Judgment : 1. CS.No.469/2008 has been filed to pass a judgement and decree in favour of the plaintiff as follows:- (a) to pass a preliminary decree, declaring that the plaintiff is entitled to 1/4th undivided share in the plaint schedule property and to effect a partition and separate possession of the plaintiff's share by metes and bounds, (a)(i) to pass a preliminary decree declaring that the plaintiff is entitled to 1/4th undivided share in the plaint schedule II property and to effect a partition and separate possession of the plaintiff's share by metes and bounds (b) to appoint an Advocate Commissioner to effect division of the plaint schedule property and allot separate possession in respective shares of the plaintiff and the defendants. (c) to grant a permanent injunction restraining the defendants 1 and 2 from alienating the plaint schedule property including the share of the plaintiff and the defendants in the plaint schedule property, and (d) to award costs of the suit. 2. CS.No.847/2009 has been filed to pass a judgement and decree against the Defendants as follows:- (a) directing the Defendants to vacate and hand over possession of the portion occupied in the suit schedule mentioned property viz. Two rooms measuring 1000 sq.ft. at “Kalyani”, Old No.28, New No.25, South Beach Avenue, MRC Nagar, Chennai-28 to the Plaintiff, (b) directing the Defendants to make payment of a sum of Rs.5,20,000/- being the rent payable from July, 2007 till the date of the plaint and subsequently till handing over the same, (c) granting injunction restraining the Defendants from causing any damage to the property at “Kalyani”, Old No.28, New No.25, South Beach Avenue, MRC Nagar, Chennai-28 belonging to the Plaintiff inclusive and not restricted to the two rooms in their occupation and (d) to award costs of the suit 3. Since both the suits are interconnected and the subject matter, the parties and the facts and circumstances are one and the same, these suits are disposed of by this common judgement. 4. Since both the suits are interconnected and the subject matter, the parties and the facts and circumstances are one and the same, these suits are disposed of by this common judgement. 4. The plaint averments in CS.No.469/2008 are as follows:- a. The Plaintiff is one of the founder Directors of M/s.Varnam Printing Inks (P) Limited, which carried on the business of manufacturing and marketing of printing inks at Ambattur, Chennai and he is living with his wife and daughter in the bungalow at “Kalyani” Old No.28 and New No.25, South Beach Avenue, MRC Nagar, Chennai-28, which is described in the schedule. In the said premises, the Plaintiff's mother, younger brother and sister, the Defendants 1 to 3 are also living together with the Plaintiff right from the date of occupation in 1984 after its construction. The Plaintiff and his brother, the 3rd Defendant got married in the years 2004 and 2005 respectively and are living with their wives in the above bungalow and they have a daughter each. The sister of the Plaintiff, the 2nd Defendant got married in the year 2007 and is likely to join her husband at Sharjah where he is working. b. The father of the Plaintiff Late K.P.Raghavan was working in M/s.Coates of India Limited, Calcutta, a leading printing ink manufacturer in India, as a Technical Staff since 1949 and was subsequently posted at Chennai as Technical Manager in the year 1960. While in service, he was nurturing an idea of starting a concern by himself to manufacture and market printing inks, by making use of his deep technical knowledge in the manufacture of printing inks. In the last leg of his service, the he promoted a proprietary concern in 1965 by name M/s.Kandyan Enterprises at Chennai to buy and sell printing inks, naming his wife, the 1st Defendant herein as its Proprietor, as he could not use his name during the period of service. The father of the Plaintiff left his job in October 1965 and by investing his provident funds and other financial benefits received from his Company, carried on the business in a small scale by buying and selling the printing inks in the market with the help of his known customer. Thereafter, the father of the Plaintiff, for the purpose of starting manufacturing unit of his own, applied for allotment of a shed at Ambattur Industrial Estate. Thereafter, the father of the Plaintiff, for the purpose of starting manufacturing unit of his own, applied for allotment of a shed at Ambattur Industrial Estate. In the year 1968, a shed was allotted to him at G3, Industrial Estate, Ambattur, Chennai and he started a proprietary Company in the name and style of M/s.National Printing Ink Co. with himself as Proprietor and he was selling the printing inks through M/s.Kandyan Enterprises, Chennai, both run by him. c. As both the businesses were doing good around, his father wanted to invest his business income and savings in the immovable properties. At that time, there was an offer of sale for some plots in MRC.Nagar and he had purchased two plots, viz. Plot No.27, ad measuring about one ground and 187 sq. ft in his name and Plot No.28, admeasuring about two grounds and 28 sq.ft. in the name of his wife, the 1st Defendant herein under two registered sale deeds both dated 29.11.1979 out of the funds raised from his above said business, the savings lying in the name of his children and from external borrowings. The Plaintiff's father started construction of a house in Plot No.28 for the family members to enjoy with equal rights. At one point of time, when construction of the house could not be continued further for want of funds, the Plaintiff's father had sold his other plot No.27 and invested the sale proceeds in the construction of the house besides borrowing a loan of Rs.75,000/-from LIC to complete the construction. The bungalow was completed in 1984 and the entire family consisting of the Plaintiff's father and mother, sister and brother, the Defendants 1 to 3 herein and the Plaintiff moved into the new house. The Plaintiff has been living all along in the said house since its construction and in occupation with the Defendants 1 to 3 till date. d. After finishing graduation in Chemistry, the Plaintiff joined his father in 1981 to assist him in the formulation and manufacture of printing inks, as his father was a glaucoma patient and had poor vision. The Plaintiff took over the entire administration of the manufacturing unit at Ambathur, by name, M/s. National Printing Ink Company and the marketing Company at Chennai, M/s.Kandyan Enterprises, as his father was becoming too old and frail. The Plaintiff took over the entire administration of the manufacturing unit at Ambathur, by name, M/s. National Printing Ink Company and the marketing Company at Chennai, M/s.Kandyan Enterprises, as his father was becoming too old and frail. In 1985, his brother, the 3rd Defendant who finished his UG Course, joined the Plaintiff in the administration of the said business. The 2nd Defendant, who completed Post Graduation, also joined the Company in 1988 to look after the accounts and finance of the Company. As the Plaintiff's father could not go to the factory at Ambattur from his residence at Chennai regularly and involve himself in the day to day administration of the business, he wanted to convert his proprietary concern M/s. National Printing Company into a partnership concern in the name of M/s. Triyaar & Co. with his two sons and himself as partners so as to enable the Plaintiff and the 3rd Defendant to do an effective business without his personal involvement. But, the Plaintiff had suggested for promotion of a new private Limited Company with all the family members as Directors to carry on the business of manufacturing and selling of the printing inks and accordingly, a new Company, by name, M/s.Varnam Printing Inks (P) Limited was registered in 1989 with the Plaintiff's father as Managing Director and the Plaintiff and the Defendants 1 to 3 as Directors and the machineries and the business for the manufacture and selling of the printing inks were transferred from the proprietary concern of the Plaintiff's father, M/s. National Printing Ink Company, while the ownership of the land and the factory buildings remained with the M/s. National Printing Ink Company. Thereafter, the Plaintiff procured more orders and the business was developed to a greater extent. e. The Plaintiff's father died on 23.1.1994, leaving behind him the Plaintiff's mother, sister and brother, the Defendants 1 to 3 and himself as his only legal heirs to succeed to all his movable and immovable properties, besides all the savings, shares, investments, interests, etc. earned by him. Before his death, the Plaintiff's father executed a Will dated 13.02.1986, whereby he had bequeathed all his movable and immovable properties besides all the saving, shares, investments, interests, etc. earned by him to his legal heirs. earned by him. Before his death, the Plaintiff's father executed a Will dated 13.02.1986, whereby he had bequeathed all his movable and immovable properties besides all the saving, shares, investments, interests, etc. earned by him to his legal heirs. Thereafter, the Plaintiff made the Plaintiff's mother, as the Managing Director of the Company in the place of his deceased father, though she was not much educated and exposed to business management and she was only a name lender. The Plaintiff in good faith arranged for transfer of all the shares that remained in the name of the deceased Plaintiff's father. The Plaintiff also arranged for taking more shares in the name of the Defendants 1 and 2 with a good intention and trust that the same could be enjoyed by the family members jointly. Thereafter, Central Excise Department prohibited the sale of inks by M/s.Varnam Printing Inks (P) Limited to Kandyan Enterprises, as the Managing Director and Proprietor of both the concerns were one and the same person i.e. the 1st Defendant. Thereafter, in 2002 the Plaintiff launched a new venture to import and sell papers through M/s.Kandyan Enterprises. While so, after a marriage proposal was finalized for the 2nd Defendant with one S.Sujithkumar, problems and misunderstanding crept into the family as well as in the business. The situation had become worsened further after the betrothal function of the 2nd Defendant that took place on 20.6.2007. The behaviour and attitude of the Defendants 1 and 2 were changed towards the Plaintiff and the 3rd Defendant. However, the Plaintiff has made all arrangements for conduct of the marriage of the 2nd Defendant on 24.10.2007. Few days after the marriage, the Plaintiff and his brother were shocked to receive pressure from his mother and sister, the Defendants 1 and 2 to vacate the house, stating that she had planned to go to Dubai along with the 2nd Defendant to join his son in law after letting out the suit property for rent. The Defendants 1 and 2 have also started harassing the Plaintiff's wife when she was lonely at home with the child. The Defendants 1 and 2 have also started harassing the Plaintiff's wife when she was lonely at home with the child. f. On 9.2.2007, when the Plaintiff left for Indore to see the newly born baby and the wife of the 3rd Defendant, the Defendants 1 and 2 brought a self cheque of Rs.2 lakhs and tried to draw the money from the Bank and instructed the Senior Manager of the Bank to close the overdraft account without the knowledge of the Plaintiff and the 3rd Defendant. They also sent a letter to the Bank Manager to freeze the account and to stall all the business. Even after the Plaintiff and the 3rd Defendant explained the legal position and made it clear that they are legally entitled for 1/4th share each in the suit property, the Defendants 1 and 2 continued to forcefully oust the Plaintiff and the 3rd Defendant with their families out of the suit property. The Plaintiff was, therefore, left with no other alternative than to demand for partition of the suit property and asked the Defendants 1 to 3 to agree for partition. But, the Defendants 1 and 2 refused to partition, by saying that the title deeds of the suit property stood in the name of the 1st Defendant and she was entitled to deal with the property according to her wish. The Plaintiff came to know from the Encumbrance Certificate dated 2.4.2008 that a settlement deed dated 28.6.2007 was executed by the 1st Defendant in favour of the 2nd Defendant, illegally settling the suit property. Though the 1st Defendant does not enjoy absolute right over the suit property so as to deal with it in any manner, she in collusion with the 2nd Defendant has registered the settlement deed executed by her in favour of the 2nd Defendant. The 1st Defendant is not the real owner of the suit property and only as an ostensible owner, she has been holding its title deeds in her name in a fiduciary capacity for the benefit of the legal heirs of her late husband, K.P.Raghavan. She is only a name lender and not a true and lawful owner except that the sale deed of the suit property stands in her name ostensibly. Therefore, the settlement deed dated 28.6.2007 executed by the 1st Defendant is a sham and nominal and void ab initio in the eye of law. She is only a name lender and not a true and lawful owner except that the sale deed of the suit property stands in her name ostensibly. Therefore, the settlement deed dated 28.6.2007 executed by the 1st Defendant is a sham and nominal and void ab initio in the eye of law. As he has come to know about the illegal transaction with regard to the suit property only on 2.4.2008, when the 1st Defendant registered the settlement deed dated 28.6.2007 in favour of the 2nd Defendant, the Plaintiff has filed this suit. The settlement deed is not acted upon. g. The suit property, by all means, both factually and legally and in equity as well, is the joint family property, after the death of the Plaintiff's father, as the same was purchased by the father of the Plaintiff in the name of his wife, the 1st Defendant out of the income derived from his business. The nucleus, out of which the funds were raised for the purchase of the suit property, is nothing but the investments made by the Plaintiff's father as stated supra. In the Will, it is also made clear that the business should not be closed at any time unless and until all the members of the family, i.e. the Plaintiff and the Defendants 1 to 3 agree and that in case one of the members who wishes to quit, he or she can do so and he or she would be paid Rs.1 lakh from the account of the business. The intention of the Testator is very much clear and unambiguous that all his movable and immovable properties are to be succeeded by the Plaintiff and the Defendants equally. The 1st Defendant is only a Benamidar to the above transaction, wherein the sale consideration was provided by the Plaintiff's father. The Benami Transactions (Prohibition) Act, 1988 does not prohibit such a transaction and the Act further provides that the purchase of the property by any person in the name of his wife can be contested and proved for the benefit of the husband and accordingly for the benefit of his legal heirs after his death, intestate. The Benami Transactions (Prohibition) Act, 1988 does not prohibit such a transaction and the Act further provides that the purchase of the property by any person in the name of his wife can be contested and proved for the benefit of the husband and accordingly for the benefit of his legal heirs after his death, intestate. The 1st Defendant is holding the suit property in her fiduciary capacity for the benefit of the members of the family of Late K.P.Raghavan after his death and therefore, the Plaintiff has become entitled for 1/4th share in the suit property as a legal heir of the said K.P.Raghavan under Class I of the Schedule in the Indian Succession Act, 1956. In such circumstances, CS.No.469/2008 has been filed for the reliefs as stated above. 