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Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.1241 OF 2005

Vathsala Manickavasagam & Ors.    ….  Appellants

VERSUS N. Ganesan & Anr.   …. Respondents

J U D G M E N T

Fakkir Mohamed Ibrahim Kalifulla, J.

1. This appeal is directed against the Division Bench judgment of  

the Madras High Court dated 19.06.2003, in A.S.No.367 of 1985.   

2. Originally  the  suit  for  partition  was  filed  by  one  late  

Mrs.Nagarathnam, along with her two sons late Manickavasagam  

and  Saravanamurthi  as  well  as  her  daughter  Sethulakshmi  as  

plaintiffs 3, 2 and 4.  The present first appellant is the wife of the  

late Manickavasagam, the third plaintiff, along with her sons, the  

second appellant and the third appellant.  The fourth appellant is  

the second plaintiff and the fifth appellant is the fourth plaintiff.  

The first defendant who is the first respondent herein is also the  

son of the first plaintiff.  The second respondent was the second  

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defendant  in  the  suit,  who  purchased  the  property  from  one  

Barnabass Nadar,  to whom the first  defendant earlier  sold the  

suit property on 11.11.1978.   

3. The suit was for partition.  The plaintiffs claim 4/5th shares in  

respect of three items of the suit properties, which was decreed  

by  the  Trial  Court,  as  against  which,  the  first  respondent/first  

defendant, filed the first appeal before the High Court.  The High  

Court  by  the  impugned  judgment,  modified  the  judgment  and  

decree of the Trial Court and held that the decree with reference  

to item Nos.1 and 2 of the suit properties, cannot be sustained  

and that the decree of the Trial Court for partition, was confirmed  

only in respect of the third item of the suit property and that the  

preliminary decree for partition in respect of the third item of the  

suit property was alone granted.  It is against the said judgment  

and  decree  of  the  Division  Bench  of  the  High  Court,  the  

appellants have come forward with this appeal.

4. The  simple  case  of  the  plaintiffs  in  the  suit  was  that  the  

plaintiffs and the first defendant, are the descendants of the late  

Nithyanandam, who died intestate on 22.09.1956.  They filed the  

suit for partition for their 4/5th  shares in respect of items 1 to 3.  

The first item of the suit property was sold by the first defendant  

to  one Barnabass  Nadar,  on 11.11.1978,  who in  turn  sold  the  

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property to the second defendant/second respondent.  It was the  

common case that the deceased Nithyanandam had no ancestral  

property and that his  wife,  sons and daughter have got  equal  

share in the property.  Therefore, as regards the eligibility and  

extent  of  share,  there  was  no  dispute.   According  to  the first  

defendant/first respondent herein, out of the three items of the  

suit properties, the first and second items of properties were the  

exclusive properties of the first defendant and therefore, others  

were not entitled for any share in it.

5. So  far  as  the  first  item  of  the  property  was  concerned,  

according to the first defendant, the said property was gifted to  

him by his father and that the second item of the property was  

purchased by him by selling the jewels of his wife, as well as from  

the money advanced by his father-in-law to him.

6. The trial Court framed as many as 8 issues for consideration.  

Issue  Nos.1  to  3  related  to  the  stand  of  the  first  respondent  

herein that the first item of the suit property was gifted in his  

favour by his father and that the second item of the property was  

purchased from the proceeds of the jewels belonging to his wife,  

as well as, from the money advanced by his father-in-law.  The  

third issue related to the question as to whether items 1 to 3 of  

the suit schedule properties, were the joint family properties, as  

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claimed by the plaintiffs.  The question relating to limitation, with  

regard to the claim of items 1 and 2 of the suit properties, was  

the  4th issue.   The  5th issue  related  to  the  question  whether,  

proper Court Fee was mentioned in the plaint.  The sixth issue  

related  to  the  entitlement  of  equity  claimed  by  the  second  

defendant/second respondent herein, as regards the first item of  

the suit schedule property.  The last two issues related to the  

entitlement  of  the  plaintiff  for  partition  and  the  relief  to  be  

granted.   

