Ownership claims under the Benami Transactions (Prohibition) Act require clear documentary evidence; failure to provide such proof leads to dismissal of claims.

JUDGMENT :

V. BHAVANI SUBBAROYAN, J.

This Second Appeal has been directed against the Judgment and decree, dated 31.01.2006 passed in A.S.No.345 of 2004, on the file of the Principal District Court, Trichy, wherein, the Judgment and decree, dated 22.12.1998 passed in O.S.No.71 of 1996, on the file of the Sub Court, Kulithalai, are reversed.

2. Originally, the first respondent herein as plaintiff has instituted a suit in O.S.No.71 of 1996 on the file of the trial Court for the relief of declaration, recovery of possession and mense profits, wherein the appellant and the respondents 2 and 3 have been shown as the defendants 1 to 3.

3. Pending the suit, the first respondent died and the respondents 4 to 7 were brought on record as Legal representatives of the deceased first respondent.

4. For the sake of convenience, the parties are referred to as, as described before the trial Court.

5. The plaintiff's case is that the plaintiff, Savarimuthu, Francis and the second defendant-Sebastian are brothers and from and out of the money earned by him in Malaysia, as the plaintiff was employed in Malaysian Railways, he purchased a property in his own village, through his brother-the second defendant. The second defendant received the money periodically and purchased the suit properties, shockingly not in the name of the plaintiff but in his own name. When the plaintiff came to India, later on found that the property had been purchased in his brother's name and it was all a fraudulent sale deed and had a discussion with the second defendant and questioned the act. The second defendant regretted for his action and executed a registered document in favour of the plaintiff on 24.11.1971, which is called as 'Oppadaippu deed'. In the said document, it has been admitted by the second defendant that the money spent for purchasing the lands were paid by the plaintiff. The plaintiff was in possession and enjoyment of the suit properties and paying kist through the second defendant and also through his brother Savarimuthu. The documents were in the possession of the brothers and there was a family arrangement made between the plaintiff and his brothers on 27.10.1993 and they agreed to produce all the relevant documents to the plaintiff. Taking advantage of the absence of the plaintiff, the second defendant had created encumbrance over the suit properties. The plaintiff had issued an advertisement in Dinamalar daily making it clear that the encumbrance would not bind on him and the second defendant created a mortgage to a sum of Rs.10,000/- in favour of the third defendant on 19.04.1993. Later on, the second defendant had created a registered lease deed for 6 years in favour of the first defendant. Immediately, on 24.05.1995, he also created a sale deed in favour of the first defendant. The said document would not bind on the right of the plaintiff. As the second defendant had already executed 'oppadaippu pathiram', is estopped from denying the title of the plaintiff and the defendants 1 and 3 have purchased the property at their own risk. The plaintiff issued a notice to the defendants 1 and 2. A reply was received with false averments. The plaintiff is a non- citizen of Malaysia and being a citizen of India, there is no violation of the Foreign Exchange Regulation Act and he had no prohibition to purchase the suit property under the C