Benami transaction not proved by plaintiff.

The appellants/defendants 1 & 2 who failed before both the courts below have preferred this appeal.

2. The 1st respondent/plaintiff filed the suit for partition and separate possession of 1/5th share in the 'A' schedule and 'B' schedule properties. The appellants have resisted the suit on the basis that there had been an oral partition in the family and separate items had been allotted to the parties except in respect of items 2, 8 and 9 in the 'A' schedule property.

3. In the above circumstances, the learned District Munsif, who tried the suit on the basis of the recorded evidence both oral and documentary and upon hearing the arguments advanced on either side, granted a preliminary decree for partition of 1/5th share in the suit properties as prayed for.

4. Aggrieved by the judgment and decree of the trial court, the appellants herein preferred an appeal before the Subordinate Judge, Arani. The learned Subordinate Judge, having analysed the evidence on record, in the light of the judgment and decree passed by the trial court, dismissed the appeal. Hence, this Second Appeal.

5. The parties to the appeal are hereinafter referred to as they were arrayed before the trial court for the sake of convenience.

6. The contentions of the 1st respondent/plaintiff in the plaint are briefly as follows:-

(a) The plaintiff submits that the 1st defendant is the eldest brother and defendants 4 and 5 are the other brothers. The 2nd defendant is the wife of the 1st defendant. The 3rd defendant is the mother of plaintiff and defendants 1, 4 and 5. The plaintiff's father died about 25 years back leaving the plaintiff, defendants 1, 3 to 5 along with two daughters as his legal heirs.

(b) The 1st defendant is having control over the income from the lands. The plaintiff is now employed at Vandavasi. The 1st defendant had purchased 'B' schedule properties from out of the funds of the joint family benami in the name of his wife, the 2nd defendant. The 2nd defendant had no independent source of income to acquire the properties under the registered sale deed dated 24.11.1965. The plaintiff and defendants 1, and 3 to 5 each are entitled to 1/5th share in the suit properties. The joint family is having two electric pump sets. The 1st defendant has removed an electric pump set from the S.C.No.36 belonging to the joint family.

(c) The 1st defendant is now attempting to segregate the joint family funds and he is not attending to the needs of the joint family members. As the other brothers of the plaintiff could not join this plaintiff, he filed the suit for partition and and separate possession of 1/5th share and for mesne profits from the 1st defendant. No reliefs are prayed for against the defendants 3 to 5.

(d) On 24.11.1966 the 1st defendant purchased 'B' schedule properties benami in the name of 2nd defendant for the benefit of the joint family and about one year back, the 1st defendant had illegally removed the electric pump set from 'A' schedule properties.

7. The averments in the written statement filed by the 2nd appellant/2nd defendant are briefly as follows:-

(a) The 2nd defendant denied that 'B' schedule properties were purchased from out of the proceeds from the family properties, that this defendant has no means to purchase 'B' schedule properties and that the said properties were purchased for the benefit of the joint family.

(b) The first item of 'B' schedule was purchased from out of her own money by a sale deed dated 24.11.1965 and this defendant dug the well in the third item of 'B' schedule by borrowing loans from others. This defendant purchased the motor shown as item No.2 of the schedule for a sum of Rs.1,875/- on 21.12.1977 from Kancheepuram Shanthi Electricals for which she has filed the bills and receipts for payment of advance amount.

(c) She had obtained service connection No.152 in her name and paid electric consumption charges in her own name every month. She has been in possession and enjoyment of the first item of 'B' sched