The presumption of property purchased in the name of wife or unmarried daughter being for their benefit can be rebutted.

K. Sreedhar Rao, J.—The appeal filed against the order of the rejection of plaint on I.A. No. III in O.S. No. 1151 of 1999 on the file of the XXII Additional City Civil Judge, Bangalore. The appellant is the Plaintiff in the trial Court filed the suit for partition and possession. It is the contention in the plaint that the suit properties are the joint family property. One Subbaiah Shetty propositus, father of the Plaintiff and the Defendants No. 2 to 3 and husband of Defendant No. 4 left behind the suit properties and after his demise there were negotiations for settlement at panchayat. Eventually oral partition also took place later on memorandum of partition was prepared in accordance with the terms of the oral partition. The original of the deed of memorandum of partition is said to have been withheld by the 4th Defendant and she was not agreeable for effecting the terms of the oral partition. Under the circumstances, the Plaintiff filed the suit seeking partition of his share in the suit properties.

2. The Defendant No. 1 is the brother of the Plaintiff, Defendants No. 2 and 3 are the sisters of the Plaintiff and Defendant No. 4 is the Mother of the Plaintiff. Except the 'A' schedule properties, all the properties in 'B' to 'E' schedules stand in the name of the 4th Defendant. The claim for partition is stoutly resisted by the Defendant No. 4 contending that the properties are not available for partition except the 'A' schedule in respect of which there is already a suit filed in O.S. No. 7132 of 1996 pending on the file of the Additional City Civil Judge, Bangalore. Therefore, sought for dismissal of the suit.

3. The plea of application of provisions of Benami Transactions Prohibition Act, 1988 was also pressed into service by the Defendant. On the basis of the plaint averment, an application in I.A. No. III came to be made for rejection of the plaint for want of cause of action. The trial Court found that the provisions of Benami Transactions Prohibition Act, 1988 are not applicable and rejected the defence plea in that regard. However, found that there is an averment regarding the earlier oral partition. Therefore, the present suit for partition was held to be not maintainable. Accordingly, rejected the plaint under Rule VII, Rule XI.

4. In appeal, during the course of the arguments the Counsel for the appellant filed an application for amendment of the relief seeking specific performance of the enforcement of the terms of earlier oral partition. It was contended that necessary foundation facts have already been set out in the plaint in the first instance. Only by way of amendment of relief as an alternative relief, the Plaintiff is seeking to enforce the terms of the oral partition if it is found that on account of the earlier partition suit cannot be decreed and atleast on the basis of earlier oral partition to give effect to the terms thereof the relief of specific performance is sought for.

5. The Counsel for the Respondent stoutly opposed the application, contending that the claim is barred by limitation and the Plaintiff is not otherwise entitled to make such request. However, after going through the contentions, keeping open the question of limitation, it cannot be per se said that the amendment sought for would change the nature of the suit and cause of action. The foundation facts have already been set out in the plaint. As alternative relief of specific performance is sought by way of amendment, allowing the proposed amendment, would change the nature of the suit and would introduce a new cause of action.

6. According to the plaint averment, it is the husband of the 4th Defendant supplied the funds for purchase of the property in the name of the 4th Defendant. The Counsel for the Respondent contended that only the husband of the 4th Defendant is entitled to challenge the right of the exclusive title of the 4th Defendant and not the sons or daughters under the provisions of Benami Transactions Prohibition