The burden of proof to establish the intention to benefit the transferee in a gift transaction lies with the transferee. There is no presumption of advancement in Indian laws, and clear evidence is required to prove a gift.

VARGHESE KALLIATH, J.:- Plaintiff in O. S. 30 of 1977 on the file of the Subordinate Judge's Court, Manjeri is the appellant. Respondent is his wife. The suit is for partition.

2. The masthead of the case is the question is C schedule property a gift by the plaintiff to the defendant.

3. The trial court found that C schedule property is a gift to the defendant by the plaintiff and not liable to be partitioned in this suit. Hence it dismissed the suit in respect of plaint C schedule.

4. There is no dispute between the parties as regards their respective shares. The plaintiff admits that in any case the defendant is entitled to 1/11th share in plaint C schedule property. C schedule property is two deposits of Rs. 20,000/- each in State Bank of Travancore in its Manjeri Branch. The defendant claims that it belongs to her exclusively and so not liable to be shared. She admits that out of this Rs. 40,000/- a sum of Rs. 34,650/-constituted the sale consideration received by the plaintiff and defendant together when they sold an item of property which belonged to them jointly and the overplus of Rs. 5350/- was her own private savings. She further alleges that the amount of Rs. 34,650/- was given to her by way of gift by the plaintiff and so the whole of C schedule property belongs to her and is not partible.

5. The property belonging to the husband and wife was sold for Rs. 34,650/- on 13-3-1976. This is an admitted case. The defendant states that she was given the entire sale consideration as a gift on the date of sale itself. It is said that she, through her son-in-law deposited the amount in Savings Bank Account in State Bank's Branch at Manjeri on 13-3-1976. Ext. B1 pass book produced in the case shows that the deposit was on 20-3-1976. It is seen that the amount deposited is Rs. 40,500/- Subsequently out of this Rs. 40,500/- an amount of Rs. 40,000/-was deposited in her name in the same Bank as fixed Deposit for 60 months under two Fixed Deposits evidenced by Exts. B2 and B3 receipts. Ext. B2 is dated 26-4-1976 and Ext. B3 is dated 4-5-1976.

6. Defendant says that of late, her husband was cruel to her. He was not bestowing that love and affection expected of a husband. She was thrown to the 'valley of weeping' the valley of sorrow and pain. They became increasingly unhappy and reached a stage that the defendant was not able to continue her residence in their matrimonial home. The plaintiff insisted that the defendant should live separately. The defendant asked the plaintiff where she should live, obviously indicating that she has no other place of residence. Plaintiff in that entourage agreed to give her the necessary funds for purchasing a house. On this understanding part of the residential compound was sold and the amount obtained by the sale was given to her as a gift. So the amount representing the sale consideration exclusively belongs to her. Plaintiff refuted all these-allegations.

7. Plaintiff contends that though the amount in deposit stands in the name of his wife, 10/11 share of the beneficial ownership of the amount continues with him. He has not parted with his share of the amount to his wife and he had not intended to give a gift in favour of his wife when the amount was deposited in the Bank.

8. The issue to be decided is, whether the plaintiff intended to give as a gift to his wife the amount, under the deposit receipts exts. B2 and B3. Admittedly the amount represents the sale consideration of a property belonging to the husband and wife, the wife having only 1/11 share. Counsel for the plaintiff argued that there is a resulting trust in favour of the plaintiff in regard to the amount in deposit insofar as he had no intention to benefit the wife when the deposit was made.

9. The defendant has set up the case of gift. She has to prove the fact of gift. The query is whether the defendant has discharged this burden satisfactorily. The defendant relies on certain circumstances and probabilities and also the evide