7. The first item of the suit property is a house property, in a site  

measuring 10,000/- sq.ft. in T.S.No.2951/3, at Arulananda Nagar,  

Thanjavur.  The said house site was allotted by a Housing Society  

called Little Flower Colony House Building Co-operative Society,  

and the same was purchased by late Nithyanandam, in the name  

of his eldest son viz., the first defendant/first respondent herein.   

8. The  second  item of  the  suit  property  is  also  a  house  site  

bearing  Door  No.17/35,  purchased  in  the  name  of  the  first  

defendant on 21.10.1964, from one Visalakshmi Ammal, which is  

located in Rajappa Nagar, Thanjavur.  The third item of the suit  

property is also a house and since there is no dispute about the  

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status of the property as a joint family property, we need not deal  

with the same in detail.     

9. The  trial  Court  while  answering  the  issues,  considered  the  

evidence both oral and documentary and reached a conclusion  

that even suit items 1 and 2 though were also purchased in the  

name of the first defendant yet they were joint family properties  

and therefore, the plaintiffs were entitled to claim a share in all  

the three items of the suit schedule properties.  

10. Having heard the learned counsel for the appellants, as well  

as  the  respondents  and  having  bestowed  our  serious  

consideration to the judgments of the Division Bench of the High  

Court, as well as that of the Trial Court and other material papers  

placed before  us,  we feel  that  the  controversy,  which  centers  

around this appeal will have to be briefly stated to appreciate the  

respective contentions of the parties.

11. The appellants and the first respondent are the descendants  

of late Nithyanandham, who died intestate on 22.09.1956.  His  

wife,  the  first  plaintiff,  along  with  her  deceased  son  

Manickavasagam, 4th and 5th appellants, filed a suit for partition,  

as against the first respondent herein.  During the pendency of  

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the litigation before the High Court, the first plaintiff viz., the wife  

of the late Nithyanandham, as well as one of her sons, the third  

plaintiff Manickavasagam also died. The wife and the children of  

late Manickavasagam viz., appellants 1 to 3, therefore, came to  

be impleaded along with appellants 4 and 5.   

12. The  suit  was  for  partition  in  respect  of  three  items  of  

properties.  As far as the third item of the property is concerned,  

the first respondent tacitly admitted the same to be a joint family  

property  and  conceded  for  partition  of  4/5th  share  of  the  

plaintiffs.  As far as the first item of the suit schedule property is  

concerned, according to him, though funds were provided by the  

late Nithyanandham for purchasing the same from a Co-operative  

Housing  Society  viz.,  Little  Flower  Colony  House  Building  Co-

operative Society, it was gifted to him by his father and therefore,  

it was purchased in his name.  The first respondent, therefore,  

claimed that the suit property was his absolute property.   

13. As far as the second item of the property is concerned, the  

first respondent claims that the suit property was purchased from  

out of the funds provided by his Father-in-law at the time of his  

marriage,  which  he  kept  in  a  Fixed  Deposit  in  a  Co-operative  

Bank, which got matured in 1964 and that the balance amount  

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was paid by disposing of his wife’s jewels.  The first respondent  

therefore,  claimed  that  the  suit  property  was  also  his  own  

property and, therefore, the appellants were not entitled for any  

share in the 1st and 2nd items of suit properties.

14. As already stated, the trial Court rejected the stand of the  

first  respondent and held that the appellants  were entitled for  

partition in respect of all the three properties, as they were joint  

family properties.  The High Court however, held that except the  

suit  third  item of  the  property,  the  first  and  second  items  of  

properties  were  exclusive  properties  of  the  first  respondent  

herein and therefore, the preliminary decree was restricted to the  

third item of property and in other respects the judgment of the  

trial Court was set aside.