5. In CS.No.469/2008, in the Written Statement filed by the 1st Defendant, it is averred as follows:- a. The suit property was the self acquired property of the 1st Defendant. Out of her free will and volition, to avoid any future disputes after her life time, she had settled the suit property in favour of her daughter, the 2nd Defendant herein. The averments regarding Benamidar are false. The Plaintiff and the 3rd Defendant are my sons and due to difference in family, they have come forward with this false suit. The 1st Defendant had married K.P.Raghavan on 17.5.1953, who was employed in M/s.Coates of India Limited, Calcutta, a leading printing ink manufacturing Company in India. In 1958, he was transferred and posted at Chennai. The 1st Defendant was aspiring to be entrepreneur and with the knowledge she acquired from her husband, had invested amounts, by selling her jewellery that was given to her at the time of her marriage by her parents and started a Proprietress concern in 1962 by name M/s.Kandyan Enterprises at Chennai. The husband of the 1st Defendant had left his job and had not taken up any employment for three years. Originally ink concentrates were purchased, then mixed, blended and finished produced sold. The blending was done by the 1st Defendant at home and marketed by her husband. Thereafter, K.P.Raghavan managed to get a shed allotted in Ambathur Industrial Estate on rental basis from the Government of Tamil Nadu and started a proprietorship concern in his name. The 1st Defendant had contributed from her earning made from M/s.Kandyan Enterprises and borrowing made from his friends. Thereafter, K.P.Raghavan managed to get a shed allotted in Ambathur Industrial Estate on rental basis from the Government of Tamil Nadu and started a proprietorship concern in his name. The 1st Defendant had contributed from her earning made from M/s.Kandyan Enterprises and borrowing made from his friends. Late K.P.Raghavan also used his provident fund amounts and invested the same in the proprietorship concern M/s.National Printing Inks Company. M/s.Kandyan Enterprises was managed by the 1st Defendant and M/s.National Printing Inks Company was managed by her husband. K.P.Raghavan had not invested any amount for setting up or starting up of the M/s.Kandyan Enterprises. M/s.National Printing Ink Company was later converted into a private limited Company and incorporated and registered under the provisions of the Companies Act under the name and style of M/s.Varnam Printing Inks Private Limited. Though K.P.Raghavan wanted to retain the name of the Company as M/s.National Printing Ink Company, there was an objection raised by the Registrar of Companies as the name “National” was not allowed to be used and therefore, at the suggestion of the 1st Defendant, the name was changed to M/s.Varnam Printing Inks Private Limited. Thus, the proprietorship concern of the 1st Defendant's husband with all its assets and liabilities was taken over by the said concern M/s.Varnam Printing Inks Private Limited. b. M/s.Kandyan Enterprises continued to carry on business in printing inks and allied products like anti set off liquid spray and had its own customer base. No person, excepting the 1st Defendant was involved in the manufacturing process. The products manufactured and marketed by the 1st Defendant were supplied to various customers. Subsequent to the incorporation of M/s.Varnam Printing Inks Private Limited, M/s.Kandyan Enterprises continued to market the printing inks manufactured by the above Company. This arrangement continued until the death of the 1st Defendant's husband. Thereafter, since the 1st Defendant took over as Managing Director of M/s.Varnam Printing Inks Private Limited, it was decided that the said Company would market the printing inks, as the same would be in the interest of the business. The income earned from M/s.Kandyan Enterprises was exclusively used by the 1st Defendant for her needs and no person had any share in respect of the same. The 1st Defendant purchased the plaint schedule I mentioned property on 29.11.1979 from Adyar Coop. The income earned from M/s.Kandyan Enterprises was exclusively used by the 1st Defendant for her needs and no person had any share in respect of the same. The 1st Defendant purchased the plaint schedule I mentioned property on 29.11.1979 from Adyar Coop. House Site Society Limited, registered as Doc.No.2010 of 1979 in SRO of Mylapore and from and out of her earnings from M/s.Kandyan Enterprises and with a loan availed by the 1st Defendant from LIC, construction was put up over the plaint schedule mentioned property. The plot adjacent to the plaint schedule mentioned property, purchased by the Defendant's husband, was later sold by him to one Chandramouli. The sale was made, as the funds were required by the 1st Defendant's husband to purchase the factory land and shed for M/s.Varnam Printing Inks Private Limited at Ambattur, which was under lease till then. When the business activities of M/s.Kandyan Enterprises were put in operation, the Plaintiff was one year old. The 1st Defendant's husband had expired on 23.1.1994 and at that time, her children were very young and the 1st Defendant took control of all the businesses. c. Serious differences and disputes have cropped up between the family members of the Defendants and the third Defendant had gone to the extent of physically assaulting the 1st Defendant only for the properties and the 1st Defendant has also instituted several complaints and also a suit in respect of the other businesses. The 2nd Defendant filed a company petition before the Company Law Board in respect of M/s.Varnam Printing Inks P Limited. The Plaintiff does not have any knowledge whatsoever regarding the acquisition of the suit schedule mentioned property and has deliberately come forward with this suit making false and untenable allegations. In order to keep peace, the 1st Defendant's daughter the 2nd Defendant herein had quit the office in May 2007. In the mean time, as the family situation was worsening, the 1st Defendant had requested her sons to take her to a lawyer to make her Will. They took her to their family lawyer V.M.G.Ramakannan, with whom the 1st Defendant confided that she wanted to settle the property which she had purchased from and out of her self earning in the year 1979 in the name of her daughter, the 2nd Defendant herein, who was then a spinster. They took her to their family lawyer V.M.G.Ramakannan, with whom the 1st Defendant confided that she wanted to settle the property which she had purchased from and out of her self earning in the year 1979 in the name of her daughter, the 2nd Defendant herein, who was then a spinster. The 1st Defendant had explained to the lawyer the situation at home and office and conveyed her intention to settle the property in the name of her daughter, the 2nd Defendant herein. Subsequently, the 1st Defendant understands that V.M.G.Ramakannan, Advocate had communicated the same to the Plaintiff. Thereafter, the 1st Defendant was called by the said Advocate to his office, who tried to prevail on the 1st Defendant to reconsider her decision in the interest of the family giving equal shares to all three children. The said Advocate had explained that the 1st Defendant's daughter, 2nd Defendant herein and herself would continue as Directors, drawing salary and have equal rights with her other children in business. The 1st Defendant was compelled and forced to write a Will. But, the 1st Defendant had insisted that her share in all business and the Proprietary concern, M/s.Kandyan Enterprises would go exclusively to her daughter viz. the 2nd Defendant herein. Thereafter, the said Advocate had communicated this to the 1st Defendant's daughter that the Plaintiff and the 3rd Defendant are taking efforts to get the Will written and to safeguard her interest. There was frequent misunderstanding in the family and in light of the attitude of the two brothers, the 1st Defendant had consulted another lawyer, made a settlement deed settling her self acquired property namely house more fully described in the schedule to the plaint in favour of the 2nd Defendant herein to avoid any further disputes, out of her free will and volition. d. As regards the allegations contained in paragraph 3, the Plaintiff has not contributed anything towards M/s.Varnam Printing Inks P Limited. The business carried on by the 1st Defendant in the name of M/s.National Printing Ink Company, was converted into a Private Limited Company, named as M/s.Varnam Printing Inks Private Limited. The Plaintiff and the 3rd Defendant are living in one room respectively each in the suit schedule mentioned property. They have left the premises and subsequently prior to the filing of the suit forcibly entered into the premises and are in forceful occupation of one room each. The Plaintiff and the 3rd Defendant are living in one room respectively each in the suit schedule mentioned property. They have left the premises and subsequently prior to the filing of the suit forcibly entered into the premises and are in forceful occupation of one room each. As regards allegations contained in paragraph 4, the name “Kandyan” is the 1st Defendant's family name and the 1st Defendant out of her own resources started the proprietary concern. The 1st Defendant's husband throughout his life time had actively encouraged the 1st Defendant to be self sustaining and has developed the entrepreneurial skill in the 1st Defendant. During his life time, the 1st Defendant had all freedom to carry on business and there was no dispute or quarrel about the properties or their ownership. Solely for the purpose of maintaining the above suit, the allegations have been made as if the 1st Defendant's husband was doing the business in the name of the 1st Defendant. In fact, due to the moral support given by her husband during his life time, the 1st Defendant was able to manage even the other businesses. The Plaintiff does not have any knowledge about any of the transactions as he was not born then. The Plaintiff was then too young; however, he has stated as if he has personal knowledge about the business started by the 1st Defendant and about acquisition of property. As regards allegations contained in paragraph 5, the suit schedule mentioned property was purchased by the 1st Defendant out of her own funds on 29.11.1979. The house was constructed over the suit schedule mentioned property by availing loan from LIC. In fact, the adjacent plot was purchased by the 1st Defendant's husband. Late K.P.Raghavan sold the said plot for purchase of factory premises for M/s.National Printing Ink Company now known as M/s.Varnam Printing Inks Private Limited. The 1st Defendant specifically denies the allegation that the 1st Defendant's husband had purchased the suit schedule mentioned property in the 1st Defendant's name. The Plaintiff does not have any knowledge of the struggle we have undertaken to bring them up. Neither the Plaintiff nor the 3rd Defendant have any right whatsoever over the suit schedule mentioned property. At the most, their possession was permissive prior to leaving the suit schedule mentioned property. The Plaintiff does not have any knowledge of the struggle we have undertaken to bring them up. Neither the Plaintiff nor the 3rd Defendant have any right whatsoever over the suit schedule mentioned property. At the most, their possession was permissive prior to leaving the suit schedule mentioned property. Their possession today, at the most, is only as trespassers and they do not have any right whatsoever over the suit schedule mentioned property. As regards the allegations contained in paragraph 6 of the plaint, the role of the Plaintiff is denied and in any event not germane for the purpose of this suit. e. As regards allegations contained in paragraph 7, the same pertains to M/s.National Printing Ink Co. and M/s.Varnam Printing Inks P Limited and not germane for the purpose of this suit. The disputes pertaining to M/s.Varnam Printing Inks Private Limited is pending before the Company Law Board. The Plaintiff and the 3rd Defendant are mismanaging