Property purchased either in the name of wife or unmarried daughter to be presumed for their benefits.

The unsuccessful plaintiffs, who lost in both the courts below, are the appellants.

2. The case in brief is as follows:- The plaintiffs filed a suit for recovery of possession as well as Rs.1740/= towards damages for use and occupation from 01.02.1987 and directing the defendant to pay Rs.200/= per month from the date of suit till delivery of possession as future damages. The house and the premises bearing door No.10 (old No.35), Veeraswami Pillai street, Madras-1 belonged to P.V.Ramasamy Naidu, father of the 1st plaintiff, who had purchased the same out of his self acquisition and enjoyed it solely and absolutely. He had bequeathed the property in favour of the 1st plaintiff as well as the 2nd plaintiffs, his daughter-in-law under a Will dated 08.12.1957. The plaintiffs also obtained probate in O.P.No.162 of 1964 and later converted into T.O.S.No.3 of 1965 and got a probate on 09.03.1967. The defendant sought permission of the plaintiffs in 1970 to occupy a portion of the premises, who is the brother of the 1st plaintiff. The defendant was allowed to occupy a portion of the premises more fully described in the schedule. The possession is only with the leave and licence of the plaintiffs. The defendant is in occupation of three rooms measuring 229 sq.ft. The leave granted to the defendant was revoked by means of notice and he was called upon to surrender possession of the property. The defendant failed and neglected to surrender possession and, as such, he is liable to be evicted. He is also liable to pay damages for use and occupation. Hence, the suit.

3. The defendant admitted the relationship of the parties. The defendant and the 1st defendant are brothers and sons of late Ramasamy Naidu and Smt.Perundevi Thalliammal. The suit schedule properties are the absolute properties of the mother, who was in absolute possession and ownership till her demise in 1968. In fact, the father predeceased her in 1960. After the demise of the mother, the schedule property devolved on the children equally and absolutely. The 1st plaintiff had 1/7th share and the defendant also had 1/7th share in the property and both of them are in joint possession of the property and therefore, the suit filed for possession and damages is not maintainable under law. Late Ramasamy Naidu was not the owner of the property and there was no declaration or otherwise by any Court. No right or title or otherwise has been made or created or passed in favour of the plaintiffs by virtue of the Will or probate. The plaintiffs are not the sole and absolute owners of these properties. The defendant had already filed a suit for partition on the file of this Court in C.S.No.1101 of 1998. This Court also passed an order of injunction restraining the plaintiffs and their men from in any manner interfering with the possession and enjoyment of the defendant and it is still in force. The defendant has been paying all his contribution for payment of house tax as well as electricity charges. The plaintiffs are not entitled to any relief and the suit is liable to be dismissed.

4. The trial court framed 3 issues and one additional issue and on behalf of the plaintiffs, P.Ws.1 and 2 were examined and Exs.A-1 to A-40 were marked and on the side of the defendant, he was examined as D.W.1 and Exs.B-1 to B-22 were marked. The trial court dismissed the suit and aggrieved against this, the plaintiffs preferred A.S.No.307 of 1990 on the file of VIII Additional Judge, City Civil Court, Chennai and the learned Judge after hearing the parties, dismissed the appeal. Aggrieved against this, the plaintiffs have come forward with the present second appeal.

5. At the time of admission of the second appeal, the following substantial questions of law were framed for consideration.

(1) Whether Section 3(1) of the Benami Transactions (Prohibition) Act, 1988 applies to the facts of the case or whether Section 3(2) of the aforesaid Act ?

(2) In the absence of any specific pleading or evidence or e