BUDDHESWAR GHOSH Vs. EKKARI GHOSH

JUDGEMENT

(1.) The first appeal is against a decree for declaration and partition. The defendants are appellants. The plaintiffs belonged to the same branch of the family and the predecessor in interest of the plaintiffs and defendants were brothers.

(2.) The dispute involve in the appeal appears to be confined to the properties mentioned in the schedule attached to written statement. The other properties included in the plaint schedule, apart from those properties in the schedule of the written statement, appear to be not seriously claimed by the defendants/appellants. The Genaeological Table at page 34 of the paperback indicates the relationship between the parties.

(3.) The basis of plaintiff's claim with regard to the properties scheduled in the written statement is that though the properties stand in the name of the mother of the defendants they are really properties acquired out of joint family properties and as such he claims to have equal share with the defendants. The defence on the other hand is that the properties belonged absolutely to their mother in her own right and were acquired out of her stridhan money. The alternative defence is that even assuming the allegation of Benami to be true the suit must be dismissed because of contravention of the provisions of the Benami Transactions Prohibition Act. In this connection the defendants have also taken the defence that, in the absence of appropriate pleading, it is no longer open to the plaintiff' to allege and prove that the exceptions, as mentioned in the Benami Transaction Prohibition Act apply. Thirdly, even if pleadings are amended, the benamdar not being the member of the joint family, the presumption of joint ness of the properties cannot hold good. The learned trial Judge, in the impugned judgment has recorded the following findings:--