IMPORTANT PIOINT
Ingredients of ’admission’ u/s 17, Evidence Act and ’gift’ u/s 122, T.P. Act discussed.

JUDGMENT

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 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 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 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