The legal representatives of the first defendant in the suit in O.S.No.293 of 1996 on the file of the District Munisif Court, Eraniel, are the appellants in the above second appeal.

2. The first respondent in this appeal filed the suit in O.S.No.293 of 1996 for partition of his ½ share in suit schedule items 1, 2, 4 and 5 and 8/11 share in suit schedule 3rd item of the property.

3. The case of the plaintiff is that the suit items 1 and 2 were jointly purchased by the plaintiff and the first defendant under different sale deeds. The plaintiff further stated that the suit items 4 and 5 are the ancestral properties belong to both the plaintiff and the first defendant. As against the third item of suit property the claim of plaintiff is that out of 11 cents, 8 cents was purchased by the plaintiff and three cents was purchased by the first defendant. The plaintiff also claimed exclusive right in respect of the house that was constructed in suit first item. According to the plaintiff, the building in suit first item was constructed by the mother of the plaintiff and the first defendant and that his mother during her life time had gifted the house in his favour.

4. The suit was contested by the first defendant claiming exclusive right in respect of items 1 and 2 in the suit schedule. It is the specific case of the first defendant that the suit items 1 and 2 were purchased out of the earnings of the first defendant and that the plaintiff is only a Benami by stating that the plaintiff was then only a minor. The first defendant pleaded that the plaintiff had no earning or income or wherewithal to purchase the suit schedule items 1 and 2 and that therefore, he is the exclusive owner of the second item of suit properties. The first defendant admitted that items 4 and 5 of the suit properties are the ancestral properties and admitted the share of the plaintiff in item 4 and 5 and claimed exclusive right even in respect of item No.3. It was also the contention of the first defendant that he has title by adverse possession in respect of the items 1 to 3 in the suit properties.

5. The trial Court after framing necessary issues rejected the case of the first defendant in respect of items 1 to 3 holding against the first defendant. The trial Court found that the suit properties items 1 and 2 were purchased by the mother of the plaintiff and the first defendant in their favour and that both plaintiff and the first defendant are entitled to equal share. The trial Court also held that the plea of Benami was not proved by the first defendant. With regard to third item, the trial Court held that the plaintiff is entitled to 8 cents out of 11 cents. Since the first defendant has admitted the share of plaintiff in respect of items 4 and 5, the suit was decreed. Though the plaintiff claimed exclusive right over the building constructed in the suit first item, the trial Court disbelieved the case of the plaintiff and granted a decree for partition in all the suit properties.

6. The lower appellate Court also agreed with the view expressed by the trial Court on all issues and confirmed the judgment of the trial Court by its judgment and decree dated 11.06.2004. Aggrieved by the judgment and decree of the lower appellate Court in A.S.No.52 of 2001, the first defendant preferred the above second appeal. Since the first defendant died during the pendency of this second appeal, the other appellants namely appellants 2 to 5 are impleaded as the legal representatives of the first appellant. The second defendant was impleaded as a purchaser of item 5 from first defendant. He was impleaded as second respondent in this second appeal. He died pending suit and third respondent herein was impleaded as the legal representative of second respondent. The second respondent though died during pendency of suit, the cause title appears to be amended only before this Court.

7. At the time of admitting the second appeal, the following substantial questions of law were fr