KAKKACHERRA Vs. CHIYYAYI

JUDGEMENT

(1.) THIS is an appeal by the plaintiffs. Plaintiffs are the brothers of defendants 1 and 2. They executed a gift deed along with another deceased Kannan in favour of defendants 1 and 2. Alleging that the gift deed has been executed under fraud and coercion, the plaintiffs approached the court for a declaration that the gift deed is invalid. The trial court found that there was no fraud and coercion, but held that the gift was not accepted by the donees and so, dismissed the suit. The defendants filed an appeal. The appellate court did not agree with the trial court. The appellate court found that the gift has been accepted and it was executed validly and the rights of the donees are secured by the gift deed. The suit was dismissed. Now the plaintiffs appeal.

(2.) AT the time of admission of this second appeal, this court formulated the following question of law: "whether there is a presumption in law of acceptance of gift is the question of law arising in this second appeal. " Though the question is formulated as a question based on presumption, in fact that is not very material on the facts proved in the case. It is a gift which is not onerous. Moreover, there is a finding by the appellate court that the gift has been accepted by the donees. This is what the appellate court has said: "there is nothing to suggest that the gift was onerous. Not being an onerous gift there was no chance of the donees not accepting the gift. The presumption is that they had accepted it. That apart, it is seen that they had even applied and obtained purchase certificate in respect of the property as per Ext. B1. Ext. B1 is of the year 1977 that too in january. "

(3.) IN this context, presumptive proof is important. Presumptive proof, as opposed to conclusive proof, is basically different. Conclusive proof raises a conclusive presumption. Presumptive proof raises a conditional or rebuttable presumption. It cannot be said that there is a conclusive presumption of acceptance in the case of gift which is not onerous because conclusive proof has to be understood as a fact possessing probative force of strength as not to admit of effective contradiction. IN other words, that fact which amounts to proof irrespective of the existence or non-existence of any other facts whatsoever which may possess probative force in the contrary direction is conclusive presumption. By a conclusive presumption, the law accepts a fact as conclusive proof.