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2018 DIGILAW 1498 (MAD)

G. Sugunambal v. Dhanalakshmi Ammal

2018-04-23

P.KALAIYARASAN

body2018
JUDGMENT : 1. This Civil Suit has been filed seeking (a) to pass a preliminary decree for partition by dividing the Item No.1 of the suit property by metes and bounds and allocate 2/3 shares to the fourth plaintiff or in the event of property indivisible, directing the fourth defendant to sell his share to the fourth plaintiff for the value fixed by the Court; (b) for a declaration that the fourth plaintiff has title over the 2/3rd undivided share in respect of Item No.1 of the property and injunction restraining the defendants from interfering with the peaceful possession of the same; (c) for a declaration that the settlement deed, dated 24.03.1989 executed by the first defendant in favour of second and third defendants with respect to Item No.2 of the suit property as sham and nominal and to declare that the plaintiffs are the absolute owners of the property and (d) for permanent injunction restraining the defendants from alienating or dealing with the suit Item Nos.1 and 2 except in accordance with law. 2. The plaint averments are as follows: (i) The first plaintiff is the wife of late N.Gurupatha Mudaliar, who was dealing with Indian made liquor sales and earned substantial amounts. N.Gurupatha Mudaliar purchased few properties in the name of children born through legal wedded wife, the fourth plaintiff, besides in the name of the children born to his kept mistress, viz., the first defendant as well as Vijayalakshmi. The first plaintiff, G.Sugunambal was only the legally wedded wife of late Gurupatha Mudaliar. Out of the wedlock the first plaintiff gave birth to two sons and a daughter who are plaintiffs 2 to 4. Gurupatha Mudaliar was having illegitimate intimacy with Dhanalakshmi, the first defendant and G.Vijayalakshmi, the mother of the fourth defendant. The first defendant cannot claim the status of a wife since her husband Rajamanickam was alive when he was the kept mistress of N.Gurupatha Mudaliar. (ii) Dhanalakshmi Ammal, the first defendant through Gurupatha Mudaliar begot three children by name Govindammal, Nandakumar and Loganathan. Loganathan died on 05.11.1986 issueless and unmarried and Nandakumar died on 22.08.1988 leaving behind wife and widow Smt.N.Manjula and son by name Parthiban and daughter by name Lakshmipriya. The daughter of Dhanalakshmi Ammal, viz., Smt.Govindammal gave birth to two children, namely A.P.Om Prakash Narayan (D2) and Logabiram (D3) through her husband Pachaiappan. Loganathan died on 05.11.1986 issueless and unmarried and Nandakumar died on 22.08.1988 leaving behind wife and widow Smt.N.Manjula and son by name Parthiban and daughter by name Lakshmipriya. The daughter of Dhanalakshmi Ammal, viz., Smt.Govindammal gave birth to two children, namely A.P.Om Prakash Narayan (D2) and Logabiram (D3) through her husband Pachaiappan. (iii) G.Vijayalakshmi, the kept mistress of Gurupatha Mudaliar has two sons by name G.Sathyakeerthi, Saravanamurthi and one daughter Smt.Santhannayaki. (iv) The deceased Gurupatha Mudaliar during his life time acquired Item No.1 of the plaint schedule property in the name of Loganathan, G.Deivakadacham (D4) and G.Sathyakeerthi (P4) by a sale deed, dated 03.12.1980, when the said Loganathan, D4 and P4 were aged 14, 5 and 9 years respectively. He also constructed Rajambal Kalyana Mandapam in the property and enjoyed the income derived therefrom till his demise. Similarly, Gurupatha Mudaliar also acquired Item No.2 of the plaint schedule property under three sale deeds, dated 23.04.1986 in the name of Loganathan. (v) Loganathan had passed away on 05.11.1986 and Nandakumar had passed away on 22.08.1988 and Gurupatha Mudaliar died on 23.08.1991. (vi) After the demise of Gurupatha Mudaliar, the fourth plaintiff has been exercising control over the Kalyana Mandapam and has been enjoying the income along with the fourth defendant. Both Item Nos. 1 and 2 of the suit property belong to the estate of Gurupatha Mudaliar and the plaintiffs being legal heirs have succeeded to the estate and have become absolute owners of the property. But however the fourth plaintiff and fourth defendant were running the Kalyana Mandapam and were enjoying the income from the Kalyana Mandapam. As Item Nos.1 and 2 of the plaint schedule properties belong to the estate of late N.Gurupatha Mudaliar, the first defendant has no semblance of right, title or interest in the property and as such she is not entitled to execute any settlement / sale in respect of the properties. (vii) With a view to maintain harmony and cordial relationship among the members of the family and also the members of the kept mistress family, the plaintiffs called the defendants for an amicable settlement of division of the properties. The first defendant has created a fraudulent settlement in favour of second and third defendants on 26.04.1999, ignoring the rights and entitlements of the plaintiffs. The first defendant has created a fraudulent settlement in favour of second and third defendants on 26.04.1999, ignoring the rights and entitlements of the plaintiffs. The plaintiffs are entitled for 1/4th share each in Item No.2 of the schedule property and in respect of Item No.1, the plaintiffs and fourth defendant are entitled for 2/3rd and 1/3rd share, even though 1/3rd share of the fourth defendant is disputed by the plaintiffs. Therefore the suit has been filed. 