the said business and in any event, the allegations pertaining to the said Company are not germane for the purpose of this suit. As regards allegations contained in paragraph 8 of the plaint, the 1st Defendant's husband executed a Will bequeathing all his properties in equal share to the Plaintiff and the Defendants. The suit schedule mentioned property, being exclusive property of the 1st Defendant, does not find a place in the Will executed by her husband. The 1st Defendant was running her business ever since its formation i.e. M/s.Kandyan Enterprises and statements have been made only for the purpose of maintaining the suit. The issues pertaining to M/s.Varnam Printing Inks (P) Limited are not gemane for the purpose of this suit. In fact, the 1st Defendant with an intention to take back seat reposing faith in the Plaintiff and the 3rd Defendant had signed cheque books pertaining to M/s.Kandyan Enterprises and entrusted the business activities to the Plaintiff and the 3rd Defendant. The faith and confidence reposed by the 1st Defendant had been misused by the Plaintiff and the 3rd Defendant and amounts have been fraudulently transferred to other entities and third parties have been taken in as partners in these entities. The 1st Defendant is an income tax assessee. The present suit has been filed for collateral purpose and false allegation as if the property was purchased by the 1st Defendant's husband in her name. The 1st Defendant is an income tax assessee. The present suit has been filed for collateral purpose and false allegation as if the property was purchased by the 1st Defendant's husband in her name. Events subsequent to the acquisition of the property are irrelevant for the purpose of the suit. The suit schedule mentioned property has been purchased by the 1st Defendant out of her own funds and building constructed by availing loan from LIC and duly repaid by the 1st Defendant out of her business income from M/s.Kandyan Enterprises. f. The allegations made in paragraphs 8 to12 are false and incorrect. The 1st Defendant has executed a settlement in favour of the 2nd Defendant and the Plaintiff is not entitled to question the same. He does not have any right or authority to question the same. The suit property is not a joint family property. The 1st Defendant is presently being taken care off by the 2nd Defendant only. The 1st Defendant has no means for her to day sustenance and the present suit has been filed out of ill will. As regards the allegations contained in paragraph 13, no cause of action has arisen for filing of this suit. All the other allegations in the plaint, which are not specifically traversed into, are denied as false and incorrect. The Plaintiff is not entitled to any partition and the suit is not maintainable either in law or on facts and is liable to be dismissed. 6. In CS.No.469/2008, the 2nd Defendant has filed a separate written statement adopting the written statement filed by the 1st Defendant. 7. In CS.No.469/2008, in the Written Statement filed by the 3rd Defendant, it is averred as follows:- a. The Plaintiff and the Defendants 2 and 3 are the children of Late K.P.Raghavan and the 1st Defendant. As a matter of fact, the suit property was purchased by his father, Late K.P.Raghavan under a benami transaction in the name of the 1st Defendant and hence, the claim of the Plaintiff for partition of the suit property into four shares to be allotted to the Plaintiff and the three Defendants equally with 1/4th share each is more appropriate and justified in accordance with law as well as on equitable grounds. It is true that as stated by the Plaintiff, Late K.P.Raghavan was working in M/s.Coates India Limited, Calcutta and was transferred to Chennai in 1960. It is true that as stated by the Plaintiff, Late K.P.Raghavan was working in M/s.Coates India Limited, Calcutta and was transferred to Chennai in 1960. In 1965, he started a proprietary concern by name M/s.Kandyan Enterprises at Chennai to buy and sell printing inks, putting the name of his wife, the 1st Defendant as its proprietrix as he was in the service. He had then left the job and started doing the above business, investing his provident funds and other retirement benefits. He was running the business well and in order to expand the business, he had got an allotment of a shed at G3, Industrial Estate, Ambattur, Chennai allotted by SIDCO and registered a proprietary Company in the name and style of M/s.National Printing Ink Co for manufacturing printing inks and selling them through the M/s.Kandyan Enterprises, his other concern. Thereafter, he had purchased two plots i.e. Plot No.27, admeasuring about one ground and 187 sq.ft. in his name and plot No.28, admeasuring about two grounds and 28 sq.ft. in the name of the 1st Defendant under two registered sale deeds both dated 29.11.1979. He also constructed a house in the Plot No.28 for the benefit of the family members to enjoy equally. In fact, the Plaintiff' father had to sell his other plot No.27 to complete the construction. After the construction of the house in 1984, the Plaintiff, the Defendants 1 and 2 and the 3rd Defendant and his father moved into the new house. The Plaintiff and the Defendants 1 to 3 have been living all along in the said house since its occupation till date. The 3rd Defendant and the Plaintiff have been living with their family after their marriage in the suit property. While so, after the marriage finalization of the 2nd Defendant, the problems started in the family and after the conduct of the betrothal ceremony of the 2nd Defendant on 20.06.2007, the Defendants 1 and 2 became more arrogant and discourteous to the Plaintiff and the 3rd Defendant. While so, after the marriage finalization of the 2nd Defendant, the problems started in the family and after the conduct of the betrothal ceremony of the 2nd Defendant on 20.06.2007, the Defendants 1 and 2 became more arrogant and discourteous to the Plaintiff and the 3rd Defendant. A few days after the marriage on 24.10.2007, the Plaintiff and the 3rd Defendant were treated badly and their wives were threatened by the Defendants 1 and 2 to vacate the house, the suit property informing that they wanted to let out the home for rent as they had decided to leave the suit property and live in Dubai with the husband of the 2nd Defendant. b. On 9.2.2007, the Bank Manager called the 3rd Defendant, who used to represent the M/s.Kandyan Enterprises always for all banking purposes and informed that the Defendants 1 and 2 were demanding payment of Rs.2 lakhs by presenting a cheque from the account of M/s.Kandyan Enterprises. The 3rd Defendant explained the difficulty in allowing the payment of the said cheque for such a huge amount without consulting the others and hence, the payment was denied by the Bank. The Defendants 1 and 2 became very ferocious against the Plaintiff and the 3rd Defendant and also sent a letter to the Manager to freeze the account of M/s.Kandyan Enterprises. After the above incident, the Defendants 1 and 2 had started harassing and threatening the Plaintiff and the 3rd Defendant to go out of the suit property. Though the Plaintiff and the 3rd Defendant have resisted the same as they are entitled for shares each in the suit property, but the Defendants 1 and 2 continued to take all coercive steps to oust them out of the suit property by giving false police complaints against them. The above action of the Defendants 1 and 2 grew suspicious in the minds of the Plaintiff and the 3rd Defendant and the Plaintiff had obtained the encumbrance certificate dated 2.4.2008 from the Office of the Sub Registrar, Santhome in respect of the suit property. On scrutinizing the encumbrance certificate, the 3rd Defendant and the Plaintiff were shocked to learn that a settlement deed dated 28.6.2007 was already registered by the 1st Defendant in favour of the 2nd Defendant in respect of the suit property though the 1st Defendant had no absolute right over the suit property. On scrutinizing the encumbrance certificate, the 3rd Defendant and the Plaintiff were shocked to learn that a settlement deed dated 28.6.2007 was already registered by the 1st Defendant in favour of the 2nd Defendant in respect of the suit property though the 1st Defendant had no absolute right over the suit property. The 1st Defendant in collusion with the 2nd Defendant has arranged for settlement of the suit property in favour of the 2nd Defendant. The 1st Defendant had been holding the title only in a fiduciary capacity for the benefit of the family members of her late husband, K.P.Raghavan. Therefore, the settlement deed dated 28.6.2007 executed by her is illegal and not binding on the 3rd Defendant and the Plaintiff. The suit property, which was acquired out of the income from the M/s.National Printing Ink Company and M/s.Kandyan Enterprises both run by Late K.P.Raghavan and from the funds raised through the sale of his other plot no.27 as well as his personal savings and other loans, is nothing but a joint family property of the Plaintiff and the Defendants and the 1st Defendant is only a benami holding a ostensible title on behalf of the family members of Late K.P.Raghavan. The Benami Transactions (Prohibition) Act, 1988 provides for purchase of property by any person in the name of his wife and the same can be claimed and proved for the benefit of the husband. The Plaintiff and the Defendants 1 to 3 are entitled for 1/4th shares in the suit property as legal heirs of the said K.P.Raghavan under Class I of the Schedule in the Indian Succession Act, 1956. His father, before his death in 1994, had executed a Will dated 13.02.1986 bequeathing all his movable and immovable properties as well as his savings, shares, investments, interests, etc. to his legal heirs, i.e. the Plaintiff and the Defendants 1 and 3 to be enjoyed equally. Hence, all the parties are entitled for 1/4th share in the suit property. In such circumstances, the above suit for partition deserves to be allowed as prayed for in accordance with law. 8. The plaint averments in CS.No.847/2009 are as follows:- a. The Defendants 1 and 2 are the brothers of the the Plaintiff and born through the legal wedlock between K.P.Raghavan and K.Nalini Raghavan. In such circumstances, the above suit for partition deserves to be allowed as prayed for in accordance with law. 8. The plaint averments in CS.No.847/2009 are as follows:- a. The Defendants 1 and 2 are the brothers of the the Plaintiff and born through the legal wedlock between K.P.Raghavan and K.Nalini Raghavan. The Plaintiff's mother K.Nalini Raghavan had purchased the vacant land presently bearing Municipal New Door No.25 (Old No.28) “Kalyani” South Beach Avenue, MRC Nagar, Chennai 600028 within the territorial jurisdiction of this court under a deed of sale executed at Madras on 29th November 1979 by the Adyar Cooperative Housing Society Limited for a valuable consideration and registered as Document No.2010 of 1979 on the file of the Sub Registrar of Assurances, Mylapore. The mother of the Plaintiff in the light of the grooming differences in the family to avoid any dispute over the property after her life time, settled the suit schedule mentioned property out of her own will and accord on 28.6.2007 in favour of the Plaintiff under a Registered Deed of Settlement registered as Doc.No.1622 of 2007 on the file of the Sub Registrar of Assurances, Mylapore. In furtherance to the settlement deed, the revenue records have been mutated and presently stand in the name of the Plaintiff. The electricity connection has also been transferred in the name of the Plaintiff. The Defendants 1 and 2 started acting in a manner detrimental to the interest of the Plaintiff and her mother in the businesses wherein the Plaintiff and the mother were major shareholders. Serious difference crept up in the family and the Defendants who were aware about the settlement by the mother in favour of the Plaintiff, filed a suit in CS.No.469/2008 seeking for partition of the suit schedule mentioned property falsely contending that the suit property is not the exclusive property of the mother of the Plaintiff. The Defendants 1 and 2 have not challenged the settlement deed and the suit filed by them in CS.No.469/2008 is being suitably defended. The Plaintiff' mother has denied the allegations put forth by the Defendants 1 and 2 regarding the manner of acquisition of the suit schedule mentioned property as well as explained the circumstances giving rise to the execution of the settlement deed in favour of the Plaintiff. The Plaintiff' mother has denied the allegations put forth by the Defendants 1 and 2 regarding the manner of acquisition of the suit schedule mentioned property as well as explained the circumstances giving rise to the execution of the settlement deed in favour of the Plaintiff. The Defendants 1 and 2 have filed the suit on ill advice solely with an intention to harass the Plaintiff. b. The Plaintiff has instituted a Company Petition in CP.No.10/2009 in respect of the various acts of oppression and mismanagement committed by the Defendants 1 and 2 in respect of the M/s.Varnam Printing Inks Private Limited. The mother of the Plaintiff has also instituted a suit before this court for certain relief. The Plaintiff has become the sole and absolute owner of the suit property. The Defendants, who were residing in the suit property, left the property after execution of the settlement deed and just before the filing of the suit in CS.No.469/2008, forcibly entered into the suit property and are in forcible occupation of two rooms in the first floor of the house. The entrance to the suit property is common and the entire property has a single kitchen and the Defendants are in forcible occupation of the two rooms with an intention to cause disharmony. The mother of the Plaintiff is residing with the Plaintiff and the Plaintiff has been taking care of her. Several complainants have been lodged by the Plaintiff as well as the Plaintiff' mother as against the Defendants with the