VATHSALA MANICKAVASAGAM & ORS.versusN. GANESAN & ANR.

                          [2013] 7 S.C.R. 320


A            VATHSALA MANICKAVASAGAM & ORS.
                                     v.
                          N. GANESAN & ANR.
                    (Civil Appeal No.1241 of 2005)
                             JULY 02, 2013
B
         [DR. B.S. CHAUHAN AND FAKKIR MOHAMED
                   IBRAHIM KALIFULLA, JJ.]

         CODE OF CIVIL PROCEDURE, 1908:
c
         s. 96 - First appeal - Suit for partition decreed by trial court
    holding the suit properties as joint family properties relying
    on the statement made by first defendant in a letter as
    admissible - High Court reversed the judgment without
0   examining implications of the said letter - Held: Non
    consideration of the letter by the Division Bench of the High
    Court, 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
E   the issue relating to gift as regards the first item of the suit
    scheduled properties - Though, such a claim was made by
    defendant, there was no iota of evidence to support the said
    claim -The ingredients of s. 122 of the Transfer of Property Act
    relating to gifts were not shown to have been complied with -
    Judgment of High Court set aside and the judgment and
F   decree of trial court restored - Transfer of Property Act, 1882
    - s.122 - 'Gift' - Evidence Act, 1872 - s.17.

        EVIDENCE ACT, 1872:

G       s. 17 - Admission - In a suit for partition, letter of
    defendant produced by plaintiff wherein he had stated the suit
    properties as joint family properties - Held: Once, there
    admission is in a statement either oral or documentary, onus
    would shift to the party who made such an admission and it
H                                  320
    VATHSALA MANICKAVASAGAM & ORS. v. N.                    321
              GANESAN & ANR.
will become an imperative duty on such party to explain it --       A
In the absence of any satisfactory explanation, it will have to
be presumed to be true - In the instant case, the letter written
by defendant is a statement constituting a tacit admission --
Every ingredient of s. 17 relating to the said document was fully
complied with.                                                      B

     A dispute over property arose between a family
consisting of five members, namely, the mother, three
sons and one daughter. A suit for partition was filed by
the mother, two sons and the daughter against the eldest C
son of the family (defendant no. 1/respondent no. 1)
claiming 415th share in the suit properties which
comprised three houses, namely, items nos. 1, 2 and 3.
Item no. 1 was sold by defendant no. 1, and his vendee
further sold it to defendant no. 2. As regards item no. 3,
there was no dispute. With regard to item no. 1, the stand D
of defendant no. 1 was that it had been gifted to him by
his deceased father and item no. 2 was purchased by him
out of the funds arranged by him on his own. The trial
court relying on the evidence of the mother (PWI) and Ext.
A-17, a letter written by defendant no. 1 to plaintiff no. 3, E
held all the three items as joint family properties and ·
decreed the suit, as prayed. However, the Division Bench
of the High Court, in the first appeal, reversed the decree
in respect of item nos. 1 and 2.
                                                              F
     In the instant appeal, the question for consideration
before the Court was "whether there was total misreading
of evidence by the High Court by not considering or
referring to Ext.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 G
property."

    Allowing the appeal, the Court

     HELD: 1.1 An admission, as defined in s.17 of the              H
    322     SUPREME COURT REPORTS                [2013] 7 S.C.R.


A   Evidence Act, 1872 constitutes a substantial piece of
    evidence and can be relied upon for proving the veracity
    of the facts incorporated therein. 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
B   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. [Para 23 and 24] [332-D, F-G]

c       Union of India vs. Moksh Builders and Financiers Ltd. and
    Others 1977 (1) SCR 967 =AIR 1977 SC 409 - relied on.

       1.2 While examining the contents of Ext. A-17, the trial
  court concluded that the three houses referred to therein,
  only related to the suit scheduled properties. Going by
D the statements made by respondent no. 1 himself in the
  said letter Ext.A-17, it was explicit and apparent that he
  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
E having all the three properties for himself. The
  conclusions arrived at by- the trial court based on the
  contents of Ext.A-17, cannot be found fault with.
  Respondent no. 1 neither disowned Ext. A-17 nor did he
  lead any evidence to disprove it. Therefore, it was futile
F on his part to have come forward with any other story
  after the suit came to be filed by the plaintiffs. In view of
  s. 17 of the Evidence Act, Ext. A-17 is a statement and the
  details contained therein, which pertain to the suit
  scheduled properties, constituted a tacit admission at the
G instance of respondent no. 1. [para 26-28] [334-A-C, E-G;
  335-D]