15. The  trial  Court  while  granting  the  relief  in  favour  of  the  

appellants,  considered the oral  evidence  of  P.W.1,  the  mother  

and Ex.A-17 in particular.   The High Court  while  reversing the  

judgment of the Trial Court placed reliance upon the release deed  

executed by the first respondent in the year 1959 viz., Ex.A-3 and  

partition deed of the year 1973, which was entered into between  

the four plaintiffs in which document the first respondent affixed  

his signature.  The High Court took the view that having regard to  

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the release deed of the year 1959 viz. Ex.A-3 and the partition  

deed of the year 1973 viz., Ex.A-28, it was established that the  

first  and  second  items of  the  suit  scheduled  properties  which  

were  purchased in  the name of  the first  respondent  were the  

exclusive  properties  of  the first  respondent  and therefore,  the  

appellants were not entitled for partition in those properties.

16. In light of the above factors, the question of law that arise for  

consideration in  this  appeal  is  as  to  “whether  there was  total  

misreading of evidence by the High Court by not considering or  

referring to Ex.A-17 while interfering with the judgment of the  

Trial Court and whether legal principles of gift were established in  

regard to the first item of the suit schedule property.”

17. Mr.S.Nanda  Kumar,  learned  counsel  for  the  appellants  

vehemently contended that at the time when the first item of the  

suit scheduled property was purchased, the first respondent was  

only a student, that the evidence of the mother P.W.1, discloses  

that  the  property  was  purchased  in  his  name  after  due  

deliberations by the husband and wife and in order to avoid any  

violation of service conditions of the late Nithyanandham, who  

was then working as a Joint  Registrar  of  Co-operative Society.  

The learned counsel  contended that the Trial  Court considered  

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the documents relating to the said properties as per Ex.No.A-10  

produced by the plaintiffs,  which  persuaded the Trial  Court  to  

hold  that  the  first  item  of  the  suit  scheduled  property  was  

purchased by the late Nithyanandham in the name of his son only  

to  avoid  any  violation  of  the  rules  relating  to  his  service  

conditions and that the first respondent failed to show that it was  

gifted  to  him  by  his  father  as  claimed  by  him.   The  learned  

counsel contended that none of the ingredients relating to gift  

was neither pleaded nor proved by the first respondent.

18. As far as the second items of the suit scheduled property is  

concerned, the learned counsel contended that in the first place,  

the trial Court had specifically found that the terminal benefits,  

which  were  settled  pursuant  to  the  demise  of  late  

Nithyanandham, were sufficient enough for the purchase of the  

second item of the suit scheduled property, as well as, the third  

item of the suit scheduled property and that the claim of the first  

respondent  that  the  same  was  purchased  from  the  funds  

provided by his father-in-law and from the sale proceeds of the  

jewels of his wife, were not conclusively proved.   

19. The  learned  counsel  pointed  out  that  while  the  first  

respondent  in  his  submission  claimed  that  for  purchasing  the  

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second item of the suit schedule property, he utilized a sum of  

Rs.10,000/-  advanced  by  his  father-in-law  at  the  time  of  his  

marriage and for the balance, he utilized the sale proceeds of his  

wife’s jewels, in the oral evidence let in on his side was to the  

effect that the balance sale consideration was paid by his father-

in-law and his brother-in-law in several installments, which was  

contradictory to his earlier stand in the written statement.

20. The learned counsel further contended that having regard to  

his  prevaricating  stand,  one  in  the  written  statement  and  the  

other  in  the  oral  evidence,  the  trial  Court  rightly  rejected  the  

claim of the first respondent and chose to decree the suit.  He  

further pointed out that de hors the above glaring contradiction in  

the written statement and the oral evidence let in by the first  

respondent,  there was a tacit admission in Ex.A-17, which was  

relied  upon  by  the  Trial  Court  to  conclude  that  all  the  three  

properties of the suit schedule were the joint family properties in  

which  the  plaintiffs  and  the  first  respondent  were  entitled  for  

equal  share.   The  learned  counsel  further  contended  that  the  

High  Court  miserably  failed  to  examine  the  above  relevant  

material  piece of evidence namely Ex.A17, while reversing the  

judgment of the trial Court.