Police authorities and the Defendants have been getting away with their money, muscles power and influence. The 1st Defendant has preferred a complaint with the Electricity Department alleging that name ought not to have been changed in respect of the electricity connection in the said property. The Plaintiff sent a reply on 9.11.2008 to the Department. The Defendants 3 and 4 in order to put pressure and chase out the Plaintiff and her mother from the premises have undertaken acts aimed at creating disharmony in the family and in the premises. The Plaintiff sent a reply on 9.11.2008 to the Department. The Defendants 3 and 4 in order to put pressure and chase out the Plaintiff and her mother from the premises have undertaken acts aimed at creating disharmony in the family and in the premises. The Defendants are in the habit of opening the water taps leaving it open overnight, leaving the house open and making it unsafe for the Plaintiff and her mother to live, using the common kitchen and garden creating a mess by throwing waste and other products after they finished cooking and dumping waste wantonly by leaving the same in front of the room of the Plaintiff and overhearing conversations of the Plaintiff. Though the property tax, water taxes are being paid prior to the deed of settlement from the account of the Company and treated as drawings of the Plaintiff's mother subsequent to the deed of settlement, the Defendants 1 and 2 have maintained that the Plaintiff has to pay the taxes and charges for electricity consumption. The Plaintiff has been making payment of these charges. c. The Defendants indulged in activities of physical assault, in respect of which the Plaintiff and her mother had preferred complaint with the Police concerned. Since the Defendants are influential, every time they had managed to apologize and be let out with an apology without any action being taken by the authorities. The Plaintiff demanded the Defendants to vacate and hand over possession of the property and pay rents at Rs.20,000/- per month. They have failed and neglected to comply with the same. The Defendants by their acts have caused lot of loss and damage and every time before the police authorities promised to make payment of amounts and till date have not complied with. They are not contributing any amount even for maintenance of mother. They are causing untold hardship and damage to the property. The Plaintiff reliably understands that the Defendants have acquired interest in respect of another property and have shifted most of the things there and only with an intent to harass and make an illegal gain and damage the property, the Defendants are continuing in occupation of 2 rooms in the first floor of the property, knowing fully well the same would result in hardship and loss to the Plaintiff. The Defendants do not have any right or authority to reside in the property. The Defendants do not have any right or authority to reside in the property. The Defendants 3 and 4, who are wives of the Defendants 1 and 2 respectively, are not residing in the property and keep visits the property on and off and making merry in causing hardship to the Plaintiff and her mother during their stay. Though originally the Defendants were permitted to occupy the portion of the house, on coming to know of the Deed of Settlement had left the premises. Thereafter, the Plaintiff understood that for the purpose of maintaining the suit in CS.No.469/2008 before this court entered into the property and are in forcible occupation of the two rooms and are using the common kitchen in the ground floor. Thus, the Plaintiff values the relief (a) prayed for in the plaint at Rs.10,50,000/- though 12 times of monthly rent in respect of the portion in occupation of the Defendants is Rs.2,40,000/- The market value of the portion occupied is Rs.10,50,000/- d. The Defendants are liable to pay amount in respect of the portion forcibly occupied by them till handing over of possession to the Plaintiff. The property viz. “Kalyani” Old No.28, New No.25, South Beach Avenue, MRC Nagar, Chennai-28 is situated in a prime locality and the portion in forcible occupation of the Defendants would easily fetch a sum of Rs.20,000/- per month. Due to the forcible occupation by the Defendants, the Plaintiff is not in a position to rent out the property and earn rental income. No person is willing to occupy the property due to the forcible occupation by the Defendants and the Plaintiff is suffering a loss of about Rs.2 lakhs per month which the property at MRC Nagar would otherwise fetch if rented out. The Defendants do not have any right, claim or title over the property and the other suit has been filed only to thwart the Plaintiff's right to peacefully possess and enjoy the suit schedule mentioned property. In such circumstances, the suit has been filed. 9. The Defendants do not have any right, claim or title over the property and the other suit has been filed only to thwart the Plaintiff's right to peacefully possess and enjoy the suit schedule mentioned property. In such circumstances, the suit has been filed. 9. In CS.No.847/2009, in the Written Statement filed by the Defendants 1 and 2, it is averred as follows:- a. The suit is liable to be dismissed in limini on the ground of res-judicata under Section 11 of CPC, since the subject matter, the parties and the property of this suit are squarely the same as in the suit filed by the 1st Defendant in CS.No.469/2008. The suit property was acquired by the father of these Defendants and the Plaintiff, Late K.P.Raghavan by way of purchase in the name of his wife, K.Nalini Raghavan, under the registered sale deed dated 29.11.1979. K.P.Raghavan had only arranged for allotment of the Plot No.28 in the name of his wife K.Nalini Raghavan by the vendor, the Adyar Cooperative House Site Society Limited, Chennai-28 who allotted the same by a resultion dated 11.10.1978 as confirmed on 11.11.1979. In pursuance to the above allotment, a sale deed was registered for a consideration of Rs.49,364.89/- by the Society in the name of K.Nalini Raghavan. The above consideration was paid by the Raghavan out of the funds from the account of M/s.Kandyan Enterprises promoted and run by him in the name of his wife as its proprietor as well as from his other resources. Together with the above plot the late Raghavan had also purchased another plot No.27 adjoining the suit plot No.28 in his name. The late Raghavan, while serving in M/s.Coates of India Limited, promoted a proprietary concern in May 1965 and registered the same under the name and style of M/s.Kandyan Enterprises at Chennai naming his wife Nalini Raghavan as its proprietor as he could not use his name during service, to carry on with the manufacturing and marketing of printing ink after his retirement with the help of his technical knowledge and experience gained in the service. b. Late K.P.Rahgavan had after retirement from service started doing the business in a small scale under the name and style of M/s.Kandyan Enterprises by buying and selling the printing Inks in the market with the help of his known customers. b. Late K.P.Rahgavan had after retirement from service started doing the business in a small scale under the name and style of M/s.Kandyan Enterprises by buying and selling the printing Inks in the market with the help of his known customers. After the business was doing well, he started a manufacturing unit in the name and style of National Printing Ink Co. with himself as proprietor in a shed at G3, Industrial Estate, Ambattur, Chennai in 1968 allotted by SIDCO for manufacturing printing inks. He was then manufacturing printing inks in M/s.National Printing Ink Company at Ambattur and selling them through the M/s.Kandyan Enterprises, Chennai both run by him. Whereas the mother of the Defendants and the Plaintiff was extending support in all his business as a wife. As the business was doing good, K.P.Raghavan had purchased two plots viz. Plot No.27, admeasuring about one ground and 187 sq.ft. in his name and Plot No.28 admeasuring about two grounds and 28 sq.ft. in the name of his wife, the mother of the Defendants and the Plaintiff under two registered sale deeds both dated 29.11.1979 out of the funds raised from the above said business, the saving lying in the name of his children and from external borrowings and started construction of a house in Plot No.28 for the family members to enjoy with equal rights. At one point of time, when construction of the house could not be continued further for want of funds, he had sold his other plot No.27 and invested the sale proceeds in the construction of the house. The bungalow was completed in 1984 and the entire family consisting of the Plaintiff and the Defendants and their father late K.P.Raghavan and Nalini Raghavan moved into the new house. The Defendants have been living all along in the said house since the day of its occupation till date. c. The concern M/s.National Printing Inks Company was subsequently converted into a Private Limited Company in 1989 under the name and style of M/s.Varnam Printing Inks P Limited with the Defendants 1 and 2 and the Plaintiff and their parents as Directors. Their father died on 23.1.1994 leaving behind him, the Defendants 1 and 2, the Plaintiff and their mother as his only legal heirs to succeed to all his movable and immovable properties. Their father died on 23.1.1994 leaving behind him, the Defendants 1 and 2, the Plaintiff and their mother as his only legal heirs to succeed to all his movable and immovable properties. After the demise of their father, their mother who is the eldest member of the family was made as the Managing Director of the Company M/s.Varnam Printing Inks (P) Limited. In fact, after the demise of their father, the business was put into lots of difficulties as the family had to meet the huge medical bills and also for the reason that the good profits they had been enjoying in the selling of their inks through their sister concern M/s.Kandyan Enterprises was lost due to the objection raised by the Central Excise Department under the Excise Rules that prohibited the sale of inks by M/s.Varnam Printing Inks (P) Limited to M/s.Kandyan Enterprises as the Managing Director and Proprietor of both the concerns were one and the same person i.e. the mother. However, the marketing arm of the business, M/s.Kandyan Enterprises was kept alive by transferring funds from the manufacturing concern M/s.Varnam Printing Inks (P) Limited for payment of statutory taxes, electricity bills and other expenses. The 1st Defendant, being the eldest male member of the family, was forced to look for new avenues to overcome the financial constraint and sustain the business and has eventually come out with an innovative idea to make changes in the existing course and pattern of the business and develop techniques for manufacture of inks required for the newspaper industry and has successfully converted the loss making business units into a more profitable one, with the good understanding and support of the other Directors. The Defendants 1 and 2 got married to Defendants 3 and 4 in 2004 and 2005 respectively and have a child each. While so, after a marriage proposal was finalized for the 2nd Defendant with one S.Sujithkumar, problems and misunderstanding crept into the family as well as in the business. The situation had become worsened further after the betrothal function of the Plaintiff that took place on 20.6.2007 and the behaviour and attitude of the Plaintiff and their mother were changed towards the Defendants 1 to 4. However, the Defendants has made all arrangements for conduct of her marriage on 24.10.2007. The situation had become worsened further after the betrothal function of the Plaintiff that took place on 20.6.2007 and the behaviour and attitude of the Plaintiff and their mother were changed towards the Defendants 1 to 4. However, the Defendants has made all arrangements for conduct of her marriage on 24.10.2007. Few days after the marriage, the Defendants were shocked to receive pressure from the Plaintiff and their mother to vacate the house, the suit property. Even after the Defendants 1 and 2 resisted the Plaintiff's threat to vacate the suit property and explained the legal position that they were legally entitled for 1/4th shares each in the suit property, the Plaintiff and the mother continued to make attempts to forcefully oust the Plaintiff and the Defendants 1 and 2 with their families out of the suit property. The 1st Defendant was therefore left with no other alternative than to demand for partition of the suit property. But, the Plaintiff and the mother refused to partition the suit property stating that the title deeds of the suit property stood in the name of the Plaintiff and that she was entitled to deal with the property according to her wish. Only then, the Defendants grew suspicious of a possible foul play by the Plaintiff and the mother with regard to the suit property and obtained encumbrance certificate dated 2.4.2008 from the Office of the Sub Registrar, Santhome. The Defendants were terribly shocked to note from the encumbrance certificate that a settlement deed dated 28.6.2007 was registered by their mother settling the suit property illegally in favour of the Plaintiff. Though their mother did not enjoy absolute right over the suit property, she, under the undue influence and insistence of the Plaintiff, had registered the settlement deed in favour of the Plaintiff. Their mother is not the exclusive owner of the suit property and she is only as an ostensible owner holding its title in her name in a fiduciary capacity for the benefit of the legal heirs of her late husband K.P.Raghavan. She is only a name lender and not a true and lawful owner and the sale deed of the suit property stands in her name ostensibly. Hence, a suit in CS.No.469/2008 was filed by the 1st Defendant herein for partition of the suit property. She is only a name lender and not a true and lawful owner and the sale deed of the