1 Bsb IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION SECOND APPEAL NO. 817 OF 2003 ALONG WITH CIVIL APPLICATION NO. 1249 OF 2003 Balkrishna Atmaram Khandagale & ors. ... Appellants v/s Sonu Atmaram Khandagale & ors. ... Respondents Mr.Amit Borkar i/by Mr.R.D.Suryawanshi for the appellants. Ms.Gauri Godse for respondent No.1. CORAM: SMT.NISHITA MHATRE, J. DATED: 16TH APRIL, 2010 P.C.: 1. The appellants have filed the present second appeal against the judgment and order of the Appellate Court i.e. the Joint District Judge, Ratnagiri. By this order, the appeal filed by the plaintiff has been allowed and the suit has been decreed. 2. The main contention raised by Mr.Borkar appearing for the appellant is that both the Courts below have erred in 2 accepting the gift deed dated 27.7.1986 without it being proved to be genuine. Reliance is placed on the judgment of the Supreme Court in the case of K.Laxmanan v/s Thekkayil Padmini & ors., reported in (2009) 1 SCC 354, in support of his submission that the execution of the gift deed can be proved through attesting witnesses. 3. The learned advocate submits that, in the present case, the attesting witnesses were not examined and, therefore, the gift deed has not been proved as required by law. 4. This submission is untenable in view of the fact that the donor has stepped into the witness box and has admitted execution of the gift deed in favour of the plaintiff. Once the donor steps into the witness box and admits the execution, the question of the attesting witnesses also deposing before the Court does not arise. It will be only when the donor is not available that the documents would have to be proved through the attesting witnesses. Therefore, this judgment has no application. 5. The next submission of Mr.Borkar is that the possession of the property must be delivered simultaneously with the execution of the gift deed as required under Section 123 of the Transfer of Property Act. 3 6. In my opinion, this submission also is unsustainable as the delivery of the possession of the property simultaneously with the execution of the deed is not mandatory under Section 123 of the Transfer of Property Act. 7. The second appeal stands dismissed along with the civil application. ..... 4