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21. As  against  the  above  submissions,  Mr.A.T.M.Sampath,  

learned counsel  appearing for the respondents  contended that  

the Division Bench of the High Court was well justified in relying  

upon Exs.A-3 and A-28 apart  from Ex B-11 viz.  the sale deed  

which  stood in  the name of  the  first  respondent,  to  hold  that  

items  1  and  2  of  the  suit  scheduled  properties  exclusively  

belonged to the first respondent.  The learned counsel pointed  

out that if really items 1 and 2 of the suit scheduled properties  

were also part of the joint family properties, it was not known as  

to why they were not part of the release deed executed by the  

first  respondent  under  Ex.A-3  and  also  part  of  Ex.A-28  the  

partition deed, as between the four plaintiffs, in which document,  

the first respondent also affixed his signature.

22. The learned counsel further contended that the parties were  

well aware by 1959, as well as by 1973 that items 1 and 2 of the  

suit schedule properties, were the exclusive properties of the first  

respondent and, therefore, the parties never intended to include  

those two properties, either for the purpose of the release to be  

executed by the first respondent nor for the purpose of partition,  

as  between the plaintiffs  and the  first  respondent  in  the year  

1973.

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23. Having heard the learned counsel for the respective parties,  

we are of the considered opinion that at the forefront, it will be  

necessary to consider the effect of Ex.A-17, in as much as, the  

said document is fully controlled by Section 17 of the Evidence  

Act. Section 17 of the Evidence Act reads as under:

“S.17.  Admission  defined:-  An  admission  is  a  statement,  oral  or  documentary  or  contained  in   electronic form, which suggests any inference as to  any fact in issue or relevant fact, and which is made  by any of the persons, and under the circumstances,   hereinafter mentioned.”

24. As  far  as  the  principle  to  be  applied  in  Section  17  is  

concerned,  the  Section  as  it  reads  is  an  admission,  which  

constitutes a substantial piece of evidence, which can be relied  

upon for proving the veracity of the facts, incorporated therein.  

When once, the admission as noted in a statement either oral or  

documentary is  found,  then the whole onus would shift  to the  

party  who  made  such  an  admission  and  it  will  become  an  

imperative duty on such party to explain it.  In the absence of any  

satisfactory explanation, it will have to be presumed to be true.  

It is needless to state that an admission in order to be complete  

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clear, certain and definite, without any ambiguity, vagueness or  

confusion.   In  this  context,  it  will  be  worthwhile  to  refer  to  a  

decision of this Court in Union of India  Vs. Moksh Builders  

and Financiers Ltd. and others - AIR 1977 SC 409 wherein it  

is held as under:

“…It  has  been  held  by  this  Court  in  Bharat  Singh  v. Bhagirath [1966] 1 SCR 606 = AIR 1966 SC 405 that   an  admission  is  substantive  evidence  of  the  fact   admitted,  and  that  admissions  duly  proved  are  "admissible evidence irrespective of whether the party   making them appeared in the witness box or not and   whether  that  party  when  appearing  as  witness  was   confronted with those statements in case it  made a   statement contrary to those admissions." In taking this   view this  Court  has noticed the decision in  Ajodhya   Prasad Bhargava v. Bhawani Shanker - AIR 1957 All 1  (FB) also.”

25. Keeping  the  said  statutory  provision  in  mind,  when  we  

consider the contents of  Ex.A-17, which is  in Tamil,  is  a letter  

written by the first respondent himself on 24.06.1974.  The said  

letter  was addressed to  the third  plaintiff  Mr.Manickavasagam.  