suit property stands in her name ostensibly. Hence, a suit in CS.No.469/2008 was filed by the 1st Defendant herein for partition of the suit property. Their mother, after the marriage of the Plaintiff, was brain washed by the Plaintiff and was induced to go against the Defendants. As the Plaintiff and the mother had knowledge about the legal claim of the Defendants 1 and 2, they had made the attempt to defeat the legal claim of shares by the Defendants 1 and 2 in the suit property by registering an illegal settlement deed. This would be evident from the averment of the Plaintiff in paragraph 4 of the plaint, in the light of the grooming difference in the family, to avoid any dispute over the property after her life time, the mother settled the suit property on her own will and accord in favour of the Plaintiff. It is obvious that the Plaintiff was aware of the genuine claims and legal rights of the Defendants 1 and 2 in the property and only in anticipation of a claim of share in the property by the Defendants 1 and 2 the settlement deed was registered illegally behind the back of the Defendants 1 and 2. It is agonizing that the Plaintiff, after extracting all the cooperation, support and help from the Defendants 1 and 2 for the celebration of her betrothal function on 20.6.2007 had stealthily arranged for the registration of the settlement of the suit property immediately after the betrothal function. Further, while enjoying all the support and help affectionately extended by the Defendants for the celebration of her wedding function held on 2.10.2007, the Plaintiff remained right lipped with regard to the registration of the settlement of the suit property in her favour. d. The mutation of records in favour of the Plaintiff, payment of tax by her etc. as stated by her would have no impact on the legal claim of these Defendants in respect of the suit property made in the suit in CS.No.469/2008 nor would bind them in any manner. d. The mutation of records in favour of the Plaintiff, payment of tax by her etc. as stated by her would have no impact on the legal claim of these Defendants in respect of the suit property made in the suit in CS.No.469/2008 nor would bind them in any manner. The allegation contained in paragraph 5 that the Defendants 1 and 2 started acting in a manner detrimental to the interest of the Plaintiff and her mother in the business wherein the Plaintiff and the mother were major share holders are denied as false. As a matter of fact, on 9.2.2008, when the 1st Defendant left for Indore to see the newly born baby and the wife of the 2nd Defendant, the Plaintiff and the mother brought a self cheque for Rs.2 lakhs and tried to draw the money from the Bank and instructed the Manager of the Bank to close the overdraft account without the knowledge of the Defendants. The Bank Manager, who had never seen both of them earlier, called the 2nd Defendant who used to represent M/s.Kandyan Enterprises pertaining to banking and the 2nd Defendant was surprised to see both his mother and sister arguing with the Senior Manager as to how payment could be denied to them, their mother being its Proprietor. The Plaintiff and the mother took the issue seriously and shouted at the Senior Manager of the Bank threatening to take legal action against him. They also sent a letter to the Bank Manager to freeze the account and to stall all the business of M/s.Kandyan Enterprises. After the above incident, the Plaintiff and the mother became ferocious and resorted to all intimidating tactics for the ouster of the Defendants out of the suit property. It is a settled position of law that the person who was not a party to a registered document can ignore the same and is not bound to challenge it. Hence, the 1st Defendant filed the suit for partition claiming his right in respect of the suit property ignoring the settlement deed. It is a settled position of law that the person who was not a party to a registered document can ignore the same and is not bound to challenge it. Hence, the 1st Defendant filed the suit for partition claiming his right in respect of the suit property ignoring the settlement deed. Further, it is significant to note that the Plaintiff has given an undertaking to this court in CS.No.469/2008 when the applications seeking to restrain her and the mother from ousting the Defendants and from alienating the suit property came up for hearing that she would not resort to any attempt for the ouster of the Defendants and their family and to alilenate the suit property pending disposal of the above suit. Hence, the filing of the present suit by the Plaintiff cannot be sustained and her plea for vacating the Defendants does not merit any consideration while the adjudication of the issue with regard to the claim for partition of the suit property by the 1st Defendant in CS.No.469/2008 is pending on the file of this court. The Plaintiff is not the owner of the suit property as claimed by her in paragraph 7 since the mother is only a benami of their father who purchased the suit property in her name. Therefore, their mother did not enjoy absolute right to own the suit property so as to entitle her to execute a settlement deed. It is false to state that the Defendants 1 and 2 at any point of time left the suit property after the execution of the settlement deed and that just before filing of the suit in CS.No.469/2008 forcibly entered the suit property and are in forcible occupation in two rooms. The Defendants 1 and 2 have not left the house at any time and have been dwelling in the house since the date of their occupation of the same in 1984. It is false that the Defendants 1 and 2 are not taking care of their mother. Only the Plaintiff has been poisoning her mind and blocking the way of cordial relationship between the mother and the Defendants. It is false that the Defendants 1 and 2 are not taking care of their mother. Only the Plaintiff has been poisoning her mind and blocking the way of cordial relationship between the mother and the Defendants. As a matter of fact, the Defendants sent a letter dated 11.7.2009 expressing their love and affection and readiness to support and maintain her despite receipt of letter dated 23.5.2009 from their mother sent at the instigation of the Plaintiff, requesting these Defendants not to remit any amount in her account. In fact, several false complaints were given by the Plaintiff against the Defendants with the police, but as their complaints turned out to be untrue after enquiry, the police condemned the Plaintiff and sent them away. On the contrary, only the Plaintiff often indulged in harassment and ill treatment of the 3rd Defendant who is the wife of the 1st Defendant while she was alone after the Defendants left for office. With regard to the allegation that the 1st Defendant has preferred a complaint with the electricity board, it is submitted that as the Plaintiff has committed the mischief by changing the EB Card from the name of the 1st Defendant without his knowledge or consent, the 1st Defendant sent a letter dated 18.9.2009 to EB making a genuine request that the illegal effecting of change of name in the service connection No.135:38:45 in favour of Plaintiff without his knowledge be transferred to his name. The allegation that the Defendants 3 and 4 in order to chase out the Plaintiff and her mother from the premises had indulged in the acts, creating disharmony in the family and in the premises, the Defendants 3 and 4 is utterly false. The wives of the Defendants 1 and 2 were threatened and assaulted by the Plaintiff in order to chase them out of the house since the Plaintiff was upset and afraid of the suit filed by the 1st Defendant in CS.No.469/2008 claiming his share in the suit property. It is not true that the water taps were left open during night and leaving the house open to make it unsafe for Plaintiff and her mother to live. It is false to state they were creating mess in the kitchen and garden by throwing waste and dumping in front of the room. It is not true that the water taps were left open during night and leaving the house open to make it unsafe for Plaintiff and her mother to live. It is false to state they were creating mess in the kitchen and garden by throwing waste and dumping in front of the room. e. The property tax, water tax were being paid by the family concern M/s.Varnam Printing Inks (P) Limited and the same could not be continued as the Plaintiff and her mother left their office abruptly, shirking their responsibilities as finance directors and the MD of the Company and ruined the Company. It is strange that while alleging that the Defendants enjoy influence with the police, the Plaintiff has also stated that they were let out with an apology. It is utterly false that the Plaintiff had demanded the Defendants to vacate and hand over possession of the property and pay a rent of Rs.20,000/- per month. If any such illegal demand the Plaintiff has been entertaining in her imagination she has to then blame herself as she could not make such a claim as against the Defendants 1 and 2 who are the co-owners of the suit property. The Defendants could never be expected to cause loss or damage to their own property. It is a lie that the Defendants had acquired interest in respect of another property and had shifted most of the things and that only with intent to harass and to make an illegal gain and to cause damage to the property and cause hardship and loss to the Plaintiff, they remain in the house. As a matter of fact, the Defendants have been continuously living in the suit property which was acquired by their father and left to the Defendants 1 and 2 and the Plaintiff and the mother to live peacefully enjoying equal shares. The Defendants have not acquired any property at any place as alleged by the Plaintiff and they have the only house of their father, the suit property to live. The Defendants 1 and 2 are entitled for 1/4th share each in the suit property. The Defendants have not acquired any property at any place as alleged by the Plaintiff and they have the only house of their father, the suit property to live. The Defendants 1 and 2 are entitled for 1/4th share each in the suit property. The mother who is only an ostensible owner and holding the title of the suit property in her fiduciary capacity cannot claim absolute and exclusive ownership of the property so as to deal with it in any manner as she likes and hence, the settlement deed dated 28.06.2007 executed by her in favour of the Plaintiff without the knowledge of the Defendants 1 and 2 is not legally valid and would not bind them in any manner. Therefore, the Plaintiff or her mother has no right to seek their ousting from the suit property. 10. In CS.No.847/2009, in the Written Statement filed by the 3rd Defendant, it is averred as follows:- All the allegations contained in the plaint are false, except those that are specifically stated hereunder. The 3rd Defendant was married to the 1st Defendant on 26.1.2004 and has been living with her husband since marriage in his marital home, the suit property. There was cordial relationship between the members of the family of her husband which included the mother, sister and brother of the 1st Defendant and Defendants 3 and 4. But, after the finalization of marriage proposal of the Plaintiff, the Plaintiff left her work in the family concern, M/s.Varnam Printing Company P Limited and remained in the house. From then onwards the problems started with the Plaintiff making accusations against the 3rd Defendant, her husband, his brother and sister in law, the 4th Defendant and the mother in law has also started showing hatredness against them. The Plaintiff used to pick up frequent quarrels with the 3rd Defendant and resorted to abusing and insulting her that she did not bring dowry, etc. from her parents. Because of the advice of her husband the 3rd Defendant has not chosen to file any criminal complaint and proceed against the Plaintiff. It is the duty of the 3rd Defendant to remain and lead a peaceful marital life with the 1st Defendant wherever he lives and therefore, seeking eviction against the 3rd Defendant is not just and proper in respect of the joint family property of her husband. It is the duty of the 3rd Defendant to remain and lead a peaceful marital life with the 1st Defendant wherever he lives and therefore, seeking eviction against the 3rd Defendant is not just and proper in respect of the joint family property of her husband. The Plaintiff has no right to seek eviction of the 3rd Defendant from the marital home of the 1st Defendant. In such circumstances, the suit is liable to be dismissed. 11. In CS.No.469/2008, the following issues were framed for determination:- Whether the suit schedule mentioned property is a joint family property purchased by the Plaintiffs' father, benami in the name of the first Defendant? Whether the Plaintiff is entitled for partition or separate possession of the suit property? If so, whether the Plaintiff is entitled for 1/4th share as claimed in the plaint? To what relief the Plaintiff is entitled to? 12. In CS.No.847/2009, the following issues were framed for determination:- Whether the suit is bad for misjoinder of necessary party 3rd Defendant? Whether the Plaintiff is entitled to recovery of possession and mesne profits as prayed for in the plaint? Whether the Plaintiff is entitled to the injunction as prayed for in the Plaintiff? To what other relief the Plaintiff is entitled to? 13. Common oral and documentary evidence was recorded, viz. the plaintiff in CS.No.469/2008 was examined as PW.1 and Exs.P1 to P20 were marked. On the side of the Defendants in CS.No.469/2008, the DW.1 to DW.4 were examined and Ex.D1 to D15 have been marked. 14. This court heard the learned counsel on either side and also perused materials on record. 