Case: Kali Prasad Singh Vs. Ram Prasad Singh &amp; Others

2. One Beni Singh had three sons and many properties. On a division among them, the properties set out in the B Schedule to the plaint fell to the share of two of his sons, Sheo Dihal Singh and Nepal Singh Subsequently, a partition inter se of these properties came to be made by decree of court on June 14, 1945 whereby properties in the C schedule to the plaint were allotted to Debi Prasad and Lal Bahadur (second defendant), children of Nepal Singh. D Schedule properties with which we are not concerned in this suit were allotted to Kali Prasad (first defendant, also appellant, before us). E schedule items were set apart for the sons of Sheo Dihal.

Court's reasoning:
sets out all the items of property in the B schedule and gives its extent as9 acres. The donor proceeds to state that this is the total extent of the properties continues by mentioning that he has a 1/6th share (ak chattai hissa).To put matters beyond doubt, he added that this 1/6th share is his and is given in gift (Yani 1/6 hissa ham musir ka hai voh hiba kiya). The meaning is unmistakable that the donor states that he has 1/6th share in all the properties set out at the foot of the gift deed (which are items of the B schedule to the plaint) and proceeds to convey this 1/6th share of his by way of hiba to the donee, his brother. It is conceivable, in the face of this language to hold that what was conveyed by Ex.7 was 1/6th of 1/6th of the items set out in the gift deed6. The only point of obscurity is as to why when there had already been a partition of the B schedule properties and the donor and Lal Bahadur, the second defendant, had been allotted the C schedule properties out of the B schedule properties there should have been no reference to the latter C schedule properties in the gift deed.The explanation apparently is that since in the revenue records the mutation of names indicating the partition and allotment of C schedule properties had not been carried out, the gift deed was drafted on the footing that Debi Prasad was owner of 1/6th of the B schedule properties and that entire share was being gifted away to the first defendant. There is no dispute between the parties that the 1/6th share of the donor in the B schedule properties was converted into half share in the C schedule properties and full ownership of the F schedule properties. It thus follows that Ex.7 is a gift in favour of the first defendant of the entire F schedule properties.