Judgment :- 1. This litigation is between a husband and a wife. The husband filed a suit for partition of the property. The property stood in the joint names of husband and wife. They put forward claims, taller than what could be made good by the evidence. The wife thought, and rashly, as it ultimately turned out, that her mere ipse dixit was sufficient to substantiate her contention about her exclusive ownership of the funds utilised for the purchase of the property. The trial court, rightly, did not think that such uncorroborated evidence was acceptable to dislodge the statutory presumption under the second part of S.45 of the Transfer of Property Act. That finding has been concurred in by the Appellate Court. 2. I am in agreement with the finding of fact. Evidence was available; but no attempt was made to adduce it before the Court. She had pleaded about the gifts made to her by her mother and brother. It was claimed that the brother had sold some of his gold ornaments and had ready funds with him to be made over as gifts to his sister. The brother was not examined to prove those facts. 3. There was not even an attempt to examine, nor was any attempt made to adduce other independent evidence strong enough to jettison the statutory provision. 4. Counsel for the appellant submitted that the second part of S.45 is attracted only in a case where there is total lack of evidence on one side or the other. Here the parties attempted some evidence. Even if the evidence is unsatisfactory, the opening words of the section, 'in the absence of evidence' will not be applicable, in the circumstances. A novel contention. 5. S.45 is based on the English law. Analogous provisions were incorporated in a contemporaneous statute while dealing with the determination of partner's mutual relations, S.253 of the Indian Contract Act, 1872. 6. The first portion of the section posits the case of a transfer of immovable property for consideration to two or more persons, and the payment of consideration out of a fund belonging to them in common. A contract between the transferees could certainly delineate the share of each one of them. There can be situations where there is no such contract. The statute fills in the void in such a situation. A contract between the transferees could certainly delineate the share of each one of them. There can be situations where there is no such contract. The statute fills in the void in such a situation. The share of each one of the transferee is linked with the interest they were entitled to in the fund. There can be other cases where the consideration is met out of separate funds belonging to each of them. Here again a specific contract between them can define their respective shares in the property. In its absence, the share in the property is proportionate to the consideration advanced by each of them. 7. The second part of the section deals with a situation where there is an absence of evidence as to the interest in the fund or to the shares as advanced. A principle of equity -equality is equity - is injected into the situation. Such situations may arise when specific recitals are missing in relation to the shares which the transferees are entitled to, or about the shares in a fund or about the separate funds advanced by each of them. Even if the document be silent, there could be other evidence on any one of those aspects. When other adventitious aids are unavailable, and when the situation is otherwise hazy or fluid, the statute brings about a certainty and furnishes a process of crystalisation as regards the rights of parties. 8. The second part of S.45 visualises a displacement of the statutory provision by evidence. Is ft only some evidence, nominal, and answering only a general definition of that term? That view would be jarring to reason. Valuable rights would not depend upon such unreal or unsubstantial factors. Weighty and positive should be the considerations which qualify for a serious reckoning by a court of law. 9. No direct judicial pronouncement touching the interpretation of the section was placed before the court. By force of habit, as it were, a court dealing with a novel situation may gaze at various horizons to see some light. Some indirect beams were visible in the decisions of the Madras, Orissa and Oudh High Courts. (Vide T. D. Tehran v. Official Assignee, AIR 1976 Madras 222, Debaraj v. Ghanshyam, AIR 1979 Orissa 162 and Ram Pher v. Ajudhia Singh AIR 1925 Oudh 369). Some indirect beams were visible in the decisions of the Madras, Orissa and Oudh High Courts. (Vide T. D. Tehran v. Official Assignee, AIR 1976 Madras 222, Debaraj v. Ghanshyam, AIR 1979 Orissa 162 and Ram Pher v. Ajudhia Singh AIR 1925 Oudh 369). The first two clearly supports the conclusion reached above on the interpretation of the section. In both cases, there was evidence about the funds utilised for the acquisition of the property. In addition to documentary evidence, six witnesses had been examined on either side in the first case. The Court observed: "if the plaintiff could not establish as to what was the fund out of which the consideration money had been paid, and what share in that fund each of the parties had, the legal presumption has to work." In the Madras case, a property had been purchased in the names of a husband and wife. The evidence in the case did not pin-point the source of purchase money. At the time of purchase, the husband was affluent and was earning. The evidence disclosed that the wife was not impecunious. She used to issue cheques and purchase property. The important point to be emphasised in the context is about the evidence available in the case about the husband's affluence and the wife's financial activities. The Court observed: "In such an event, as there is no evidence of a common fund out of which the site could have been purchased and in the absence of evidence also that one or the other exclusively contributed any part of the purchase money, the second paragraph of S.45 of the Transfer of Property Act will be applicable. More so, when the purchase was expressly stated to be in the joint names" 10. The question did not arise directly in the Oudh decision. The decision proceeds on the assumption that when a plaintiff did not attempt adducing of evidence as regards matters contained in the first part of S.45, the absence of evidence arose as a result of the plaintiffs default and in those circumstances the second part of the section could not be pressed into service. Neither on principle nor on precedents the approach of the Oudh Court appears to be sound. 11. Neither on principle nor on precedents the approach of the Oudh Court appears to be sound. 11. I hold that the expression'in the absence of evidence' occurring in the second part of S.45 does not take in a situation where there is only some formal evidence which cannot be accepted or acted upon by a court of law. Unreliable or unsubstantial evidence or record would also result in a situation where there is an 'absence of evidence' as regards the interest in the fund to which the parties are respectively entitled, or the shares they respectively advanced. What matters is the substance, not the shadow. 12. The Second Appeal is dismissed. 13. What should the order as to costs? 14. The plaintiff was not an impulsive girl but a mature woman when she brought the suit. (She was 33 then; and the husband 43; reminding one about that caustic Comment of Shaw : He once declared that all men over forty were scoundrels; asked by a lady whether the remark applied to her sex too, he replied that in the case of women, the age was thirty). It was the husband who had been dragged into the litigation, and dragged all through three Courts. Yet their close relationship is such that Court would leave them without another bit of bitterness, the liability for costs. Dismissed.