15. CS.No.469/2008 is filed for partition of Schedule I and II properties. For understanding the facts of this case in a better perspective, a small pedigree table is necessary to be given. The 1st Defendant Nalini Raghavan in CS.No.469/2008 is the wife of Late K.P.Ragavan, the father of the Defendants 2 and 3 and the Plaintiff in CS.No.449/2008. The Plaintiff is the eldest son, the 2nd Defendant is the daughter and the 3rd Defendant is their younger son. 16. The suit in CS.No.847/2009 is filed by the 2nd Defendant, daughter of Nalini Raghavan and Late K.P.Ragavan for possession and mesne profits in respect of a portion of the Schedule I property described as Chennai Property by virtue of deed of settlement dated 28.6.2007. 16. The suit in CS.No.847/2009 is filed by the 2nd Defendant, daughter of Nalini Raghavan and Late K.P.Ragavan for possession and mesne profits in respect of a portion of the Schedule I property described as Chennai Property by virtue of deed of settlement dated 28.6.2007. In the said suit, apart from her brothers, namely, the Plaintiff and the 3rd Defendant in CS.No.469/2008, the wife of the 3rd Defendant and Shika were arrayed as parties. However, claim against the 4th Defendant Shika was given up. The suit Schedule II property is described as Ambattur property. Common evidence was recorded in both the suits. 17. Issue Nos.(1) to (4) in CS.No.469/2008:- In so far as the suit schedule II property (Ambattur property) is concerned, all the parties admit that the property was purchased by Late K.P.Raghavan in Ex.D10, who died intestate on 23.1.1994. The legal heirship certificateEx.P11 shows that they are the only heirs to K.P.Raghavan. The Division Bench of this Court in OSA.No.402/2012observed that in view of the parties agreeing for partitioning, the Ambattur Estate property which is available for partition, a decree on admission could be passed by including the said property in the suit. The Plaintiff, PW.1 has admitted that all the parties in CS.No.469/2008 have equal share in the suit schedule II property (Ambattur Estate property) during his cross examination. Therefore, a preliminary decree for partition can be passed in respect of suit schedule II property (Ambattur Estate property) allotting 1/4th share each to the Plaintiff and each of the Defendants in CS.No.469/2008. 18. In so far as the Chennai property is concerned, the main point for consideration is whether it is a case of benami as asserted by the Plaintiff and supported by the third Defendant. 19. The Plaintiff seeks partition of the suit schedule I property (Chennai property) on the ground of benami that his father K.P.Raghavan was the real owner, who had acquired the said property benami in the name of his wife, the 1st Defendant herein, out of the income derived from both the business concerns promoted and run by him. Admittedly, M/s.Kandyan Enterprises is in the name of his wife, the 1st Defendant herein who is the Proprietrix of the said Company. The other Company, namely, M/s.National Printing Inks Co. was in his name and was run by him. The printing inks were manufactured in the National Printing Ink Co. Admittedly, M/s.Kandyan Enterprises is in the name of his wife, the 1st Defendant herein who is the Proprietrix of the said Company. The other Company, namely, M/s.National Printing Inks Co. was in his name and was run by him. The printing inks were manufactured in the National Printing Ink Co. and sold through the Kandyan Enterprises. 20. Before we advert to the evidence placed on record, it may be useful to take note of the legal aspects relating to Benami theory. In the course of arguments, an interesting question was raised by the learned counsel appearing for the 1st Defendant that even as per the case of the Plaintiff, it is the husband of the 1st Defendant who supplied the funds for purchase of the property in the name of the 1st Defendant and therefore, only the husband of the 1st Defendant is entitled to challenge the right of the exclusive title of the 1st Defendant and not the sons or daughters under the provisions of Benami Transaction Prohibition Act, 1988 (herein after referred to as Benami Act). I am unable to countenance the said arguments advanced by the learned counsel for the 1st Defendant. It is relevant to refer to the provisions of Section 3 and 4 of the Benami Act as under:- “Section 3:- Prohibition of benami transactions:- (1) No person shall enter into any benami transaction. (2) Nothing in sub section (1) shall apply to- (a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter; (b) the securities held by a - (i) depository as registered owner under sub section (1) of section 10 of the Depositories Act, 1996. (ii) participant as an agent or of a depository. Explanation:- The expressions “depository” and “Participants shall have the meanings respectively assigned to them in clauses (e) and (g) of sub section(1) of Section 2 of the Depositories Act, 1996. (3) Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. (4) Notwithstanding anything contained in the Code of Criminal Procedure 1973 (2 of 1974) an offence under this section shall be non cognizable and bailable. (3) Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. (4) Notwithstanding anything contained in the Code of Criminal Procedure 1973 (2 of 1974) an offence under this section shall be non cognizable and bailable. Section 4:- Prohibition of the right to recover property held benami:- (1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whetheragainst the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. (3) Nothing in this section shall apply- (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity.” 21. Under Section 3 of the Benami Act, it is permissible for a person to purchase property in the name of his wife or unmarried daughter and such purchase is not hit by the provisions of the Act. However, there is presumption that the purchase made in the name of the wife or unmarried daughter is to their benefit. The person setting up adverse claim is entitled to rebut the presumption. If he succeeds in his attempt and is able to show by cogent and clear evidence that the property ostensibly standing in the name of the wife or unmarried daughter is not made for their personal exclusive benefit quite naturally the property has to fall back to the common stock available for inheritance by succession. If he succeeds in his attempt and is able to show by cogent and clear evidence that the property ostensibly standing in the name of the wife or unmarried daughter is not made for their personal exclusive benefit quite naturally the property has to fall back to the common stock available for inheritance by succession. It is needless to point that to rebut the presumption ever, to answer the legal prepositions, it is necessary that the facts are not only to be pleaded, but also proved. 22. I am unable to agree with the contention that Section 4(1) and (2) of the Act could be invoked only in respect of benami transactions exempted under Section 4(3) and that they have no relevance or application to Section 3(2) of the Act, in view of the legal provisions of the Act that both the exemption provisions of the Act under Section 3(2) and 4 (3) recognize the benami transactions of the persons exempted thereunder and the benami transactions exempted by others are prohibited to be contested either by filing of a suit or taking a defence under Section 4(1) and (2) of the Act, which would mean that the persons exempted under the provisions of the Act can contest and prove benami in respect of the purchase of property made by them thereunder. 23. The above legal position is well settled in the following decisions:- 1. Nanda Kishore Mehra Vs. Susila Mehra (1995-11-CTC-356). 2. Ouseph Chauko and another Vs. Raman Nair Raghavan Nair (AIR-1989-Ker-317). 24. In the aforesaid decision, the Kerala High Court has held as follows:- “35. Sections 3 and 4 of the Act have to be read and understood together. They are not disjunctive provisions in a comprehensive legislation intended to prohibit benami transactions. Both Sections 3 and 4 are complementary to each other to achieve the same object. While S.3 prohibits the creation of any “benami transaction”. S.4 prevents any suit, claim or action to enforce any right in respect of any property “held benami”. It is only when any right in respect of a property “held benami” is sought to be enforced, in any suit or claim that S.4 is attracted. “Hold”, according to Black's Dictionary means” to possess in virtue of a lawful title as in the expression, common in grants, “to have and to hold”; to possess; to occupy; to be in possession and administration of”. “Hold”, according to Black's Dictionary means” to possess in virtue of a lawful title as in the expression, common in grants, “to have and to hold”; to possess; to occupy; to be in possession and administration of”. In the context and setting of S.4, the word “held” has to be understood as “possessed or occupied”. If the possession or occupation is not benami, S.4 can have no application. An intended benami does not confer even pretended rights. A benami transaction where the property is so held as benami is the subject of the statutory prohibition under Sections 3 and 4. The definition of “benami transaction” is in extricably connected with all the provisions of the Act, as the Act is intended “to prohibit benami transactions and the right to recover property held benami and for matters connected therewith or incidental thereto.” 25. It is also relevant to note that in Rebli Devi Vs. Ram Dutt and another (1997-11-SCC-714), the defence taken by the son that the property was purchased by his father Ujagar Lal in the name of Ram Dutt's mother Rebli Devi benami and the entire consideration was paid by his father and that his father was the real owner and after his death the property devolved on his wife and other children was considered by the Honourable Supreme Court and it could be inferred from the said judgement that the defence under Section 4 of the Act is permissible in such case. 26. Similarly in Binarani Paul Vs. Pratima Ghosh and others (2007-6-SCC-100) the Honourable Supreme Court considered the plea of defence made by son claiming the purchase of property by his father in the name of his mother in a benami transaction under Section 3(2) of the Act and the suit was disposed of on merits. 27. Therefore, all the cases referred to above would undoubtedly show that it is permissible for a person setting up an adverse claim to rebut the presumption and the contention that it is the husband or father alone would have the right to challenge or impeach the exclusive title of the wife or daughter is not tenable. 28. The plaintiff's case is that the husband of the 1st Defendant is the real owner of the Chennai property and that he was running both the business concerns, namely, M/s.Kandyan Enterprises and M/s.National Printing Ink Co. 28. The plaintiff's case is that the husband of the 1st Defendant is the real owner of the Chennai property and that he was running both the business concerns, namely, M/s.Kandyan Enterprises and M/s.National Printing Ink Co. and consideration was paid by him for purchase of the said property from the income derived from the said business concerns and construction of building in the said property was made by him by utilizing the sale proceeds derived from the sale of his other plot no.27 as well as his personal savings and other loans and that the self acquired suit schedule I property of the Plaintiff's father after his death has come into the hands of the Plaintiff and the Defendants as joint family property. 29. It is by now well settled that the burden is on the person who sets up the case of benami, in the instant case, the Plaintiff and the 3rd Defendant and that if the burden is not discharged, the ostensible title will prevail. To substantiate a case of benami, the judicial pronouncements have laid down several factors to be taken into consideration and on an over all assessment of such factors the court to render a finding. In Bhim singh Vs Khan Singh (AIR-1980-SC-727) it has been held on this aspect as follows:- “The Principle governing the determination of the question whether a transfer is a benami transaction or not may be summed up thus: (1) The burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction; (2) if it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money unless there is evidence to the contrary; (3) the true character of the transaction is governed by the intention of the person who has contributed the purchase money and (4) the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motives governing their action in bringing about the transaction and their subsequent conduct etc. 30. 30. It is clear that the burden of proving that a particular transaction is Benami always rests on the person asserting it to be so. It is also clear in mind that the essence of benami is an intention of a particular party or parties concerned and not often such intention is shrouded in a thick veil which cannot be easily pierced through. But, such difficulties do not relieve the person asserting transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises as a substitute for proof. 31. The specific averments in the plaint are to the effect that the sale deed Ex.P8=Ex.D1 was executed in favour of the 1st Defendant by her husband benami, for the benefit of the family and that the consideration came from R.K.Raghavan the father of the Plaintiff. Admittedly, the sale deed stand in the name of the 1st Defendant. On deciding whether a particular transaction is benami or not, the source of money always will be a very valuable test. There is no whisper whatsoever in the sale deed that the consideration was paid by the husband of the 1st Defendant. The Plaintiff examined as PW.1 and the 3rd Defendant examined as DW.2 have admitted in their evidence that there is no proof to show that their father paid or provided the consideration for purchase of the property. PW.1's evidence indicated that the sale consideration for Ex.P8 was paid by way of Company cheque namely M/s.Kandyan Enterprises. It is admitted by him that after the completion of construction over the suit property, patta for the building as well as land was issued in the name of the 1st Defendant. 