Judgment :- The first appellant is the mother of the second appellant and the respondents. The first appellant died pending the Second Appeal and the second appellant has been recognised as her legal heir for the purpose of prosecuting the appeal. 2. The suit property belongs to one Raja Mudaliar. The first appellant purchased it from Raja Mudaliar from and out of her savings and her Stridana funds on 2.9.47 under the registered Sale deed Ex.A2. Ever since that date only the first appellant has been in enjoyment of the suit property. The first appellant's husband died 15 years prior to the suit. The first respondent harassed the parents and in 1959 left the family. In 1960 he began troubling his parents for his share. Therefore, partition deed Ex.A3 dated 6.10.1960 was executed. At that time, the 2nd appellant and another brother Paramasivam were minors. Though the suit property belonged to the first appellant alone, against her will she was made to include it in the partition deed and it was allotted to her and her husband under A-Schedule of Ex.A3. B, C and D Schedules were allotted to first respondent, the second appellant and other brother Paramasivam respectively. No one else had any right to the suit property except the appellant from the date of purchase. The appellant requested the Special Tahsildar, who came to survey the property to issue patta in the name of the second appellant. Therefore, the patta is in the name of the second appellant. No one else has any interest in the suit property and since the respondents interfered with their possession, the suit was filed. 3. The first respondent filed written statement denying the purchase of the suit property by the first appellant from her own funds. According to him, it was joint family property and it belonged to all the members of the joint family. He admitted that his father died 23 years ago and therefore his wife, three sons and two daughters are his legal heirs . The first respondent denied that he harassed the family and demanded division. According to him, the division was made by his father on his own accord. The plaint averment regarding the circumstances under which the suit property came to be included in the partition deed, were denied by the respondent. All the other averments were denied. 4. The first respondent denied that he harassed the family and demanded division. According to him, the division was made by his father on his own accord. The plaint averment regarding the circumstances under which the suit property came to be included in the partition deed, were denied by the respondent. All the other averments were denied. 4. The Trial Court found that the suit property was purchased by the first appellant with her own funds. The Trial Court also found that no one has any right in the suit property except the first appellant. The trial Court rejected the claim of the respondents that they were enjoying the possession and dismissed the suit. 5. The appellate Court went into the question of benami which was not pleaded by the respondents. The paragraph in the written statement which deals with the purchase of the property are as follows. "The allegation in paragraph 3 of the plaint that the suit property originally belongs to Raja Mudaliar are not correct. It is absolutely false to allege that Raja Mudaliar purchased the suit property on 14.4.45. Further allegations that the first plaintiff out of her sale funds and out of her Sridhana funds purchased the suit property on 2.9.47 are all false. The first plaintiff had no independent means to purchase any property. The properties covered under the sale deed dated 2.9.47 forms part of the joint family property and late. Aanai Gounder. The first plaintiff is not entitled to the suit property as alleged by her.....". So there is no averment that the suit property was purchased by Aanai Gounder with his funds in the name of Lakshmiammal. Therefore, there is no reason for the detailed discussion of benami when that was not the case pleaded by the respondents themselves. Now if one looks at 1st respondent's oral evidence, it is his case that the suit property was purchased by the father from the income derived by the ancestral property. But the pleadings are different. In his cross-examination, he had stated as follows: 6. P.W.2 is the first appellant, the mother. She is aged about 80 years when she gave evidence. She has stated that she sold rice. She did business and she bought the property out of her own earnings and she bought it in her name because it was purchased from her own funds. P.W.2 is the first appellant, the mother. She is aged about 80 years when she gave evidence. She has stated that she sold rice. She did business and she bought the property out of her own earnings and she bought it in her name because it was purchased from her own funds. In cross-examination she has stated that she had Rs.1,500/- in her hand from business and Rs.500/- she got from her father's house. She has also stated that if she earns Rs.5/- she would save Rs.2.50/-. She has also stated that the whole village was aware that she purchased the property under Ex.A2 from her own funds. She has referred to the scribe as Pallipatti Maniakar Lakshamanan. She has also stated that she gave him money for purchase of stamp papers. According to her even during her life time her husband was more interested in doing panchayat work, so she alone did farming of all the properties. Therefore, nothing has been elicited in her evidence to disprove the finding of the trial court that the suit property was purchased by the first appellant in her own name. The second appellant has also given evidence regarding this and he had stated that the mother alone had been in exclusive enjoyment of the property ever since her purchase. The plea is not benami and the person who claims that it was joint family property he has not been able to prove the same. The first appellant had marked not only the sale deed under which she had purchased the property but also the earlier title deed, the first appellant has marked Ex.A4, Ex.A6, A7, A8, A9 and Ex.A11 to show her title and possession and the respondent has not been able to produce even one document to show that the suit property belonged exclusively to the 1st appellant and also enjoyed by her exclusively. So, it is difficult to accept the Appellate court's finding that the suit property does not belong to the first appellant. It is not the appellant's case she derived title from her husband Aanai Gounder. It is her case that no one else was entitled to the suit property except her and it was included in the partition deed without her knowledge and she had no intention to include it in the common property. It is not the appellant's case she derived title from her husband Aanai Gounder. It is her case that no one else was entitled to the suit property except her and it was included in the partition deed without her knowledge and she had no intention to include it in the common property. There is no dispute regarding the proposition that a member of the joint family can on his own volition throw his separate property into the hotch pot but this is the property which is the individual property of the female and it is nobody's case that it was thrown in the hotch pot. In fact the respondent denies that it was thrown in the hotch pot. The mere inclusion of this property in the partition deed without any other evidence will not be sufficient to divest the first appellant of her right in the property so as to give it the character of joint family property. Except for the single recital in the partition deed there is no document prior to Ex.A3 or subsequent to Ex.A3 which shows that the first appellant had any intention of surrendering her exclusive right of the suit property. 7. 1998(1) C.T.C. Page 22 was cited for the proposition that injunction can be granted against the co-owner only when the material and substantial injury are likely to be caused. 1998(III) C.T. Page 703 was cited for the proposition that the property purchased from the income not traceable in joint family nucleus is not the joint family property. These two cases are not applicable to the facts of the case. 8. The documents filed by the appellant are quite clear and they are sufficient to show that Lakshmiammal and no one else had the right to the property and she had full powers of alienation. 9. The substantial question of law framed at the time of admission is as follows: "Whether the Lower appellate Court was right; in the view it took, on a construction of the partition deed Exhibit A-3, that the parties to the suit would be co-owners and, therefore, the relief of injunction cannot be granted?" . 10. 9. The substantial question of law framed at the time of admission is as follows: "Whether the Lower appellate Court was right; in the view it took, on a construction of the partition deed Exhibit A-3, that the parties to the suit would be co-owners and, therefore, the relief of injunction cannot be granted?" . 10. For the reasons in the aforementioned paragraphs , this Court is of the opinion that the inclusion of the suit property in Ex.A3 without any other evidence is not enough to hold that it is joint family property so as to give the respondent the right of co-owner against whom injunction cannot be granted. 11. For the above reasons, the judgment of the Appellate Court is set aside. The Second Appeal is allowed. The suit is decreed as prayed for. No costs.