3. The averments made in the written statement filed by the first defendant are as follows: (i) It is specifically denied that the first plaintiff was legally wedded wife of Gurupatha Mudaliar and the first defendant is only a kept mistress and the children born to her are all illegitimate. This defendant was the first legally wedded wife of Gurupatha Mudaliar to whom she gave birth two sons by name Nandakumar and Loganathan and a daughter by name Govindammal. Subsequently Gurupatha Mudaliar took the first plaintiff and G.Vijayalakshmi, mother of the fourth defendant as his second and third wife respectively. The children born through them as stated in the plaint is correct. Gurupatha Mudaliar treated all his three wives and the respective children born to them alike without any discrimination. (ii) He wanted all of them to be well provided for and benefited equally after his demise. Only with such good intention he purchased Item No.1 of the plaint schedule property in the name of his three minor sons, Loganathan, Deivakadacham and Sathyakeerthi born to three wives. Likewise he purchased Item No.2 of the plaint schedule property in the name of the first defendant's younger son, G.Loganathan. So also he purchased various other properties in the names of his other sons and wives which however are not the subject matter of the present suit. The properties were purchased intending to benefit the wives and children in whose names they were purchased and as such they are the real and beneficial owner and not nominal owners. The first defendant's son Loganathan, the real and beneficial owner of the suit properties died on 05.11.1986 intestate, unmarried and without issues. The suit property therefore devolved upon the first defendant being the only class I legal heir entitled to succeed and inherit the same. (iii) Gurupatha Mudaliar died on 23.08.1991. He never claimed any right in the suit properties purchased in the name of Loganathan. The suit property therefore devolved upon the first defendant being the only class I legal heir entitled to succeed and inherit the same. (iii) Gurupatha Mudaliar died on 23.08.1991. He never claimed any right in the suit properties purchased in the name of Loganathan. The claim made by the plaintiffs that on the death of Loganathan, the properties reverted to Gurupatha Mudaliar is wholly untenable. After the death of Gurupatha Mudaliar, the first defendant along with fourth plaintiff and fourth defendant was in joint possession and enjoyment of Item No.1 of the plaint schedule property comprising Kalyana Mandapam and the income therefrom were first shared equally among three, later there was some misunderstanding arising out of irregular and improper share of income. There upon both the fourth plaintiff and fourth defendant who were in joint management of the Kalyana Mandapam made a monthly consolidated payment to the first defendant towards her share of the income as agreed to and undertaken by them. The first defendant as a sole legal heir of Loganathan was in exclusive possession and enjoyment of the second item of the plaint schedule property as its absolute owner since the demise of Loganathan and more particularly after the death of Gurupatha Mudaliar in 1991. (iv) As regards Item No.1 of the plaint schedule property, the first defendant sold and conveyed her undivided 1/3rd share to the fourth defendant herein for a consideration of Rs.15 lakhs under a sale deed, dated 29.04.2005. The fourth plaintiff on coming to know of her intended sale of her share in Item No.1 of the plaint schedule property to the fourth defendant, made a similar offer and wanted to purchase. But the first defendant preferred the fourth defendant to the fourth plaintiff, since the former had all along been very helpful and assisting in her old age almost like a natural son. (v) The first defendant settled Item No.2 of the plaint schedule property in favour of grand children, defendants 2 and 3 under the settlement deed, dated 21.04.1999. It is travesty of truth that the first defendant was married to one Rajamanickam and has children born out of the wedlock. The plaintiffs are estopped from contending and claiming right in the suit properties by their past conduct. It is travesty of truth that the first defendant was married to one Rajamanickam and has children born out of the wedlock. The plaintiffs are estopped from contending and claiming right in the suit properties by their past conduct. Since the first defendant had been in open, peaceful and exclusive possession and enjoyment of the suit properties after the death of Loganathan in 1996 and Gurupatha Mudaliar in 1991, she had perfected his title by adverse possession and the suit laid after the expiry of the statutory period is clearly barred by limitation. Plea of alleged Benami purchase by Gurupatha Mudaliar for his own benefit is unsustainable in view of bar under Section 4 of Benami Transactions (Prohibition) Act, 1988. The suit is also liable to be dismissed for partial partition. Therefore the suit is to be dismissed. 