The contents of the said letter read as under:

“The second plaintiff Saravanamurthi, came to my house  the  day  before  yesterday  at  around  09.30  p.m.   He   stated that something should be immediately arranged,   

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as regards the house properties.  He also asked what is   the justification in all the three house properties in my   name.   I  told  him  that  you  can  be  called  and  some  arrangement can be made.   I  am not  able to  explain   everything in this letter.  He was in a very rash mood  and was behaving in an unruly manner.  At one stage, I   was driven to the position that he can do whatever he   likes.   At  10.00  clocks  in  the  night,  I  told  him  what   arrangement could be made.  But he was not in a sane  mood. However much I told him that it was not my fault   in purchasing all the three properties in my name and   that I am not keen to have all the three properties.  I was   terribly upset by his behavior.  At one stage, I asked him  to  get  out.   While  going  out,  he  expressed  that  the   relationship cannot be continued thereafter.  About this   you need not inform mother or murthi himself.”

26. While  examining  the  contents  of  the  said  letter,  the  Trial  

Court  concluded  that  the  three  house  properties,  referred  to  

therein, only related to the suit scheduled properties.  Going by  

the statements made by the first respondent himself in the said  

letter  Ex.A-17,  it  was  explicit  and  apparent  that  the  first  

respondent was fully aware that even though the properties were  

in his name, he was not responsible for purchasing the same in  

his name and that he was not interested in having all the three  

properties for himself.

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27.  When  we  examine  the  said  document,  we  find  that  the  

conclusions arrived at by the trial Court based on the contents of  

Ex.A-17, cannot be found fault with.  In fact, Ex.A-17, came into  

existence only on 24.06.1974.  It is not as if the first respondent  

disowned the said document.  The contents of the said document  

were also not disputed by the first respondent.  It is not the case  

of the first respondent that the three houses referred to in the  

said  document,  related to  any other  properties  other than the  

suit-scheduled properties.  It is also not his case that the name  

and persons mentioned therein, related to somebody else other  

than his own brother, the second plaintiff and his mother.  The  

first respondent had also not lead any evidence to disprove Ex.A-

17.   

28. Keeping the above factors in mind, when we apply Section 17  

of the Evidence Act, we find that Ex.A-17 is a statement and the  

details  contained therein,  which pertains to the suit  scheduled  

properties, constituted a tacit admission at the instance of the  

first respondent.    If after Ex.A-3, release deed of 1959 and the  

partition deed, Ex.A-28 of 1973, in 1974, the first respondent on  

his own, came forward with the said letter to the third plaintiff  

admitting in so many words as to the status of the suit scheduled  

properties, vis-à-vis the concerned parties themselves, we fail to  Civil Appeal No.1241 of 2005                                                            15 of  24

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understand as to what wrong was committed by the Trial Court in  

placing reliance upon the same to decree the suit.  If in reality,  

the first respondent had his own reservations as to the ownership  

of the suit scheduled properties, in particular items 1 and 2, no  

one prevented him from stating so in uncontroverted terms, while  

communicating the same in the form of writing, to one of his own  

brothers.   In  fact,  the  grievance  of  the  second  plaintiff  

Saravanamurthi, was that since the properties were purchased in  

the name of the first respondent and he being the eldest son of  

the family, was having an upper hand over all the others and was  

trying to snatch away the properties.  The tone and tenor of the  

letter  viz.,  Ex.A-17, authored by the first  respondent,  discloses  

that he too was not very keen to grab all the three properties,  

simply because those properties were purchased in his name.  He  

went  to  the  extent  of  stating  that  he  was not  responsible  for  

purchasing all the three house properties in his name.  He went  

one step further and stated that he did not want to possess all  

the three properties all time to come.  If, such a clear-cut mindset  

was  expressed by the first  respondent  though Ex.A-17,  it  was  

futile on his part to have come forward with any other story after  

the suit came to be filed by the plaintiffs.   

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29. As  rightly  pointed  out  by  the  learned  counsel  for  the  

appellants, the stand of the first respondent in his statement as  

regards the second item of the suit schedule property, was that  

the sale consideration of Rs.18,200/- was paid partly from a sum  

of Rs.10,000/-, paid to him by his father-in-law and the remaining  

sum by disposing of his wife’s jewels.  The Trial Court has noted  

that in support of the said stand, no piece of evidence was lead  

before it.  On the other hand, giving a go-by to the said stand  

that the balance sale consideration was met by disposing of his  

wife’s jewels, evidence was lead to show as though the remaining  

sale consideration was paid by his father-in-law and brother-in-

law in installments.   The above stand contained in the written  

statement  and  lead  by  way  of  oral  evidence,  were  fully  

contradictory and, therefore, the one belied the other.  

