PARVATHI AMMAL Vs. SOLAI AMMAL

JUDGEMENT

(1.) THE above appeal has been filed under Clause 15 of the letters Patent against the judgment of the learned Single Judge of this Court dated 25. 3. 1994 in ,a. S. No. 454 of 1982 whereunder the learned Judge has chosen to allow the appeal, in part which has been filed by the defendants in O. S. N0. 138 of l980 on me file of Sub Courts, Cuddalore, confirming the judgment of the trial Court in respect of other portion.

(2.) THE appellant in the appeal, who is the daughter of one Kesava, Padayachi and, Solaianimal, the 1st defendant herein, is also the sister of the 2nd defendant. She filed a suit for partition and separate pos-session of her l/3rd share in suit schedule properties. Tthe suit A schedule property comprised four parts consisting of various items of immovable properties and suit B schedule consisting of movables as described therein.

(3.) MR. M. N. Muthukumaran, learned counsel appearing for the appellant/plaintiff, contended that the learned single Judge was in error in reversing the judgment of the trial Court in respect of items standing in the name of the 1st defendant and that the learned single Judge has overlooked the relevant provisions in which certain exceptions were recognised in the very Act and the case on hand come within the excepted categories and at any rate, the decision of the Apex Court relied upon by the learned single Judge will not apply to the case on hand. It was also contended that the 1st defendant was only holding the property as a trustee for the other heirs and the very admission made by the 1 st defendant as to the manner in which those properties were acquired and subsequently, enjoyed have been over-looked and a careful analysis of those materials would go to show that the learned trial Judge was right in decreeing the suit as claimed by the plaintiff for her l/3rd share in respect of all the items mentioned by her and countenanced by the trial Court. The learned counsel also emphasised the fact that the 1st defendant herself has not projected any claim as if, she had purchased the property or that the same was purchased for her own benefit with her own funds and the mere fact that she has admitted in the written statement of the 2nd defendant, she herself, not being personally aware of the events of those days would not be sufficient factor for proving the claim made by the 1st defendant in herself. Per contra, mr. K. Raghunathan, learned counsel appearing for the respondents/defendants, while relying upon and drawing inspiration from the reasons assigned by the learned single Judge, also contended drat even on the evidence on record, the plaintiff has not succeeded in properly projecting or proving the plea of benami by adducing any acceptable evidence to substantiate such a claim and that, therefore, the learned single Judge was right in coming to the conclusion that the plea of benami has to be rejected.