(1.) SRINIVASAN, J. The defendants are the appellants, the suit was filed by the respondent for partition and separate possession of her 1/2 share in the plaint schedule mentioned property and for injunction restraining the second defendant from interfering with the peaceful possession of the plaintiff. The case as set out in the plaint is as follows: The plaintiff is the daughter of the first defendant and the second defendant is the plaintiffs brother. The plaintiff was married to one Selvaraj Nadar on 29. 8. 1976. He was a partner in the family business run in the name and style of' 'Vairamani and Brothers' '. The said business was closed in the year 1978and in a family arrangement the business was allotted to the plaintiffs husband. Thereafter the plaintiffs husband changed the name of the business as' 'S. Kaladevi Dhall mills' 'and it was being run by him as a sole proprietor. That was carried on till 31. 3. 1983. The plaintiffs father died on 17. 10. 1981. When the plaintiffs husband wanted to purchase lands with the money in his possession in 1980 the father of the plaintiff also wanted to contribute one-half and agreed to purchase the property in the joint names. Accordingly, the properties were purchased in 1980 in the names of the plaintiff and the first defendant, her mother. Thus, the plaintiff is entitled to 1/2 share in the properties, the second defendant has no interest in the properties. But he is trying to interfere with the possession of the plaintiff. The title of the plaintiff to the half share is being denied and the plaintiff is obliged to file the suit praying for the reliefs set out already.
(2.) THE second defendant filed a written statement. It is stated in the written statement that the plaintiffs husband had no funds either to run the business or to purchase the property. On the other hand, the second defendant had accumulated about Rs. 3 lakhs by doing business from 1970 to 1978 and the properties were purchased only with those funds, the properties were purchased in the joint names of the plaintiff and the 1st defendant. THE plaintiff cannot claim any right in the suit property and the suit is liable to be dismissed.
(3.) EVEN with regard to the consideration for the purchase of the property, the trial court has failed to advert to the evidence on record while deciding the question. The trial court has wrongly thrown the burden on the plaintiff to prove that she advanced a part of the consideration. The recitals in the documents Exs. B-1, B-2, B-3 and B-5 which are the documents under which the suit properties were purchased clearly show that the consideration was paid by both the purchasers. In fact, the recital in Ex. B-1 in Tamil is very significant It reads as follows: Similar recitals are found in the other documents. When there is a specific recital to this effect it is for the defendants to prove that the same is erroneous. It is highly doubtful whether the defendants are entitled to adduce evidence contrary to the express recital in the documents. EVEN assuming such evidence could have been let in by the defendants, it should be said that defendants have miserably failed to adduce such evidence. Apart from the recitals in the documents, the plaintiff has also examined her husband as P. W. 2. He has spoken to the funds available with him and the payment of part of the consideration for the purchase. He has also produced Exs. A-10 and A-11 which are the statements issued by the Bank in which the plaintiff had accounts in the name of Kaladevi Dhall Mills. The statements of accounts show that during the relevant period there were funds to the extent of more than a lakh of rupees and periodical withdrawals had been made. The trial court has taken the view that there is no evidence to show that the funds were withdrawn from the Bank nor paid to the vendor under the documents. The reasoning is clearly erroneous. The evidence adduced by the plaintiff as to the availability of funds, taken along with the specific recitals in the documents would prove the case of the plaintiff and there is no evidence to the contrary on the side of the defendants. There was no cross-examination of P. W. 2 by the defendants as regards Exs. A-10 and A-11.