30. The specific case of the first respondent, as regards the  

first item of the suit property was that his father gifted the said  

property to him.  Except for the said plea ipse dixit, there was  

nothing on record  to  support  the said  stand.   Reliance was  

placed upon Exs.B1  to  B6,  which  were  the  communications  

between  Nithyanandam  and  Little  Flower  Colony  House  

Building Society Ltd., Thanjavur in the year 1955-56.  Ex.B4,  

was  a  letter  by  the  said  Society  dated  24.02.1955,  which  Civil Appeal No.1241 of 2005                                                            17 of  24

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informed  Nithyanandam  about  the  allotment  of  plot  in  his  

favour  and  also  asking  him  to  deposit  the  sale  value  of  

Rs.300/- and a sum of Rs.150 for reclamation and charges for  

transfer of land in his favour.  On the same day, under Ex.B5,  

he wrote a letter expressing his acceptance.  Under Ex.B6, he  

deposited a sum of Rs.150/- towards charges for transfer of  

the land in his favour.   

31. P.W.1,  the  wife  of  Nithyanandam,  the  first  plaintiff,  

deposed that both of them discussed together and ultimately  

decided to purchase the first item of the suit property in the  

name of  the first  respondent.   Through her,  Exs.A1 and A2  

were produced to show that the house tax were paid in the  

year 1971-72, 1972-73 and 1973-74 by the family members, in  

respect of the said property though it stood in the name of the  

first respondent.  

32. It has also come in evidence that at that point of time, the  

first respondent was undergoing his graduation.  There was no  

gift  deed  by  the  late  Nithyanandam  in  favour  of  the  first  

respondent.   Till  the lifetime of  Nithyanandam, no evidence  

was  placed  before  the  Court  to  demonstrate  that  

Nithyanandam gifted away the said property in favour of the  

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first  respondent,  absolutely  and  that  the  first  respondent  

expressed his acceptance of the said gift.

33. Keeping the above facts in mind, when we examine the  

law  relating  to  gift,  under  Section  122  of  the  Transfer  of  

Property Act, a “gift” is defined as ‘transfer of certain existing  

movable or immovable 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”.  

The  section  also  mandates  that  “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.”

34. We are not concerned with the last part of the section.  

Going by the facts placed before the Court as stated earlier,  

except the ipse dixit statement made in the written statement,  

that late Nithyanandam gifted away the first item of the suit  

property in his  favour,  there was no other evidence lead in  

support of the said claim of gift.

35. In fact, at that time, when the property was purchased, the  

first respondent was a college going student.  Merely because  

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the  property  was  purchased  in  the  name  of  the  first  

respondent, it cannot be held that there was a valid gift in his  

favour, without any other evidence supporting the said claim.

36. Per contra, his own mother P.W.1, made it clear that since  

her husband Nithyanandam, was in the service of the State  

and was aware that a purchase of property would result in a  

direct violation of the rules relating to his service, the husband  

and wife viz., the father and mother of the first respondent,  

discussed  about  it  and  after  great  deliberation,  decided  to  

purchase it in the name of the first respondent.  If the property  

as contested by the first respondent had been gifted away to  

him in the year 1955, then it was not known, as to why he was  

not able to produce any other document connected with the  

property,  such  as  tax  receipts  or  other  revenue  records  to  

show that  he was enjoying the property absolutely,  without  

any hindrance from the other heirs of late Nithyanandam.

37. Per contra, Exs.A1 and A2, tax receipts, were produced by  

the  plaintiffs  to  show  that  the  property  was  managed  and  

maintained by the family and not by the first respondent.  That  

apart, under Ex.A17, the first respondent himself admitted that  

purchase  of  the  said  property,  along  with  the  other  two  

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properties in his name, was not his fault. In the said document,  

he also made it abundantly clear that he was not interested in  

retaining the property, simply because the property stood in  

his name.  Therefore, the claim of gift relating to the first item  

of the suit property was not proved to the satisfaction of the  

Court, both on law as well as on facts.  

