The Benami Transactions (Prohibition) Act, 1988 prohibits benami transactions and provides for a mandatory presumption that the property purchased in the name of a wife or unmarried daughter is for their benefit.

ABDUL HADI, J.

8th defendant in O.S. No. 474 of 1979 on the file of Sub Court, Tiruvannamalai is the appellant, in this first appeal against the preliminary decree for partition, in respect of the suit properties claimed to be that of one Pavunambal, the mother of plaintiff and defendants 2 to 6 anti wife of the 1st defendant, granted by the said Court in favour of the 1st respondent-plaintiff.

2. The suit properties are described in A to E Schedules to the plaint. As prayed for by the plaintiff, the Court below has granted the abovesaid decree for the 1/7th share in plaint A, B and E schedule properties, 1/4th share in plaint C schedule properties and 1/14th share in plaint B schedule properties.

3. The undisputed facts are : Velayutham Chattiar, the 7th defendant had two daughters, the 8th defendant and one Pavunambal, who died on 16-7-1979, leaving her husband, the 1st defendant, her five daughters, the plaintiff and defendants 2 to 5 and one son, the 6th defendant. Defendants 1 to 6, who are respondents 2 to 7 herein remained ex parte in the suit as well as the appeal. The 7th defendant also died in 1981, pending suit and 8th defendant was recorded as the legal representative of the 7th defendant.

4. In this appeal, there is no specific argument regarding D schedule property, which was purchased under Ex. A.5 sale deed dated 30-1-1970 in favour of the abovesaid Pavunambal and 8th defendant, though the

plea in the lower Court was that this purchase was benami in their names by the 7th defendant. Learned counsel for the appellant submitted that no lis regarding D schedule property survives in view of the death of the 7th defendant pending suit leaving 8th defendant on the one hand and Pavunambal's heirs on the other hand, to divide the said property equally. Likewise, with reference to E schedule properties which are debts due to Pavunambal, there is no argument by learned counsel for the appellant.

5. Learned counsel for the appellant initially made only three submissions, which are as follows :-

(i) The first submission relates to Ex. A.3 settlement deed dated 27-2-1973 relating to B schedule properties executed by the 7th defendant in favour of Pavunambal and Ex. A.4, settlement deed dated 21-2-1973, in respect of C schedule properties, executed by the 7th defendant in favour of Pavunambal for her life and then in favour of the plaintiff and defendants 2, 3 and 4 absolutely. (Contrary to the contentions of the appellant, the Court below has held that these settlement deeds are valid).

(ii) The other argument is Ex. A. 1 sale deed dated 15-6-1961 in favour of Pavunambal for Rs. 1500/- in respect of one of the items of A schedule properties and Ex. A. 2 sale deed dated 20-7-1964 in favour of Pavunambal for Rs.4, 000/- in relation to another item of A schedule properties, are benami and the real owner is 7th defendant. (The Court below has negatived this defence in the suit and held that Pavunambal was not benamidar therein, but only the real owner.

(iii) The third argument is, a partition suit as the present one is not maintainable in respect of the abovesaid A schedule properties since the very title to the suit properties is denied by the 7th defendant, a third party in so far as partition action is concerned, the suit having been laid, paying only fixed Court fee prescribed for partition suit. In this regard, the said learned counsel also submits that the plaintiff has been set up only by the 1st defendant and the fight is only between the plaintiff and the 7th defendant. That is why defendants 1 to 6 remained ex parte. (On this point also, the Court below negatived the abovesaid contention and held that the suit is maintainable.)

6. Though only the abovesaid three arguments were made initially by learned counsel for the appellant, he, after the argument of learned counsel for the 1st respondent-Plaintiff, in reply, also sought to make one more argument against the finding of the Court below that Ex. B. 28 will dated 1