        1.3 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
H
     VATHSALA MANICKAVASAGAM & ORS. v. N.             323
               GANESAN & ANR.
plea ipse dixit, there was nothing on record to support A
the said stand. There was no gift deed by the deceased
in favour of the respondent no. 1. Till his lifetime no
evidence was placed before the court to demonstrate that
he gifted away the said property in favour of respondent
no. 1, absolutely and that the latter expressed his B
acceptance of the said gift. [Paras 30 and 32] [336-A, F-
G]
     1.4 In fact, at that time, when the property was
purchased, the first respondent was a college going           C
student. Merely because the property was purchased in
the name of respondent no. 1, it cannot be held that there
was a valid gift in his favour, without any other evidence
supporting the said claim. Per contra, his own mother
(P.W.1), made it clear that since her husband was in the
service of the State and was aware that a purchase of         D
property would result in a direct violation of the rules
relating to his service, the couple decided to purchase it
in the name of respondent no. 1. Exts.A1 and A2, tax
receipts, were produced by the plaintiffs to show that the
property was managed and maintained by the family and         E
not by the first respondent. Respondent no. 1 was not
able to produce any document connected with the
property, to show that he was enjoying the property
absolutely, without any hindrance from the other heirs of
the deceased. Therefore, the claim of gift relating to the    F
first item of the suit property was not proved to the
satisfaction of the court, both on law as well as on facts.
[Para 35-37] [337-C-H; 338-A-B]

     1.5 The stand of the first respondent in his statement G
as regards the second item of the suit schedule property
to have been purchased by him partly with the money
paid by his father-in-law and the balance paid by selling
his wife's jewels, the trial court has noted that in support
of the said stand, no piece of evidence was led before it.
Besides the stand contained in the written statement and H
    324     SUPREME COURT REPORTS                  [2013] 7 S.C.R.


A   that taken in oral evidence, were fully contradictory and,
    therefore, the one belied the other. [Para 29) [335-E-H]

         1.6 Having regard to the prevaricating stand taken by
    the respondent no. 1, as compared to his tacit admission
    made in Ext.A-17, this Court is of the considered view that
B
    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. [Para 38) [338-B-C]

C        2.1 The Division Bench of the High Court has
    completely omitted to examine the implications of Ext.A-
    17 which has relevance in respect of all the three suit
    schedule properties. As noted by the trial court, Ext.A-17
    was a very crucial piece of evidence, in as much as, it
D   contains the tacit admission voluntarily made by
    respondent no. 1, while also establishing as to why the
    veracity of its nature was never questioned by him. Since,
    there was no contra evidence to disprove Ext.A-17,
    respondent no. 1 was totally bound by the said
E   document. Since every ingredient of s.17 of the Evidence
    Act, relating to the said document, Ext.A-17 was fully
    complied with, the non-consideration of the same by the
    Division Bench of the High Court, would certainly amount
    to total misreading of the evidence, while interfering with
F   the judgment of the trial court. [Para 39) [338-D-G]

         2.2 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 respondent no. 1, there was no iota of
G   evidence to support the said claim. The ingredients of
    s.122 of the Transfer of Property Act relating to gifts were
    not shown to have been complied with. [Para 39] [338-
    G-H; 339-A]

H         2.3 Besides, the Division Bench of the High Court
     VATHSALA MANICKAVASAGAM & ORS. v. N.                     325
               GANESAN & ANR.
  completely omitted to examine the material piece of                 A
  evidence, (namely, the documents showing the
· availability of funds for purchase of the property), as also
  the fact that there was no evidence to support and provide
  credence to the version of respondent no. 1. which was
  considered in detail by the trial court, while decreeing the        B
  suit. The judgment of the Division Bench of the High
  Court cannot be sustained and, as such, is set aside and
  the judgment and decree of the trial court restored. [Para
  40-41) [339-E-F)

                       Case Law Reference:                            c
      1977 (1) SCR 967           relied on              Para 24
     CIVIL APPELLATE JURISDICTION : Civil Appeal No.
 1241 of 2005.
                                                                      D
     From the Judgment and Order dated 19.06.2003 of the
 High Court of Judicature at Madras in Appeal Suit No. 367 of
 1985.

     S. Nanda Kumar, R. Satish Kumar, Parivesh Singh, Anjali          E
 Chauhan, S.K. Bandyopadhyay, Rakesh K. Sharma for the
 Appellants.

      A.T.M. Sampath, P.N. Ramalingam, T.S. Shanthi, Satya
 Mitra Garg for the Respondents.
                                                                      F
      The Judgment of the Court was delivered by

     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.           G
      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   H
    326      SUPREME COURT REPORTS                   [2013] 7 S.C.R.


A 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 defendant in the suit, who purchased the
B 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/Sth
  shares in respect of three items of the suit properties, which
  was decreed by the Trial Court, as against which, the first
C 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,
D 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
E 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
F suit for partition for their 4/Sth 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 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
G 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
H and therefore, others were not entitled for any share in it.
 VATHSALA MANICKAVASAGAM & ORS. v. N. GANESAN 327
  & ANR. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

     5. So far as the first item of the property was concerned,        A
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                8
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          C
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 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       D
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   E
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                F
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     G
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
                                                                       H
    328     SUPREME COURT REPORTS                    [2013] 7 S.C.R.

