JUDGMENT :

Challenge in this second appeal is made to the judgment and decree dated 31.10.2006 passed in A.S.No.42 of 2005 on the file of the Subordinate Court, Poonamallee, confirming the judgment and decree dated 25.10.2004 passed in O.S.No.219 of 2004 on the file of the District Munsif Court, Poonamallee.

2. The defendant in O.S.No.219 of 2004 is the appellant in this second appeal.

3. For the sake of convenience, the parties are referred to as per their rankings in the trial court.

4. The deceased first plaintiff claiming partition in respect of the suit properties has laid the suit against her brother, the defendant. According to the plaintiff, the suit properties belonged to her grandmother Chinnammal and thus would putforth the claim that she is entitled half share in the suit properties.

5. The defendant/appellant resisted the plaintiff's suit contending that the plaint A schedule, item 2 in B schedule are the properties of his father Ponnusamy and admitted that the third item of the B schedule belonged to Chinnammal, the grandmother and would putforth the case that the first item in B schedule was obtained by Chinnammal through her husband. Further, he would also putforth the case that the plaintiff had failed to include all the family properties and therefore the suit is bad for partial partition and according to him, the C and D schedule described in the written statement are also the joint family properties. It is also putforth by him that the oral partition was effected on 01.10.1971 whereunder, the C schedule properties described in the written statement was allotted to the plaintiff and the plaint A and B schedule and D schedule properties in the written statement had been allotted to the defendant and accordingly the defendant had been enjoying his allotted properties continuously by obtaining patta, paying Kists etc., and therefore it is his case that the plaintiff is not entitled to claim the partition in the suit properties. The defendant would also putforth the claim of title to the properties allotted to him by way of adverse possession and accordingly sought for the dismissal of the plaintiff's suit.

6. In support of the plaintiff's case, P.W.1 was examined. Exs.A1 to A24 were marked. On the side of the defendant, D.Ws.1 and 2 were examined. Exs.B1 to B60 were marked. Exs.X1 and X2 were also marked.

7. On a consideration of the oral and documentary evidence adduced in the matter and the submissions putforth by the respective parties, the Courts below were pleased to declare that the plaintiff is entitled to obtain half share in the suit properties as prayed for and accordingly granted the preliminary decree in favour of the plaintiff. Challenging the same, the second appeal has been laid by the defendant.

8. As above pointed out, according to the plaintiff, the suit properties belonged to Chinnamal, the grandmother of the parties, whereas, the defendant would putforth the case that though the plaint A schedule and second item of B schedule properties though had been acquired in the name of Chinnammal, they are actually acquired by his father Munusamy. Thus, it is noted that the defendant has raised the plea of benami as regards the abovesaid properties and according to him, though it stands in the name of Chinnammal, his grandmother, the same actually belong to Munusamy. However, considering the provisions contained in Benami Transactions Prohibition Act, 1988, the abovesaid plea of benami raised by the defendant has been rightly rejected by the Courts below and no interference is warranted with reference to the same.

9. Though the defendant would claim that the C and D schedule properties described in the written statement belonged to the family, however, he has not come forward clearly as to how come they are the joint family properties, particularly, he having not pleaded and established as to, in whose name the said properties had been acquired and whether the said properties had been enjoyed as the joint fami