The importance of substantial and reliable evidence to dislodge statutory presumptions under the Transfer of Property Act, particularly S.45.

1. This litigation is between a husband and a wife. The husband filed a suit for partition of the property. The property stood in the joint names of husband and wife. They put forward claims, taller than what could be made good by the evidence. The wife thought, and rashly, as it ultimately turned out, that her mere ipse dixit was sufficient to substantiate her contention about her exclusive ownership of the funds utilised for the purchase of the property. The trial court, rightly, did not think that such uncorroborated evidence was acceptable to dislodge the statutory presumption under the second part of S.45 of the Transfer of Property Act. That finding has been concurred in by the Appellate Court.

2. I am in agreement with the finding of fact. Evidence was available; but no attempt was made to adduce it before the Court. She had pleaded about the gifts made to her by her mother and brother. It was claimed that the brother had sold some of his gold ornaments and had ready funds with him to be made over as gifts to his sister. The brother was not examined to prove those facts.

3. There was not even an attempt to examine, nor was any attempt made to adduce other independent evidence strong enough to jettison the statutory provision.

4. Counsel for the appellant submitted that the second part of S.45 is attracted only in a case where there is total lack of evidence on one side or the other. Here the parties attempted some evidence. Even if the evidence is unsatisfactory, the opening words of the section, 'in the absence of evidence' will not be applicable, in the circumstances. A novel contention.

5. S.45 is based on the English law. Analogous provisions were incorporated in a contemporaneous statute while dealing with the determination of partner's mutual relations, S.253 of the Indian Contract Act, 1872.

6. The first portion of the section posits the case of a transfer of immovable property for consideration to two or more persons, and the payment of consideration out of a fund belonging to them in common. A contract between the transferees could certainly delineate the share of each one of them. There can be situations where there is no such contract. The statute fills in the void in such a situation. The share of each one of the transferee is linked with the interest they were entitled to in the fund. There can be other cases where the consideration is met out of separate funds belonging to each of them. Here again a specific contract between them can define their respective shares in the property. In its absence, the share in the property is proportionate to the consideration advanced by each of them.

7. The second part of the section deals with a situation where there is an absence of evidence as to the interest in the fund or to the shares as advanced. A principle of equity -equality is equity - is injected into the situation. Such situations may arise when specific recitals are missing in relation to the shares which the transferees are entitled to, or about the shares in a fund or about the separate funds advanced by each of them. Even if the document be silent, there could be other evidence on any one of those aspects. When other adventitious aids are unavailable, and when the situation is otherwise hazy or fluid, the statute brings about a certainty and furnishes a process of crystalisation as regards the rights of parties.

8. The second part of S.45 visualises a displacement of the statutory provision by evidence. Is ft only some evidence, nominal, and answering only a general definition of that term? That view would be jarring to reason. Valuable rights would not depend upon such unreal or unsubstantial factors. Weighty and positive should be the considerations which qualify for a serious reckoning by a court of law.

9. No direct judicial pronouncement touching the interpretation of the section was placed before the court. By force of habit, as it were, a court dealing with a novel situation may gaze at various