A   the 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
8
    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.

C     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
D 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
E   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 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
F   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
G 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
H by the late Nithyanandham for purchasing the same from a Co-
VATHSALA MANICKAVASAGAM & ORS. v. N. GANESAN 329
 & ANR. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

operative Housing Society viz., Little Flower Colony House          A
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.
                                                                  B
      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 was paid by disposing of his wife's jewels. The first C
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 alreaEly stated, the trial Court rejected the stand of D
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 E
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 F
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 G
respondent affixed his signature. The High Court took the view
that having regard to the release deed of the yea.r 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 H
    330      SUPREME COURT REPORTS                   [2013) 7 S.C.R.


A   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
8
    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."
c
         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,
D   discloses that the propertywas 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
E   the documents relating to the said properties as per Ex.No.A-
    10 pr9duced 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
F   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
G   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,
H   the third item of the suit scheduled property and that the claim
 VATHSALA MANICKAVASAGAM & ORS. v. N. GANESAN                  331
  & ANR. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

of the first respondent that the same was purchased from the           A
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
                                                                       B
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
                                                                       c
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   D
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          E
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               F
reversing the judgment of the trial Court.

     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            G
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        H
    332      SUPREME COURT REPORTS                  [2013] 7 S.C.R.


A   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
8
  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
C purpose of partition, as between the plaintiffs and the first
  respondent in the year 1973.

         23. Having heard the learned counsel for the respective
  parties, we are of the considered opinion that at the forefront,
D 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
E
          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
F 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
G 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 and to have the value and effect referred to therein,
H should be clear, certain and definite, without any ambiguity,
VATHSALA MANICKAVASAGAM & ORS. v. N. GANESAN 333
 & ANR. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

vagueness or confusion. In this context, it will be worthwhile to   A
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.
                                                                 8
     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 · C
     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 /ljodhya Prasad Bhargava v. Bhawani
     Shanker- AIR 1957 All 1 (FB) also."
                                                                    D
      25. Keeping the said statutory provisi~n 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:                      E

     "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, as
     regards the house properties. He also asked what is the
     justification in all the three house properties in my name. I F
     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 lie
     can do whatever he likes. At 10.00 clocks in the night, I G
     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 H
     334      SUPREME COURT REPORTS                    [2013] 7 S.C.R.


·A         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
8
     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
C    in his name and that he was not interested in having all the three
     properties for himself.

           27. When we examine the said document, we find that the
     conclusions arrived at by the trial Court based on the contents
D    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
E    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
F    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
G    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-a-vis the concerned parties
H    themselves, we fail to understand as to what wrong was
  VATHSALA MANICKAVASAGAM & ORS. v. N. GANESAN 335
   &ANR. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

  committed by the Trial Court in placing reliance upon the same A
  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 B
  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-c
  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 arrd stated that he did not want to possess all the three D
  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.
                                                                   E
      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 F
 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 G
 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.
                                                                   H
    336     SUPREME COURT REPORTS                   [2013] 7 S.C.R.


A        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.81 to 86, which were the communications
8   between Nithyanandam and Little Flower Colony House
    Building Society Ltd., Thanjavur in the year 1955-56. Ex.84,
    was a letter by the said Society dated 24.02.1955, which
    informed Nithyanandam about the allotment of plot in his favour
    and also asking him to deposit the sale value of Rs.300/- and
c   a sum of Rs.150 for reclamation and charges for transfer of land
    in his favour. On the same day, under Ex.85, he wrote a letter
    expressing his acceptance. Under Ex.86, he deposited a sum
    of Rs.150/- towards charges for transfer of the land' in his
    favour.
D         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
E   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,
F 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 first respondent,
G 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
H   movable or immovable property made voluntarily and without
 VATHSALA MANICKAVASAGAM & ORS. v. N. GANESAN 337
  & ANR. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

consideration, by one person, called the donor, to another,        A
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."                                                          B

     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      C
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 the property was purchased in the name of the first        D
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          E
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     F
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     G
Nithyanandam.

    37. Per contra, Exs.A 1 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          H
    338      SUPREME COURT REPORTS                  [2013) 7 S.C.R.


A respondent. That apart, under Ex.A17, the first respondent
  himself admitted that purchase of the said property, along with
  the other two 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
B 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
C 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.

D        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
E   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 evidence to disprove Ex.A-17, the first
F   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
G   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
H   support the said claim. The ingredients of Section 122 of the
 VATHSALA MANICKAVASAGAM & ORS. v. N. GANESAN 339
  & ANR. [FAKKIR MOHAMED IBRAHIM KALIFULLA, J.]

Transfer of Property Act relating to gifts were not shown to have   A
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 B
written statement, vis-a-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 C
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 D
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 E
'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.
                                                                    F
     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.
                                                                    G
R.P.                                           Appeal allowed.