The main legal point established in the judgment is that the nomenclature of a document does not determine its real nature, and the essence and reality of the transaction should be identified.

1. In a suo motu ceiling case against the statutory family consisting of the first revision petitioner and his now deceased wife in which notice was also given to the son, the second revision petitioner who was a major on 1-1-1970, the Taluk Land Board determined excess land to be surrendered as 2.10 acres. This was done overruling the contention of the revision petitioners that the land taken into account was the joint family property of the parties which was divided under a partition deed of 1972 between them The Taluk Land Board treated the entire land as separate property of the father. Revision petitioners raised an alternative contention that in case the entire land is to be treated as separate property of the father, it must be deemed that by virtue of the partition deed the father gifted a portion of the land to the son and therefore they must be given the benefit of S.84 (1A) of Kerala Act 1 of 1964 (for short 'the Act') introduced by the amending Act 27 of 1979. The Taluk Land Board rejected this contention on the ground that the document in question is a partition deed and not a gift deed as contemplated under S.84(1A). Parties are Governed by Mitakshara Law.

2. The Authorised Officer reported that the entire land is separate property of the father and there is no material available to show that it is joint family property. During the enquiry before the Taluk Land Board also the parties did not adduce any evidence; they only relied on the bare recital in the partition deed which came into existence as late as 1972. The Taluk Land Board rightly declined to act on this uncorroborated recital. In the normal course a Hindu family must be presumed to remain joint; but there is no presumption that because a family is joint it possesses any property Merely because a family is joint and there is property in the name of one or other of the members of the family, law does not draw a presumption that the property is joint family property. The person asserting that any property is joint family property should prove that it is so. In the absence of such proof, the finding of the Taluk Land Board that the entire land is separate property of the father cannot be interfered with.

3. The more important contention is that since the land is to be treated as separate property of the father, the partition deed whereunder he allotted a portion of this land to his son, the second revision petitioner must be treated as a gift deed for the purpose of S.84(1A) of the Act.

4. S.122 of the Transfer of Property Act defines a gift as a transfer of property made voluntarily and without consideration by the donor to the donee and accepted by or on behalf of the donee. S.123 states that a gift of immovable property must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses. A gift is essentially a transfer. A transfer as defined under S.5 of the Transfer of Property Act is an act by which a living person conveys his property to another living person or persons; to transfer the property is to perform such act. It necessarily follows that a donee could not have any pre-existing right in the subject matter of the gift

5. Partition is a transaction by which an adjustment of mutual rights of joint owners or co-owners in common property is effected. Partition involves a conversion of joint ownership and joint enjoyment into one in severally. Parties to a partition have pre-existing title to the property dealt with therein. That being so, a partition does not involve conveyance of right or transfer of property. This is made clear by a Full Bench of this Court in the decision in Ramaswami Pattamali & others v. Lekshmi & others (AIR. 1962 Kerala 313) and by the Supreme Court in The Controller of Estate duty, Andhra Pradesh v. Kancharla Kesava Rao (AIR 1973 SC. 2484)

6. The partition deed in this case was not between joint owners or co-owners but between a person who owned the land exclusivel