit and therefore. he could not be cross-examined in relation to his intention or in relati

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