4. The contents of the written statement filed by the defendants 2 and 3 is as follows: (i) This defendants adopt the written statement filed by the first defendant. Item No.2 of the plaint schedule property was purchased in the name of G.Loganathan and he was the real and beneficial owner of the suit property. He died intestate, unmarried and issue less in 1986 and after his death the property devolved on his mother, the first defendant. The first defendant had settled the property in favour of the defendants 2 and 3 under the deed, dated 21.04.1999. The same is perfectly and legally valid and proper. The plaintiff do not have any manner of right, title or interest over the same. (ii) The defendants 2 and 3 have also entered into an agreement, dated 31.10.2003 to sell the Item No.2 of the plaint schedule property to M/s.Latha Constructions, represented by its Proprietrix Mrs.Dhana Latha and received the entire sale consideration of Rs.32 lakhs. The suit is to be dismissed. 5. The averments made in the written statement with a counter claim by the fourth defendant is as follows: (i) The legal status attributed to and claimed by the first plaintiff as the legally wedded wife of deceased Gurupatha Mudaliar is denied. The averments in the plaint that the first defendant and the fourth defendant's mother Vijayalakshmi are the kept mistress of the said Gurupatha Mudaliar is false and mischievous. The averments in the plaint that the first defendant and the fourth defendant's mother Vijayalakshmi are the kept mistress of the said Gurupatha Mudaliar is false and mischievous. Gurupatha Mudaliar had three wives and he treated all the three wives and the respective children born to them including the fourth defendant with equal love and affection. With a view to confer equal benefits on all, Gurupatha Mudaliar purchased various properties including the suit properties in the name of his wife and children with a sole aim and intention of benefiting them all. He purchased Item No.1 of the suit property in the name of his three sons, G.Loganathan, fourth plaintiff and fourth defendant and later constructed the Kalyana Mandapam. Thus the title holders are the real and beneficial owners. (ii) Till the death of Gurupatha Mudaliar, all the properties were in his control and management and the income derived therefrom were being collectively utilised by him for maintaining all the three families by virtue of his position as the patriarch and head of the families and guardian for the minors. After the death of Gurupatha Mudaliar on 23.08.1991, the three co-owners and co-sharers, viz., the fourth plaintiff, the first and fourth defendants herein were in the joint possession and enjoyment of Item No.1 of the suit schedule property, sharing the income derived therefrom equally. The fourth plaintiff is estopped from contending that the first defendant has no right over the first item and the fourth plaintiff shall be deemed to have waived his right, if any to the present suit claim. (iii) The first defendant had settled Item No.2 of the plaint schedule property in favour of her grand children, defendants 2 and 3. Subsequently the first defendant sold her undivided 1/3rd share of the Item No.1 of the suit property to the fourth defendant as per sale deed, dated 24.05.2009 for a valuable consideration of Rs.15 lakhs. The fourth plaintiff is entitled to only 1/3rd undivided share in the first item of the property. The suit has been filed only in 2005 long after the death of Gurupatha Mudaliar in 1991. The suit is barred by limitation and the first defendant had perfected title by adverse possession. The suit is also hit by provisions of Benami Transactions (Prohibition) Act, 1988. The suit has been filed only in 2005 long after the death of Gurupatha Mudaliar in 1991. The suit is barred by limitation and the first defendant had perfected title by adverse possession. The suit is also hit by provisions of Benami Transactions (Prohibition) Act, 1988. (iv) The fourth defendant is the absolute owner of 2/3rd undivided share in Item No.1 of the suit schedule property. The fourth defendant and the fourth plaintiff who are now in joint possession and enjoyment of the suit property are entitled to share their income and profit in the ratio 2:1 in proportionate to their respective shares. The fourth plaintiff has been adopting a very hostile and recalcitrant attitude and therefore it has become impossible to continue with joint possession any longer. This defendant is entitled to a partition by metes and bounds and separate possession of his undivided 2/3rd share in Item No.1 of the suit schedule property. The fourth plaintiff when demanded refused for effecting a peaceful partition. Therefore the fourth defendant makes a counter claim praying to pass a preliminary decree allotting the fourth defendant 2/3rd undivided share in Item No.1 of the plaint schedule property by effecting division of the said property by metes and bounds. In the event of incapability of such division, direct the sale of the 1/3rd share by the fourth plaintiff to the fourth defendant for a value to be fixed by this Court. 