The absence of evidence for joint family income or business negates claims of property being ancestral or benami, affirming the presumption of ownership under the Benami Prohibition Act.

JUDGMENT :

1. Challenge is made to the decree and judgment of the trial Court dismissing the suit. The plaintiff is the son of the first defendant and brother of defendants 2 to 4.

2. It is the case of the plaintiff that, the father of the plaintiff was a gold smith and he performed marriage of all his children and he had purchased the property in the name of the first defendant. Apart from that purchase, he has also purchased two more the properties in which one is in the name of the plaintiff and the same was disposed during the life time of D. Bakthavatchalam. The another property situated at Permbur had been purchased in the name of the defendants 1 and 4, wherein the fourth defendant is in use and occupation of the same. According to the plaintiff, the property has been purchased from the earning of the plaintiff‘s father. The mother of the plaintiff is the house wife and she has no independent income to purchase any property. Only for the family convenience, the property has been purchased in the name of the first defendant and she is only a name lender. Therefore, the plaintiff prayed to pass a preliminary decree dividing the suit property into five equal shares and allot 1/5 shares each to the plaintiff and the defendants 1 to 4.

3. The first and the third defendants filed a written statement denying the contention of the plaintiff. According to them, the suit property has been purchased from and out of the self earned income of the first defendant as she was vending milk in and around her residence. She already executed a Will dated 10.01.2019 in favour of defendants 2 and 3. It is further contended that the property already settled in favour of the plaintiff, in which all the defendants have equal rights. Hence, he opposed the suit.

4. Based on the above pleadings, the following Issues were framed for consideration:-

(i) Whether the suit property was purchased in the name of the 1st defendant by the father of the plaintiff?

(ii) Whether the plaintiff and the defendants are jointly entitled to the suit property?

(iii) Whether the plaintiff is entitled to 1/5 share in the suit property?

(iv) Whether the plaintiff is entitled for the relief of permanent injunction as prayed for?

(v) Whether the plaintiff is entitled to any other relief as prayed for?

(vi) To what other relief, if any, the plaintiff is entitled to?

5. On the side of the plaintiff, the plaintiff himself was examined as PW-1 and Ex.A1 to Ex.A6 were marked. On the side of the defendants, the third defendant was examined as DW-1 and Exs.B1 and B2 were marked.

6. The trial Court, after analyzing the entire evidence and materials, dismissed the suit. Challenging the judgment and decree of the trial Court, the present Appeal Suit has been filed on the ground that the property is the ancestral property. Therefore, the property should be divided equally among all the co-owners. Further, the property being the benami property ought to have shared equally among the legal heirs of his father.

7. The learned counsel appearing for the appellant mainly contended that the mother has not entered into the witness box. Therefore, adverse interference has to be drawn against her. According to him, the mother had no income of her own. Therefore, it has to be inferred that the property was purchased as benami in the name of his wife. According to him, the learned trial Court has not considered these aspects.

8. Per contra, the learned counsel appearing for the respondents would submit that the property was the individual property of their mother. She has executed a Will dated 10.01.2019 in favour of the defendants 2 and 3. That apart, the father has purchased some property in Kosapet in the name of the plaintiff, which has been dealt with by the plaintiff long back. Therefore, in the absence of any witness to show that there was a joint family property and purchased from the income derived from the joint family business, the contention of the plaintiff that the property is the ancestral pr