The burden of proving the benami nature of the property is on the person who pleads that he has purchased the property benami in the name of someone else.

S.S. SUBRAMANI, J.

( 1 ) FIRST defendant in o. S. No. 306 of 1984 on the file of the District Munsif court at paramakudi is the appellant. He died after institution of the Second appeal and the additional appellants have been impleaded as his legal heirs.

( 2 ) THE Plaint property was acquired by one Thulasiammal on 2. 11. 1959 as evidenced in Ex. A. 1 for a consideration of Rs. 700/ -. Ex a. 2 is also another deed in regard to the plaint property which stands in the name of the Thulasiammal. Thulasiammal had five children, the first defendant is one of the sons. The other children are Subramania Chettiar, thangathayammal, Guruswamy and Vedavalli thangathayammal and Vedavalli pre-deceased thulasiammal. Vedavalli had three children who are Vemburammal the first plaintiff, one murugesan and one Muthulakshmi. The first plaintiff has married Guruswamy Chettiar, who is a son of Thulasiammal.

( 3 ) IT is the case of the first plaintiff that late Thulasiammal executed a registered Will ex. A. 5 dated 9. 4. 1976. As per the said Will, all the properties which belonged to Thulasiammal were bequeathed to the first plaintiff. The first plaintiff had executed mortgages in respect of plaint property and plaintiffs 2 to 5 are impleaded in the suit along with the first plaintiff seeking relief in the plaint. The suit was to declare their right over the plaint property and for consequential injunction restraining the defendants from interfering with their possession.

( 4 ) FIRST defendant in his written statement contended that the sale deed in favour of his mother was benami. He said that he was in foreign countries during the relevant time and he had incurred debts. Therefore, to shield the properties, form his creditors in the foreign country, he had purchased the property in the name of his mother in his native place. It is his case that he sent money form the foreign countries for purchasing the property. Therefore, it is contended that thulasiammal did not have any right over the plaint property and therefore, she did not have any right to dispose of the same by a testamentary disposition. It is invalid.

( 5 ) IT is further contended that the Will executed by the deceased is invalid and the same is shrouded by suspicious circumstances. It is the case that ever since he came to India, he continued to be in possession of the property and he has also executed a mortgage in favour of the second defendant and they are in exclusive possession. He prayed for dismissal of the suit.

( 6 ) THE trial court as per the Judgment dated 15. 11. 1983 dismissed the suit. The trial court was of the view that the plaint property was acquired in the name of the deceased thulasiammal out of the funds sent by the first appellant. It also came to the concision that thulasiammal did not have any sufficient funds to purchase the properties and there was intention on the part of the first appellant to acquire the property as benami. It also came to the conclusion that some of the documents pertaining to the plaint property are of the first defendant. That also would show that he was the custodian of the title deeds. The factum of possession was also found in his favour. Regarding the Will, the trial court held that that is not properly proved and suspicious circumstances are not removed and consequently the suit was dismissed.

( 7 ) AAGGRIEVED by the judgment and decree of the trial court, the plaintiffs preferred a. A. No. 199 of 1983 on the file of the district Judge, Ramanathapuram.

( 8 ) THE lower appellate court reappreciated the entire evidence and came to the conclusion that both the findings of the trial court regarding benami nature of the property and execution of Will cannot be supported and therefore by setting aside the judgment and decree of the trial court, allowed the appeal and passed a decree in favour of the plaintiffs. The judgment of the lower appellate court is assailed by the first defendant in this second appeal, on the fol