JUDGMENT :

1. A suit for partition ended in a preliminary decree both in the Trial Court and in the First Appellate Court. The 5th defendant came up with this appeal against the said decree and judgment of both the courts below.

2. Admittedly, the property in issue originally belonged to the father of plaintiff and the defendants. According to the plaintiff, it was devolved upon them equally after the demise of father. Per contra the 5th defendant contended that, no such property was left out by the father, as it was given to him on an earlier occasion by executing Ext.B1 settlement deed. Both the courts below found that Ext.B1 document was not accepted by the 5th defendant and a preliminary decree for partition was granted with respect to the plaint schedule property as the one left out by the deceased father, against which the 5th defendant came up with this appeal.

3. The following questions came up for consideration :

(1) What actually amounts to a settlement deed and whether it would constitute a gift as defined under Section 122 of the Transfer of Property Act?

(2) Whether it is necessary to call for and examine one of the attesting witnesses to prove the due execution of a gift/a