IMPORTANT POINT
The burden of proof in establishing a benami transaction lies with the claimant, and the existence of a joint family nucleus and joint family properties must be proven with cogent evidence.

JUDGMENT :

Sugato Majumdar, J.:

1. The instant suit is a suit for declaration, permanent injunction and partition.

2. Plaint case may be summarized at first. The original Plaintiff no. 1 & 2 and the original Defendant no. 1 are brothers of the same blood. The original Defendant no. 1 was the eldest brother. The original Defendant no. 2 & 3 are the sons of the original Defendant no. 1. The original Defendant no. 4 is the wife of the original Defendant no. 2. The original Defendant no. 5 & 6 are the sister’s sons of the original Plaintiffs and the original Defendant no. 1. The original Plaintiffs and the original Defendant no. 1 were the sons of late Bhushan Chandra Mondal and they had their ancestral home in the district of Burdwan. All the sons of late Bhushan Chandra Mondal formed a joint Hindu family. These three brothers, namely, the original Plaintiffs and the Defendant no. 1, in their prime came to Calcutta to make fortunes. After coming to Calcutta, they started their first joint business under the name and style of M/S. Arnapurna Vegetable Stores in a shop-room at 50, Kali Krishna Tagore Street, Calcutta – 700007 out of the joint assets but in the name of the Plaintiff no. 1 as proprietor of the business. Out of the income of the business of the name and style of M/S. Arnapurna Vegetable Stores, a business of hardware was started of the name and style of M/S. Mondal & Co. in a rented shop-room at 46, Nalini Sett Road, Calcutta – 700007. This business was at all material time, another joint business, of the original Plaintiffs and the original Defendant no. 1. Telephone connection in this business was taken in the name of Asimananda Mondal, son of the original Plaintiff no. 2.

3. It is averred in the plaint that the Defendant no. 1 being the eldest brother, was the eldest member of the joint family and was treated with respect. All the family members submitted to the will, dictates and advice of the original Defendant no. 1 who remained in over all charges of the business as aforesaid and in control of income accrued therefrom. On advice and policy of the original Defendant no. 1, a go-down and store of hardware goods was hired at premises no. 3, Ratan Sarkar Garden Street, Calcutta – 700007. The premises was taken on rent in the name of the original Defendant no. 5 who was a member of the joint family at that time.

4. Another shop-room-cum-go-down to store hardware goods was taken on rent in the name of the original Defendant no. 6 at premises no. 50, Kali Krishna Tagore Street Calcutta – 700007. The said original Defendant no. 6 was living in the joint family and the said business at 50, Kali Krishna Tagore Street, Calcutta – 700007, under the name and style of M/S. Joylakshmi Bhandar was started out of joint family fund, and the original Plaintiffs and the original Defendant no. 1 became jointly the owners of the business.

5. Joint family residential house along with another house property were purchased in the name of the original Defendant no. 1, as the head of the joint family out of joint family fund and joint family income. One of those properties was at premises no. 33, Mondal Street, Calcutta – 700006 being a structure erected on a land measuring about 3 cottah 2 chittacks 5 sq. ft. This house property was meant for joint family residence. The other property purchased out of joint family fund, in the name of the original Defendant no. 1 was at 34, Mondal Street, Calcutta – 700006 was meant for letting out to various tenants. According to the averments made in the plaint all the three brothers were joint landlords though rents were collected in the name of the original Defendant no. 1. Another house-property was also purchased in the name of the original Defendant no. 4 at the desire of the original Defendant no. 1 being the premises no. 17/2, Shib Talla Street, Calcutta – 700007. This property was also purchased out of joint family fund. It is averred that the original Defendant no. 4 had no right, title and interest