JUDGMENT :

Prayer: Second Appeal is filed under Section 100 of the Civil Procedure Code, against the judgment and decree dated 16.08.2010 made in A.S.No.31 of 2009 on the file of the Sub-Court, Madurantagam, confirming the judgment and decree dated 21.12.2004 made in O.S.No.163 of 1995 on the file of the learned District Munsif Court, Madurantagam.

1. Aggrieved over the concurrent findings made in A.S.No.31 of 2009 dated 16.08.2010 on the file of the learned Subordinate Judge, Madurantagam and in O.S.No.163 of 1995 dated 21.12.2004 on the file of the learned District Munsif, Madurantagam, the appellants, who are the plaintiffs 1 and 2 in the above referred suit, are before this Court with the present Second Appeal.

2. The suit is for declaration, declaring that the suit property is the joint family property of the plaintiffs and the defendants.

3. For the sake of convenience, hereinafter the parties are referred to, as per their litigative status before the trial Court.

4. The laconic averments made in the plaint, are as follows:

(i) The plaintiffs 1 and 2 are recognised as the legal representatives of the deceased 3rd plaintiff. The father of the first plaintiff, namely, K.J.Damodaran has got 3 brothers, viz. K.J.Venkataperumal, K.J.Bhakthavatchalam (3rd plaintiff) and K.J.Munuswamy (3rd defendant). As of now, the father of the first plaintiff (K.J.Damodaran) and the father of the second plaintiff (K.J.Venkataperumal), are no more.

(ii) The suit property is the joint family property of the plaintiffs and the defendants 1 and 3. The suit schedule property was purchased, out of the joint exertions and earnings of the first plaintiffs’ father K.J.Damodharan, the second plaintiffs’ father K.J.Venkataperumal and K.J.Bhakthavatchalam, K.J.Munusamy along with K.L.Jeyarama Naidu. While at the time of purchasing the said property, the same was purchased in the name of the first defendant. K.J.Venkataperumal’s son K.V.Sathiyanarayanan [2nd plaintiff], K.J.Bhakthavatchalam [3rd plaintiff] and defendants 1 and 3 have got equal shares in the suit property along with the other joint family properties. After made purchase, the first plaintiff alone, is maintaining the property on behalf of other plaintiffs. At the instigation of the third defendant, the first defendant is attempting to alienate the suit property to the second defendant.

(iii) The first defendant herein has given a false notice to one Sarangan calling upon him to hand over the possession of the suit property. The said Sarangan is the friend of the first plaintiff. In the said notice, it is submitted that the first defendant is not in possession of the suit property. Now, the first defendant is attempting to alienate the suit property by denying the joint family nature of the suit property, the same was denied by the plaintiffs. Therefore, it would necessary to declare that the suit property is the joint family property of the plaintiffs, first defendant and third defendant and for consequential permanent injunction. Hence, the suit.

5. The case of the first defendant, as averred in the written statement, is as follows:

(i) The relationship mentioned in the plaint, is admitted. The suit schedule property has not been purchased by utilising the joint earnings of the plaintiffs’ father K.J.Venkataperumal and his brother Bakthavatchalam. The first defendant has purchased the suit property from Vasudeva Naidu under a registered Sale Deed dated 14.05.1958 out of her own earnings and out of her own funds. After made purchase, the first defendant has been in possession and enjoyment of the suit property. She has orally mortgaged the said property with the second defendant. Now, the first defendant is very old and suffering from many ailments and taking treatment, only the third defendant is maintaining the first defendant. The suit is not maintainable under Benami Transaction Prohibition Act. Hence, the suit filed by the plaintiffs is liable for dismissal with costs.

6. Brief contentions of