The burden of proof in claiming a property as a benami lies on the person alleging it, and presumption favors the name holder unless proven otherwise.

JUDGMENT :

RMT. TEEKAA RAMAN, J.

1. This First Appeal is filed against the judgment and decree dated 08.06.2016 in O.S.No.18 of 2012 on the file of the III Additional District Court, Vellore at Tirupattur.

2. The defeated defendants are appellants herein. The respondent herein filed the suit in O.S.No.18 of 2012 for partition and separate possession claiming 1/4^th share in the suit property and for permanent injunction restraining the defendants from alienating or encumbering the suit property.

3. After contest, the suit was decreed and hence, this appeal was filed by the defendants.

4. The admitted factual matrix of the case are as under:

(i) The 1^st defendant is the wife of one Masilamani. The plaintiff and one Saradha Devi are the daughters of the 1^st defendant and Masilamani. The defendants 2 and 3 are the sons of the 1^st defendant and Masilamani. The said Masilamani served in the Army and subsequently he was employed in Chennai Fort. The said Masilamani died intestate. The Saradha Devi, the younger daughter of the 1^st defendant and Masilamani also died. At that time of death of Masilamani the plaintiff, defendants and Saradha Devi were his legal heirs.

(ii) The case of the plaintiff is that the suit property was originally purchased by Masilamani in the name of his wife the 1^st defendant out of his income derived from Government department. The said Masilamani was employed and he was earning. The 1^st defendant was a house wife and had no earning at any time. So the 1^st defendant is only name lender. The said Masilamani also removed the huts in the suit property and constructed 11 portions of R.C.C. molding houses of his income alone. So the suit property belonged to Masilamani alone and not to the 1^st defendant.

(iii) The defendants in the written statement specifically stated that the 1^st defendant Jayalakshmi is the absolute owner of the suit property and it is a separate property of her. She further stated that the suit property was the separate property of the 1^st defendant. The Masilamani was serving in the Army. The 1^st defendant lived alone at Tirupattur. She was doing agricultural cooli work and earning. She obtained Rs.2,500/- from her brother Velayudham and also obtained Rs.2,500/- loan on 05.03.1975 from Kesavamurthy by executing a Mortgage deed and borrowed the suit property. The 1^st defendant out of the income she derived from the 11 thatched houses in the suit property repaid the loan. The 1^st defendant in the year 1981 by mortgaging the suit property in Tirupattur Town co-operative society obtained loan and constructed the R.C.C buildings in the suit property. So the suit property was the absolute and separate property of 1^st defendant alone.

5. The Trial Court has formulated the following issues:

The following issues were framed for trial:

(i) Whether the suit property was the self acquired property of the 1^st defendant?

(ii) Whether the 1^st defendant given away the suit property to the 3^rd defendant by way of gift?

(iii) Whether the suit properties are the joint family properties of the plaintiff and defendants?

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

(v) To what other relief?

6. On the side of the plaintiff, the plaintiff Jamu