Close relationship of parties implies a licence.

1. Defendant in O.S.No.218 of 1983 on the file of Principal Subordinate Judges Court Coimbatore is the appellant

2. The following substantial questions of law have been raised in the memorandum of appeal:

(i) Whether the lower appellate court is right in holding the question of benami transaction does not survive in for consideration after the recent enactment of the Benami Transactions (Prohibition) Act, 1988, in view of the decision reported in (1995)2 MLJ. 84 (S.C.).Which has taken a contrary view.

(ii) Whether the courts below are right in holding that the suit is maintainable.

(iii) Whether the lower appellate court is right in holding the Ex.B-2 the family arrangement is true and valid.

(iv) Whether the lower appellate court is right in holding that the possession of the defendant of item 1 of the ‘B’ schedule property is true.

3. The material facts could be summarised thus: Suit was laid by respondents for recovery of possession of items 1 and 2 of ‘B’ schedule and for permanent prohibitory injunction restraining defendant from in any way interfering in plaintiffs possession and enjoyment of the remaining portion of properties described in ‘A’ schedule.

4. Defendant is none other than one of the sons of first plaintiff, who died pending suit. It is the case of first plaintiff that property was purchased by her on 19.10.1945 as per decree in a suit for specific performance of contract for sale. It is her further case that defendant is only licensee in respect of item No.1 in ‘B’ schedule property and while so. he forcibly kept item No.2 of ‘B’ schedule property. Plaintiff does not want the permission to continue and consequently, licence permission was cancelled as per lawyers notice dated 18.4.1983, plaintiffs 2 and 3 also joined suit on the allegation that first plaintiff executed a will on 30.5.1979, whereby they have become owners of the property.

5. Defendant seriously disputed the claim of plaintiffs and alleged that the property was not the self-acquisition property of deceased first plaintiff. But belonged to his grandfather late Rajagopala Sastriyar. He also denied the permission alleged to have been given and alleged encroachment over item No.2 of ‘B’ Schedule. he prayed for dismissal of the suit.

6. Trial court marked Exs.A-1 to A-72 and Exs.B-1 to B-24 apart from Exs.C-1 and C-2, Commissioners report and plan. Oral evidence consist of P.Ws.1 to 3 and D.Ws.1 and 2.

7. After evaluating entire evidence, trial court came to the conclusion that the property absolutely belonged to first plaintiff and she has sufficient funds to purchase the property and the contention that she has purchased benami for grandfather is not true. Trial court further held that the occupation of building by defendant is only permissive and as a family member and therefore, he is liable to vacate the premises. It further held that plaintiffs 2 and 3 have become owners of the property. It decreed the suit as prayed for.

8. Appellant preferred A.S.No.51 of 1996 on the file of Second Additional District Judge, Coimbatore. Lower appellate court confirmed all the findings of trial court.

9. While confirming the decree of trial court, lower appellate court found that the property absolutely belonged to first plaintiff and it was her self-acquisition. At the same time, it found that under Benami Transactions (Prohibition) Act; this question cannot be allowed to be agitated and defendant is barred from questioning the title of the plaintiff. It further came to the conclusion that defendant is only a licensee. Contention of defendant that there was family arrangement and first plaintiff executed varthamana letter in his favour are all not genuine. It came to the conclusion that the occupation is only that of licensee. It held that when the relationship between first plaintiff and defendant is that of mother and son, it can be presumed that the occupation is only that of licencee. The case of plaintiffs was believed while dismissing the