Party raising plea of Benami has to prove the same.

N.V.BALASUBRAMANIN, J.

This appeal arises out of a suit for partition.

2.The appellant is the defendant and the respondent in the appeal is the plaintiff. The appellant and the respondent are the brother and sister and the parties are hereinafter referred to as arrayed in the plaint. The plaintiff filed the suit for partition claiming 50% of the share in the suit property and for mesne profits and for other incidental reliefs. The case of the plaintiff is that the suit property belonged to her mother Ellammal, which was purchased by her by two registered deeds of sale dated 27.5.1938 and 2.5.1939. According to the plaintiff, her mother Ellammal was in possession and enjoyment of the suit property and she has also put up superstructure and she was the absolute owner of the suit property and she was in enjoyment of the suit property till her date of death on 18.10.1976. She has stated that Ellammal died intestate leaving behind the plaintiff and the defendant to succeed to her estate and the plaintiff is entitled to half share and the defendant,her brother is entitled to the other half share in the property. She has stated that it became difficult to enjoy the property as the joint property and hence she called upon the defendant by notice dated 17.4.1979 for division of the suit property into two shares and alllot one such share to the plaintiff, which was refused by the defendant by his reply dated 29.4.1979, which resulted in instituting the suit by the plaintiff for partition.

, 3.The case of the defendant as seen from the written statement is that he has admitted that the sale deeds dated 27.5.1938 and 2.5.1939 are standing in the name of his mother Ellammal, but his case is that the properties were purchased by his father with his own funds in the name of his wife Ellammal. In otherwords his case is that Ellammal was a benamidar of his father and the real owner of the property was his father one Raju Maistry and he has contributed the entire sale consideration for the purchase of the suit property. It is also stated that his father Raju Maistry was a washerman by profession and was doing independent business and his mother Ellammal was not carrying any profession and she was only a house wife and she has no source of income to purchase the property. It is also stated that the superstructure was put up only by their father and subsequent to the death of his father on 9.6.1948, the defendant has opened a laundry in 1968 and has been earning income through that business. It is also stated that the defendant has improved the suit property by putting up further construction and it is denied that the plaintiff and the defendant have been in joint possession and enjoyment of the suit property. It is also stated that apart from the plaintiff and the defendant, Raju Maistry had one other son and he passed away subsequently without issue and on the death of his younger brother, the suit property became the absolute property of the defendant and the property is not liable for partition.

4. On the basis of the above pleadings, the learned Subordinate Judge,Poonamallee has framed as many as four issues for consideration and on the basis of the evidence let in by the parties both oral and documentary, he held that the defendant has not proved his case that the property was purchased by his father benami in the name of her wife Ellammal. The trial court has also found that the defendant has not established that the superstructure was built up by the defendant and the trial court held that the plaintiff would be entitled to half share in the suit property and granted the preliminary decree for partition and relegated the parties to separate proceedings for the determination of the mesne profits. It is against the judgment and decree, the present appeal has been preferred.

5. We heard Mr.T.V.Krishnamachari, learned counsel appearing for the appellant and Mr.I.Rajkumar Roberts, learned counsel for the respondent.

6.The points that a