Basant, J.

In a transfer for consideration in the name of 2 persons where such consideration is paid exclusively from the separate fund of one of them, is Section 45 or the salutary rule of equity underlying Section 45 of the Transfer of Property Act applicable? This is the short question that arises for consideration. To be more specific, the question is whether Section 45 or the principle therein can apply when the consideration is paid "out of exclusive funds of one of them" and not "out of separate funds belonging to them respectively"?

2. This Appeal is filed by the wife whose petition for declaration that she is the absolute owner of the property purchased under Ext.A3 and for consequential relief was dismissed by the Family Court. She was found to be having only half rights in the property.

3. On fundamental facts, there is no serious dispute. The property in question was acquired under Ext.A3 sale deed for consideration. The marriage between the spouses took place on 25.01.1986. The sale deed Ext.A3 in their favour was obtained on 26.10.1988. In the document, in page 3, there is an unambiguous recital about consideration which on translation reads roughly as follows:

"The consideration for this document has been obtained from Murukan, brother of Vasanthakumari (the appellant herein) and that represents the share which she is entitled in her family property."

4. The document of acquisition shows that the acquisition was in the name of both the husband and the wife. Though the document is taken in the name of both the husband and wife, there is no recital whatsoever that they are to enjoy the property equally or jointly. There is of course a statement that tax is to be paid hereafter in the name of both of them. Except this, the recitals in the document do not give any idea as to how the property is to be enjoyed.

5. The wife/petitioner/appellant claimed that she is entitled to a declaration that she is the absolute owner of Ext.A3 property. She prayed for an injunction restraining her husband from creating any document or encumbering the property in question. In the course of the proceedings, it was revealed that trees valued at Rs.10,000/-by the Advocate Commissioner had been cut and the logs removed by the husband. The wife had claimed the entire value thereof from the husband.

6. The matter was taken up by the Family Court along with other connected matters. All the 4 matters were disposed of by a common judgment. We are concerned only with the relief claimed in O.P.No.448 of 2003. It was found by the Court that both the husband and wife are entitled to half share each in the property. Consequently the wife was not granted declaration and injunction as prayed for. An amount of Rs.5,000/-, being half the value of the trees cut and removed, was directed to be paid by the husband to the wife.

7. Before the court below, the wife/appellant examined herself as PW1. A brother of hers was examined as PW2 and a neighbour was examined as PW3. Exts.A1 to A5 were marked. Ext.C1 report of the Commissioner was also marked. No oral evidence was adduced by the respondent/husband. He did not prove any document also.

8. We have heard the learned counsel for the appellant. There is no representation for the respondent though he has been served and has entered appearance through a counsel.

9. The learned counsel for the appellant assails the impugned order on the following grounds:

i) The court below erred grossly in not adverting to the relevant recitals in Ext.A3 at all.

ii) The court below ought to have held, following Section 45 of the Transfer of Property Act and the principle underlying the same that the respondent, who has not paid any amount towards the consideration for Ext.A3 sale deed is not entitled for any share in the property and that the appellant is exclusively entitled to rights over Ext.A3 property.

10. Ground No.1: We are perfectly satisfied that the court below has erred grossly in not even referring to