Presumption of advancement is a legal presumption which arises in various forms. It simply means a transfer of property or money from husband and child and also from husband and wife.
The issue whether transfer of the property was to be construed as a gift or as a resulting trust is a rebuttable presumption by leading evidence to that effect. It can only be rebutted by the donor of property exhibiting evidence of overt acts which will contradict that the gift was not intended to be a gift but it was a resulting trust.
The presumption states that where a husband transfers property to wife, or a father to his child or someone to whom he has assumed parental responsibility, then in the absence of any evidence the court will presume that the transfer was by way of gift.
On the other hand, the law as to presumption of advancement and resulting trust is well settled. It is settled principle of law that where one purchases property and causes the legal estate in the property to be conveyed in the name of another who provided none of the purchase price, there is rebuttable presumption that the purchaser of the property intended that other person should not enjoy the beneficial interest but should hold the legal estate as a trustee for the purchaser.
In the absence of evidence indicating an intention on the purchaser’s part of not appropriating to himself the beneficial interest the law will presume that purchaser intended to keep the beneficial interest for himself and a resulting trust will be declared in his favour.
According to the learned authors of Halsbury’s Laws of England at page 21 Section 1 item 447 on the subject of Presumption of Advancement, the authors said as follows:
“Where a father, or a person who has put himself in loco parentis, purchases either real or personal estate in the name of a child alone or in the joint names of the child and himself or a stranger, the father or other person is presumed to have intended to make a gift to the child.
The presumption does not exist where the purchase is made by mother, but slighter evidence is sufficient to prove an intention on her part to advance the child than would be required in case of a purchase by a stranger. The presumption of advancement may be rebutted by evidence of a contrary intention collected from the acts or declarations of the parties before or at time of the transaction, subsequent acts and events being only admissible as evidence against the party who did or made them and not in his favour.
The presumption may exist even though the parent has actually received the income during his lifetime and made leases of the property.”
In the English case of Shephard and Anor. v Cartwright, the H.L held that:
“The act and declarations of the parties before or at or immediately after the purchase, constituting part of the same transaction, were admissible in evidence for or against the party who did the act or made the declaration.”
The presumption is in line with section 25 of the Evidence Act, (NRCD 323) 1975.
Section 25 of the Evidence, (NRCD 323) 1975 states that:
“Except as otherwise provided by law, including a rule of equity, the fact recited in a written document are conclusively presumed to be true as between the parties to the instruments, or their successors in interest.”
Gone were the days when most women were confined to the kitchen without any formal education. Most women at the time depended on their husbands for survival. But with the advent of civilization and urbanisation, things have changed.
Women now occupy positions of influence. This is so because most women are educated and even the non-educated ones are involved in lucrative businesses. Some of the educated and uneducated women are into importing goods from China, Dubai etc, for a better living and supporting the family. Some of the educated women are judges, lawyers, doctors, managing directors, company secretaries, lectures, teachers etc. Women are no more relegated to the background as it used to be.
These qualities of modern day women makes them earn high incomes from their various fields of discipline even more than some of their male partners.
Presumption of advancement is in two forms. From father and child, husband and lawful wife.
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