32. According to the Plaintiff and the 3rd Defendant, their father was working in M/s.Coates of India Limited, Calcutta and he promoted a proprietary concern M/s.Kandyan Enterprises in May 1965 in the name of the 1st Defendant as he was in the last leg of his service. It is stated that with the knowledge and experience he had acquired during his service in the Company started contacting all his known business customers soliciting their support for the proposed business and further he commenced the business in a small scale after his relieving of from service by investing his provident fund and other monetary benefits. It is stated that with the knowledge and experience he had acquired during his service in the Company started contacting all his known business customers soliciting their support for the proposed business and further he commenced the business in a small scale after his relieving of from service by investing his provident fund and other monetary benefits. The Plaintiff has marked Ex.P1 to Ex.P7 to prove that the Plaintiff's father had the intention and desire to promote a business concern. Ex.P1 to Ex.P7 were marked subject to objection on the ground that PW.1 is neither the author of the document nor the recipient of the same. Admittedly, PW.1 was hardly 4 years old when those letters were written by his father. He has admitted in his cross examination that he had no personal knowledge of the averments contained in his proof affidavit which pertains to the floating of business by his father. Though DW.1 (1st Defendant) admitted that Ex.P1 and Ex.P3 to Ex.P6 were written by her husband for business purposes, but she has denied the fact that she was only a name lender and the business was run by her husband. 33. Ex.P1 to Ex.P7 shows the intention of the Plaintiff's father to do independent business and the efforts put in by him in the negotiation of prices for getting inks with the customers for the proposed business. The learned counsel for the Plaintiff, referring to Ex.P3 letter dated 13.10.1965 wherein it is recited that the 1st Defendant was 6 months pregnant in October 1965 at the time when business was started and was frail and weak, submitted that she could have hardly started a business much less entertained any such thought of promoting a business of her own. The learned counsel for the Plaintiff vehemently submitted that those documents pertaining to the business were made in the course of business which are relevant and admissible in accordance with Section 32 of the Evidence Act to establish the fact that the business of M/s.Kandyan Enterprises was started by the Plaintiff's father and its income formed part of the source of acquisition of the Chennai property. Incidentally, the learned counsel for the Plaintiff and the 3rd Defendant referred to Ex.D7 marked on the side of the 3rd Defendant to show that the Plaintiff's father was assessed for the provident fund and would submit that the same was invested in the above said business. 34. From a perusal of Ex.P1 to Ex.P9, the possible inference is that the Plaintiff's father intended to start business, but it cannot be inferred that consideration was paid by the Plaintiff's father for purchase of the property. The meticulous repeated reading of the letter does not indicate anywhere that his wife was merely a name lender and the business is only run by him. By the contents of the letter, it is impermissible to read and infer more than what it states. It is not in dispute that from the year 1965 to till date the 1st Defendant is the proprietrix of M/s.Kandyan Enterprises. Even after the Plaintiff's father left the services, the business of M/s.Kandyan Enterprises was with the 1st Defendant and he never intended to carry on the said business in his name that is even after starting the business M/s.National Printing Ink Co. There is no evidence to show that the 1st Defendant was only a nominal owner whereas the Plaintiff's father alone was the real owner of the said business. No motive is attributed for holding out the 1st Defendant as the owner of the business even after the Plaintiff's father retired from his services. 35. The 1st Defendant has paid the sale consideration by way of Company cheque namely M/s.Kandyan Enterprises. There is no evidence produced to show that the sale consideration was paid by the Plaintiff's father. Neither there is evidence to show that out of the deposits which Plaintiff'' father held in his name and in the names of the Defendants 2 and 3, the property was purchased. PW.1 has admitted the same in his cross-examination. It is also admitted that the 1st Defendant is an income tax assessee. In fact, DW.3, auditor of their family admitted that the 1st Defendant had income and he had audited the said income and she also filed Income Tax Returns from 1965 onwards. DW.1 (1st Defendant) has stated in her evidence that she is an income tax assessee ever since mid 1960's and had sufficient means of her own and the same remains unchallenged. 36. DW.1 (1st Defendant) has stated in her evidence that she is an income tax assessee ever since mid 1960's and had sufficient means of her own and the same remains unchallenged. 36. At this juncture, it is relevant to refer to the evidence of DW.3, V.Pichaikutty who admittedly is the auditor of both the Plaintiff and the 1st Defendant and her husband. He has admitted that the 1st Defendant was assessed to income tax as a proprietrix of M/s.Kandyan Enterprises. He has spoken to regarding Ex.D3 and has stated that the same is self explanatory of the gross income of the 1st Defendant for the years ended 31.3.1978, 31.3.1979 and 31.3.1980. Like wise, Ex.D4 certificate is also self explanatory of the gross wealth of the 1st Defendant as on 31.3.1978, 31.3.1979 and 31.3.1980. The 2nd Defendant had instituted a Company petition in CP.No.10/ 2009 before the Company Law Board regarding certain other business and DW.3 in the said case has admitted that the 1st Defendant had income and assessed to Income Tax. 37. The recitals in the document, under which the suit property was purchased, clearly show that the consideration was paid by the 1st Defendant and the source of income was from M/s.Kandyan Enterprises the business run by her. In order to rebut the said presumption, the Plaintiff has to adduce legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party concerned and such intention is shrouded in a thick veil which cannot be easily pierced through. But, such difficulties do not relieve the person asserting the transaction to be benami or any part of the serious onus that rests on him nor justify the acceptance of mere conjectures or surmises as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation and the person expressly shown as the purchaser in the deed starts with the initial presumption in her favour that the apparent state of affairs is the real state of affairs. 38. In the instant case, the 1st Defendant was a proprietrix of a business and admittedly she was getting income from the said business. The business also started in her family name 'Kandyan”. 38. In the instant case, the 1st Defendant was a proprietrix of a business and admittedly she was getting income from the said business. The business also started in her family name 'Kandyan”. It has not been proved that any income from the business run by her husband was utilized. In fact there is a specific recital that the Company cheque namely M/s.Kandyan Enterprises was paid towards the sale consideration. In view of the experience gained by her husband, he may have helped the 1st Defendant in managing the business, but from the mere fact that her husband was helping her in managing or running the business, inference that purchase was benami could not be drawn. The evidence clearly indicated that the 1st Defendant was in a position to purchase the property with her own funds. She has obtained loan from LIC for the purpose of construction of the house in the said property. Even assuming some money was contributed by her husband in putting up construction of house, it does not by itself conclusively establish the fact of benami. 39. It was held by the Privy Council in Seth Manik Lal Mansukhbai Vs. Raja Bijoy Singh Dudhoria (AIR-1921-PC-69) that the burden of proof lies on the party assailing transaction as benami, although the circumstances may be suspicious. In such cases, it is essential to take care that the decisions of the courts rests not upon suspicion, but upon legal grounds, established by legal testimony. In cases of this character, the determination of the question depends not only on direct oral evidence, but also upon circumstances and surrounding of the case concerned. It has been held repeatedly that the burden of proof lies heavily on the person who claims against the tenor of the deed, that is, the alleged beneficiary, to show that the ostensible vendee was a mere name lender and the property was in fact purchased only for his benefit. Such burden would be discharged by satisfying the well known criteria viz. (1) source of purchase money relating to the transaction, (2) possession of the property, (3) the position of the parties and their relationship to one another, (4) the circumstances, pecuniary or otherwise, of the alleged transfer, (5) the motive for transaction, (6) the custody and production of title deeds and (7) the previous and subsequent conduct of the parties. (1) source of purchase money relating to the transaction, (2) possession of the property, (3) the position of the parties and their relationship to one another, (4) the circumstances, pecuniary or otherwise, of the alleged transfer, (5) the motive for transaction, (6) the custody and production of title deeds and (7) the previous and subsequent conduct of the parties. Each of above said circumstances, taken by itself is of no particular value and affords no conclusive proof of the intention to transfer the ownership from one person to the other. But, a combination of some or all of them and a proper weighing and appreciation of their value would go a long way towards indicating whether the ownership has been really transferred or where the real title lies. In every benami transaction, the intention of the parties is the essence. Therefore, the true test to determine whether the transaction is benami or not is to look to the intention of the parties viz. whether it was intended to operate as such or whether it was only meant to be colourable. 40. From the principles laid down in the decisions, it is clear that the person who impugns the apparent character of the transaction, viz. the Plaintiff herein must show by letting in legal evidence establishing that the transaction in question is a benami one and the issue cannot be disposed of by a mere conjecture or suspicion as to the various circumstances surrounding the transaction. Section 101 of the Evidence Act provides that anyone, who desires a court to give judgement as to any legal right or liability dependant on the existence of facts which he asserts, must prove that those facts exist. The evidence must be reliable and acceptable, compelling the court to take a view contrary to the recitals in the impugned documents. 41. It has to be noted that the 1st Defendant being a woman had taken the assistance of her husband in putting up construction and therefore, it would not in any way indicate that the 1st Defendant was only a benamidar. The 1st Defendant in order to put up construction over the vacant plot had availed a loan by mortgaging the said property in favour of LIC under Ex.D2 dated 19.3.1981. Ex.D5 series are some of the receipts for repayment of the loan availed from LIC by the 1st Defendant. The 1st Defendant in order to put up construction over the vacant plot had availed a loan by mortgaging the said property in favour of LIC under Ex.D2 dated 19.3.1981. Ex.D5 series are some of the receipts for repayment of the loan availed from LIC by the 1st Defendant. Ex.D6 dated 13.4.1982 is the patta standing in the name of the 1st Defendant. It is significant to refer to Ex.D11 produced by the 3rd Defendant. This documents clearly exhibits that the property has been purchased by the 1st Defendant from her own funds and the funds for construction of the house has been obtained from LIC as loan and also from one V.Kothai, who is none other than the sister of DW.3 Pitchaikutty, the auditor of R.K.raghavan's family. 42. On analyse of evidence adduced, I am of the clear view that the Plaintiff and the 3rd Defendant failed to discharge the burden that the consideration for purchase of the property was paid by the father of the Plaintiff and the 3rd Defendant. On the basis of the admission made by the Plaintiff and the 3rd Defendant that they have not produced any evidence before this court to show that sale consideration under Ex.P8 was paid by their father and that the LIC loan was obtained by the 1st Defendant for putting up the construction over the suit property, I have to reiterate that the burden had not been discharged. 43. The pleadings of the Plaintiff is also in consistent. It is the case of the Plaintiff that K.P.Raghavan contributed for the purchase of the Chennai property thus indicating that he paid the consideration from his own funds. However, at another stage, the Plaintiff states that though the 1st Defendant was the Proprietor of M/s.Kandyan Enterprises, it was run by her husband and funds of this business were utilized for purchase of the property. 44. It is not in dispute that the 1st Defendant was the Proprietrix of M/s.Kandyan Enterprises. Even according to the Plaintiff, the funds for the purchase of the property had come from M/s.Kandyan Enterprises. If M/s.Kandyan Enterprises is the business of K.P.Raghavan, then there is no necessity for the business be named after the family name of the 1st Defendant. 