38. Having regard to such a prevaricating stand taken by the first  

respondent, as compared to his tacit admission made in Ex.A-17,  

we  are  of  the  considered  view  that  the  Trial  Court  was  fully  

justified in holding that all the three items of the suit scheduled  

properties, were joint family properties, in which the plaintiffs and  

the first respondent were entitled for equal share.

39. Having regard to our above conclusions, when we examine  

the judgment of the Division Bench impugned in this appeal, we  

find that the Division Bench has completely omitted to examine  

the implications of Ex.A-17 which has relevance in respect of all  

the three suit schedule properties.  As noted by the Trial Court,  

Ex.A-17 was a very crucial piece of evidence, in as much as, it  

contains  the  tacit  admission  voluntarily  made  by  the  first  

respondent, while also establishing as to why the veracity of it’s  

nature was never questioned by him.  Since, there was no contra  Civil Appeal No.1241 of 2005                                                            21 of  24

Page 22

evidence  to  disprove  Ex.A-17,  the  first  respondent  was  totally  

bound by the said document. Since every ingredient of Section 17  

of the Evidence Act, relating to the said document, Ex.A-17 was  

fully  complied  with,  the non-consideration of  the  same by the  

Division  Bench  of  the  High  Court,  in  our  considered  opinion,  

would certainly amount to total misreading of the evidence, while  

interfering  with  the  judgment  of  the  trial  Court.  Similarly,  the  

Division Bench miserably failed to examine the issue relating to  

gift  as  regards the first  item of  the suit  scheduled properties.  

Though, such a claim was made by the first respondent, there  

was  no  iota  of  evidence  to  support  the  said  claim.   The  

ingredients of Section 122 of the Transfer of Property Act relating  

to gifts were not shown to have been complied with in order to  

support the said claim.

40. In fact,  while considering the relevance of Ex.A-17 and its  

application  to  the  case  on  hand,  the  Trial  Court  noted  the  

contradictory  statement  of  the  first  respondent  made  in  his  

written statement,  vis-à-vis  the oral evidence.   The Trial  Court  

has specifically noted the funds, which were available with the  

first respondent pursuant to his father’s demise, which was to the  

tune  of  Rs.20,887.93/-  and  which  was  kept  in  deposit  in  two  

accounts  in  the  name  of  the  first  respondent  himself.   One  Civil Appeal No.1241 of 2005                                                            22 of  24

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account was under Ex.A-25, which was a current account in which  

a sum of  Rs.10,919.44/-  was  available  and the other  one was  

under Ex.A.26, which was a savings bank account, where a sum  

of  Rs.9,968.49/-  was  available.   Both  put  together  a  sum  of  

Rs.20,887.93/-  was  available  and  therefore,  even  after  the  

purchase of the third item of the suit schedule property, the first  

respondent had a further sum available with him.  The trial Court  

has also noted that except the  ipse dixit of D.W.2 and 3 that a  

sum of Rs.10,000/- was paid to the first respondent by way of gift  

at the time of marriage of the first respondent with his daughter,  

there was no other evidence to support and provide credence to  

the said version.  Unfortunately, the Division Bench of the High  

Court completely omitted to examine the above material piece of  

evidence, which was considered in detail by the trial Court, while  

decreeing the suit.  

41. In the light of our above conclusions, the judgment of the  

Division Bench cannot be sustained.  The appeal stands allowed  

and  the  judgment  of  the  Division  Bench  is  set  aside  and  the  

judgment and decree of the Trial Court shall stand restored.   

………….……….…………………………..J.                          [Dr. B.S. Chauhan]

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   ...……….…….………………………………J.

               [Fakkir  Mohamed Ibrahim  Kalifulla]

New Delhi;  July 02, 2013.

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