1. The appeal has been preferred by the defendant as against the judgment and decree dated 17.03.2017 passed in the suit filed by the respondents for partition of the properties belonging to one Parisutham Nadar, husband of the 1st respondent and father of the appellant as well as the 2nd respondent.

2. The suit "A" Schedule " B" Schedule and "C" Schedule properties belong to the father Parisutham Nadar, having been purchased by him and he died intestate on 11.12.2001 leaving behind the appellant as well as the respondents to inherit the properties. Therefore, the suit for partition has been filed.

3. The younger daughter of Parisutham Nadar, namely, the appellant herein was shown as the defendant, who contended that not only "A" schedule, "B" schedule and "C" schedule properties, but also "D" schedule property, i.e. land and house bearing Door No. 4, Nirmala Nagar, Vallam Road, Thanjavur Town also belongs to Parisutham Nadar, having purchased the said property in his wife's name, the 1st respondent herein. Therefore, all the properties have to be included for partition. It is the further case of the appellant/defendant that "D" Schedule property was purchased by Parisutham Nadar and not by his wife, as she did not have any income and was only a housewife. On the side of the plaintiffs (respondents herein), 2 witnesses were examined and on the side of the defendant (appellant) herein, 3 witnesses including the appellant were examined. On appreciation of pleadings and evidence, the Trial Court decreed the suit with regard "A" schedule, "B" schedule, and "C" schedule properties and held that "D" schedule property is the absolute property of the 1st respondent, who settled the property in favour of the 2nd respondent as early as on 30.12.2002. The said decree and judgment is being challenged before this Court.

4. Heard Mr. J. Antony Jesus, learned counsel for the appellant and Mr. P. Sesubalan Raja, learned counsel for the respondents.

5. Learned counsel for the appellant would very vehemently argue that "D" schedule property was purchased by Parisutham Nadar, father of the appellant in the name of his wife, namely, the 1st respondent, out of his own income and the 1st respondent did not have any income to purchase the said property. He would refer and rely upon the evidence of DWs. 2 and 3 to contend that the funds were provided only by Parisutham Nadar and not by the 1st respondent. He would rely upon the judgment of the Honourable Supreme Court rendered in Binapani Paul vs. Pratima Ghosh and Others, (2007) 6 SCC 100 to contend that whether it is a benami transaction or not has to be decided only by the Court based on evidence and circumstances of the case. Another judgment was also relied upon by the learned counsel for the appellant rendered in Controller of Estate Duty, Lucknow vs. Aloke Mitra, (1981) 2 SCC 121 to contend that the practice of purchasing the property in the name of wife by the husband is regarded as benami transaction in India by which the beneficial interest in the property is with the husband although the ostensible title is with the wife as per Section 40(3) of Transfer of Property Act. Yet another judgment relied on by the learned counsel for the appellant is the one Vathsala Manickavasagam and Others vs. N. Ganesan and another, (2013) 9 SCC 152 to contend that the purchase of the property in the name of his wife by Parisutham Nadar could not be held to be a valid gift in favour of his wife even though it was purchased in the name of his wife. Making the above contentions, he would submit that as far as "A" schedule, "B" schedule and "C" schedule properties are concerned, there is no dispute with regard to one-third share granted by the Trial Court. However, the suit itself had been filed with mala-fide intention by the respondents only to see that the 1st respondent/mother's share is also settled in favour of the 2nd respondent/elder daughter and to deny the share of the mother in case of her death,