44. It is not in dispute that the 1st Defendant was the Proprietrix of M/s.Kandyan Enterprises. Even according to the Plaintiff, the funds for the purchase of the property had come from M/s.Kandyan Enterprises. If M/s.Kandyan Enterprises is the business of K.P.Raghavan, then there is no necessity for the business be named after the family name of the 1st Defendant. It is settled law that a sole proprietary concern has no independent legal entity and its identity remains inseparable from its proprietor as held by the Honourable Supreme Court in Milind Shripad Chandurkar Vs. Kalim M.Khan (2011-4-SCC-275). Therefore, the identity of M/s.Kandyan Enterprises is nothing, but that of the 1st Defendant. 45. It is the case of the Plaintiff that K.P.Raghavan sold the other plot which was purchased in his name and contributed for construction of the building in Chennai property in the name of the 1st Defendant. No document has been produced to show that the sale proceeds of Plot No.27 was utilized in the construction of the building. It is the evidence of DW.3, Pitchai Kutti that the 1st Defendant had income from her business and she was an income tax assessee from 1965 onwards. His evidence further discloses that K.P.Raghavan did not have any Hindu Undivided Family (HUF) account assessed to tax. Apart from the property registered in her name, mutation entry have been made in her name and she has been paying the house tax. The above conspectus will undoubtedly establish that apart from the Plaintiff and the 3rd Defendant failing to discharge their burden, the 1st Defendant has satisfactorily established that she is not the benamidar, but is the real owner. 46. There is no pleading or evidence from the Plaintiff about the motive for the alleged benami transaction. In the instant case, it is very evident that K.P.Raghavan had no liability and the Plaintiff has failed to establish that there was motive for entering into a benami transaction. In this case, the 1st Defendant did have source of income. If she had no source of income, it could have been taken that this transaction was financed by the husband intending that he will be the real owner of this property and the wife would continue to be the benami owner of the property. In this case, the 1st Defendant did have source of income. If she had no source of income, it could have been taken that this transaction was financed by the husband intending that he will be the real owner of this property and the wife would continue to be the benami owner of the property. There is absolutely no motive why should K.P.Raghavan have constituted his wife as benami owner of the property and himself stayed in the back screen. It cannot be said that he had done so because he was in service and had to take permission of the management. He was not in Government service. This property was purchased long after his service. It was submitted by the learned counsel for the Plaintiff that each person was not given more than one plot by the Housing Society and that necessitated K.P.Raghavan to purchase the plot in question in the name of his wife. This is not the plea made in the plaint. He has not disclosed his intention at any point of time that the Plot No.28 though purchased in the name of his wife, but he intended to be the real owner. He had not asserted his title over the suit property till his death and only the Plaintiff and the 3rd Defendant had set up a plea of benami for the first time in this suit. The absence of motive is a strong indicator against the case of benami. 47. It was submitted by the learned counsel for the Plaintiff that after the purchase of this house, K.P.Raghavan and other family member were in possession and even after his demise, the Plaintiff and the 3rd Defendant continued to be in possession of the house. The Plaintiff and the 3rd Defendant are not strangers. If the 1st Defendant had allowed them to stay and the Plaintiff had paid telephone bills, that does not mean that they are in possession of this house under some claim or right. Their occupation of the house cannot lead to court to infer that they are in possession, as this house was purchased by their father. No inference can be drawn from Ex.P16 Electricity Consumption Card and Ex.P18 telephone bills, because it is common knowledge that the 1st Defendant had permitted the Plaintiff and the 3rd Defendant to stay with her, since they are her sons. No inference can be drawn from Ex.P16 Electricity Consumption Card and Ex.P18 telephone bills, because it is common knowledge that the 1st Defendant had permitted the Plaintiff and the 3rd Defendant to stay with her, since they are her sons. The payment of electricity consumption charges or telephone bill does not advance the case of the Plaintiff in any manner. 48. The 1st Defendant has been in possession since her purchase and custody of the title deeds until the execution of settlement deed Ex.P13 dated 28.6.2007 in favour of her daughter, the 2nd Defendant herein. The 2nd Defendant is now in possession and custody of the title deeds. Therefore, even the custody of the title deeds would unerringly prove that the 1st Defendant is the real owner of the property. 49. Even with regard to the previous and subsequent conduct, the following facts would clearly show that the allegation of the Plaintiff that the 1st Defendant is a benamidar is not acceptable. It has to be immediately pointed out that the husband of the 1st Defendant had witnessed the execution of the sale deed in Ex.P8/Ex.D1 under which the 1st Defendant had purchased the property. He had stood as a guarantor in the mortgage deed in Ex.D2 wherein the title of the 1st Defendant has been asserted. He has not during his life time ever claimed title to this property. It may not be out of place to point out that the 1st Defendant had obtained patta for this property in her name and was assessed to tax only during the life time of K.P.Raghavan. 50. The learned counsel for the 1st Defendant submitted that there is no evidence placed on record by the Plaintiff to show that the Plaintiff's father had ever made a declaration with the Chief Commissioner of Income Tax as required under Section 281A of the Income Tax Act, as it stood then in respect of the said transaction. The learned counsel would contend that the absence of any such declaration by K.P.Raghavan would only disprove the case of the Plaintiff. There is every force in the said contention of the Plaintiff. Section 7 of the Benami Act repealed Section 281A of the Income Tax Act. The learned counsel would contend that the absence of any such declaration by K.P.Raghavan would only disprove the case of the Plaintiff. There is every force in the said contention of the Plaintiff. Section 7 of the Benami Act repealed Section 281A of the Income Tax Act. Prior to repeal of Section 281A of the Income Tax Act 1961, it was mandatory for the aquirer of the property in the name of the another person to disclose within one year from the date of such acquisition of the property to disclose particulars in respect of the said property/ acquisition to the Chief Commissioner or Commissioner of Income Tax. If such a disclosure was not made, a suit to enforce any right in respect of any property held benami was not maintainable. In the present case, it is the case of the Plaintiff that the 1st Defendant is a benamidhar of K.P.Raghavan purchased in the year 1979. If it was a benami transaction, a disclosure would have been made as required under Section 281A of the Income Tax Act 1961. But, even though Auditor who audited the accounts of the Plaintiff's father has been examined as DW.3 no evidence had been let in by the Plaintiff or the 3rd Defendant to show in fact such a declaration was made by the Plaintiff 's father pursuant to Section 281A of the Income Tax Act. In view of absence of evidence in that regard, an adverse inference has to be drawn against the Plaintiff. 51. It is not the case of the Plaintiff that the property is held by the 1st Defendant as a coparcener in a Hindu Undivided Family and the property is held for the benefit of the coparceners. It is the case of the Plaintiff that it is joint family property after the demise of the Plaintiff's father, as according to the pleadings, joint family came into existence after the demise of K.P.Raghavan. The Plaintiff has also failed to plead and prove that there existed a Hindu Undivided Family of his father comprising all his heirs and that the 1st Defendant was a coparcener. Therefore, Section 4(3)(a) of the Act is not applicable. 52. It was contended by the Plaintiff that the suit falls within the ambit of Section 4(3)(b) of the Act. There is no pleadings to that effect. Therefore, Section 4(3)(a) of the Act is not applicable. 52. It was contended by the Plaintiff that the suit falls within the ambit of Section 4(3)(b) of the Act. There is no pleadings to that effect. The only available allegation in the plaint regarding fiduciary capacity is as follows:- “... the 1st Defendant is holding the suit property in a fiduciary capacity for the benefit of the members of the family of Late K.P.Raghavan after his death and that for the Plaintiff has become entitled for 1/4th share in the suit property as a legal heir of the said K.P.Raghavan underclass one of the schedule in the Indian Succession Act, 1956.” 53. In order to fall within the exception contained in Section 4(3)(b) of the Act, the person in whose name the property is held, should be a trustee of the other person and standing in a fiduciary capacity. Even according to the Plaintiff, the fiduciary capacity comes into existence after the demise of K.P.Raghavan. The theory of benami purchase made by the Plaintiff has not been proved. The evidence tendered in the instant case has been examined in detail. The evidence tendered does not indicate that the 1st Defendant is the benamidar of K.P.Raghavan. 54. The 1st Defendant retained full control of the property from the date of purchase till she executed settlement deed in favour of her daughter, the 2nd Defendant herein and she was not a mere nominal owner. The purchase in the name of the 1st Defendant was not a benami and therefore, the question of 1st Defendant holding the property in fiduciary capacity does not arise. 55. Therefore, I am of the clear view that the benami pleaded by the Plaintiff is not proved and the Chennai property was purchased only by the 1st Defendant. Since the Plaintiff has failed to establish that the purchase of Chennai property (suit I schedule) is a Benami transaction and since he failed to dislodge the presumption under Section 3(2) (a) of the Act, the Plaintiff is not entitled to any partition in the suit schedule I (Chennai property) and resultantly, the Plaintiff is not entitled to 1/4th share in the suit I schedule (Chennai property). 56. In so far as the suit schedule II (Ambattur property) is concerned, the Plaintiff and the Defendants are each entitled to 1/4th share in the said property. 57. 56. In so far as the suit schedule II (Ambattur property) is concerned, the Plaintiff and the Defendants are each entitled to 1/4th share in the said property. 57. Issue No.(1) in CS.No.847/2009:- In CS.No.847/2008, the 1st Defendant's wife is the 3rd Defendant. The 2nd Defendant's wife is the 4th Defendant. The suit as against the 4th Defendant was given up since the 4th defendant no longer resides in the suit property. The suit was given up by order dated 2.8.2010 as against the 4th Defendant. The 2nd Defendant in CS.No.847/2008 who is the 3rd Defendant in CS.No.469/2008 was examined as DW.2 and in cross examination has admitted that his wife no longer resides in the property. Since the 3rd Defendant in CS.No.847/2008 is the wife of the 1st Defendant and she resides with her husband, she has been impleaded as a party. The suit in CS.No.847/2008 is filed for recovery of possession of the portion occupied by the Defendants and therefore, the 3rd Defendant, who resides in a portion of the suit property with her husband, is a proper and necessary party. 58. Issue No.(2) in CS.No.847/2009:- The suit schedule I property has been settled in favour of R.K.Reshma Sawini (2nd Defendant in CS.No.469/2008), the daughter of Nalini Raghavan (1st Defendant in CS.No.469/2008) by her mother under Ex.P13. Her mother continues to reside along with the settlee. In view of the findings in CS.No.469/2008 that Nalini Raghavan, the 1st Defendant is the owner of the suit schedule I property (chennai property) and the said property having been settled in favour of her daughter, the Plaintiff in CS.No.847/2008, she is entitled to recover possession occupied by the Defendants in CS.No.847/2009. The settlor has been examined as DW.1 who has categorically stated both in the pleadings as well as in evidence affirming execution of settlement deed in favour of her daughter out of her own free will and volition. In fact, DW.1 has stated that her sons have to vacate the house. Hence, the Plaintiff is entitled to recover the portion occupied by the Defendants as claimed by her. Accordingly, all the issues are answered. 59. In the result, these civil suits are disposed with the following:- (1) A preliminary decree for partition allotting 1/4th share to the parties in CS.No.469/2008 in so far as schedule II (Ambattur property) is concerned, is passed. Accordingly, all the issues are answered. 59. In the result, these civil suits are disposed with the following:- (1) A preliminary decree for partition allotting 1/4th share to the parties in CS.No.469/2008 in so far as schedule II (Ambattur property) is concerned, is passed. (2) The suit in CS.No.469/2009 in so far as suit schedule I (Chennai property) is concerned is dismissed. (3) There will be a decree against the Defendants for possession and injunction in favour of the Plaintiff in CS.No.847/2009. (4) The determination of mesne profits is relegated to separate proceedings. (5) Time for handing over vacant possession is four months from today. In the circumstances of the case and considering the relationship of the parties, the parties shall bear their own costs.