In partition suits concerning benami transactions, the burden of proving such claims lies with the defendants; failure to do so results in equal distribution of shares among legal heirs.

JUDGMENT :

S. SRIMATHY, J.

The present Appeal Suit is filed by the defendants in the suit against the decree and judgment dated 04.08.2018, passed in the suit in O.S.No.160 of 2013 on the file of the III Additional District Court, Tiruchirappalli.

2. The plaintiff in the suit is the 1^st respondent herein, the defendants 1 to 11 are the appellants herein and the defendants 12 and 13 are the respondents 2 and 3 herein. For the sake of convenience, the parties are referred as plaintiffs and defendants as per the ranking in the suit.

3. The suit is filed for preliminary decree for partition and for allotting 13/24 share in the suit property by metes and bounds. The brief facts are that the plaintiff's father and mother namely, Thennavan and Kunjammal got married in May 1965 as per Hindu rites and customs and out of the wedlock the plaintiff was born on 13.08.1981. Immediately after the delivery, the plaintiff's mother Kunjammal died on 19.08.1981, leaving behind the plaintiff and her husband as legal heirs and she died intestate. The plaintiff's mother while she was alive, had purchased the suit property on 27.02.1980 bearing Door No.59/1 and thereafter, she was in possession and enjoyment of the property. After her demise, the plaintiff was in joint possession along with his father and both are entitled to one share each. The plaintiff's father died on 17.03.2009. While he was alive, he was living with one Kamala and through her the defendants 2 to 11 were born. The contention of the plaintiff is that there was no lawful wedlock between Thennavan and Kamala. The said Kamala arrayed as 1^st defendant was already married and she was not legally separated, as per law. After the demise of the plaintiff's father Thennavan, the plaintiff issued lawyer notice calling upon to divide the suit property and hand over the possession. The plaintiff further submitted that he had also discharged the debt incurred by his father to Vijaya Bank, though the plaintiff was not a signatory to the debt incurred by his father, the plaintiff had paid a sum of Rs.2,63,718/- and discharged the debt during March 2011, which is after the demise of his father.

4. The further contention of the plaintiff is that the defendants have caused damage to the suit property and submitted the plaintiff reliably learnt that the defendants had suppressed the true facts and mortgaged a portion of the property to City Union Bank and State Bank India by creating fictitious documents and they are arrayed as 12^th and 13^th defendants. The defendants have no authority to create encumbrance in their name in respect of the entire suit property. Further neither the Thennavan had right to execute any settlement in favour of any of the defendants nor he is entitled to claim the entire suit property, since the father had only half share. Hence, he is not entitled to execute settlement deeds in respect of shares over which he had no right. If any settlement deed is created or executed by the father, the same will not bind on the shares of the plaintiff and the same is non-est in the eye of law. The plaintiff issued lawyer notice, dated 12.07.2013 but the defendants failed to reply to the same. Further, the plaintiff came to understand that the defendants had borrowed loan from 13^th defendant in loan account No.10322423777 and the defendants 12 and 13 are not