6. The contention of the written statement filed by the defendants 5 and 6 are as follows: The defendants 5 and 6 have no interest in item 1 of the suit property. With respect to Item No.2 of the plaint schedule property, the fifth defendant is the agreement holder and sixth defendant is the power agent of defendants 2 and 3. The suit is vexatious and is liable to be dismissed. The suit has been filed dehors of provisions of Benami Transactions (Prohibition) Act, 1988. G.Loganathan had become the absolute owner of the Item No.2 of the plaint schedule property as per the sale deeds. Loganathan died leaving his mother, the first defendant as his only legal heir. The first defendant has settled the property in favour of defendants 2 and 3. They entered into an agreement with the fifth defendant on 31.03.2003 to sell the said property. Loganathan died leaving his mother, the first defendant as his only legal heir. The first defendant has settled the property in favour of defendants 2 and 3. They entered into an agreement with the fifth defendant on 31.03.2003 to sell the said property. The suit 2nd item property has also been handed over to the fifth defendant and defendants 5 and 6 have also promoted the said premises. The fifth defendant is a bonafide purchaser for valuable consideration. All the necessary parties namely the legal heirs of Gurupatha Mudaliar has not been made as parties and therefore the suit is to be dismissed. 7. The averments made in the reply statement filed on behalf of the fourth plaintiff to the counter claim preferred by the fourth defendant are as follows: (i) Any alienation made either by the first defendant or second defendant and third defendant are illegal, invalid and nonest in the eyes of law. The counter claim is not maintainable. It is true that the fourth plaintiff and fourth defendant are in joint possession of the property. But in so far as the share of the fourth defendant is concerned, it is very much in dispute and therefore he cannot make any counter claim. The counter claim is hopelessly barred by limitation. Without seeking for a declaratory relief, the fourth defendant is not entitled to claim partition of the property. Therefore the counter claim is to be dismissed. 8. On perusal of the pleadings of the parties, the following issues and additional issues have been framed for trial: "1. Whether the first plaintiff is the legally wedded wife of late Gurupatha Mudaliar ? 2. What is the legal status of the parties in relation to the deceased Gurupatha Mudaliar ? 3. Whether the first defendant succeeded and inherited the suit schedule properties on the demise of her son G.Loganathan? 4. Whether the suit is barred under Section 4 of the Benami Transactions (Prohibition) Act, 1988? 5. Whether the fourth plaintiff or fourth defendant is entitled to 2/3rd undivided share in Item No.1 of the suit property? 6. Whether the fourth plaintiff is entitled to get injunction as against the defendants in respect of possession and enjoyment of the first item of the schedule of property? 7. Whether the plaintiffs are entitled to declaratory relief as prayed for? 8. To what relief the parties are entitled? 6. Whether the fourth plaintiff is entitled to get injunction as against the defendants in respect of possession and enjoyment of the first item of the schedule of property? 7. Whether the plaintiffs are entitled to declaratory relief as prayed for? 8. To what relief the parties are entitled? Additional Issue: Whether the plaintiffs are entitled to declaration that they are the absolute owners of the properties scheduled as Item 2 in the plaint?" 9. On the side of the plaintiffs, P.W.1 to P.W.4 were examined and Ex.P.1 to Ex.P.30 marked. On the side of the defendants, D.W.1 to D.W.3 were examined and 31 Exhibits marked. 10. Issue Nos.1 and 2: The entire case lies on the core issue whether the properties purchased in the name of Loganathan when he was minor by his father Gurupatha mudaliar reverts back to the estate of father on the demise of Loganathan or whether it devolves on his mother, D1 as the Class-I heir of Loganathan and whether the suit itself is hit by Section 4 of Benami Transactions (Prohibition) Act, 1988. 11. There is no dispute that Item No.1 of the suit schedule property was purchased on 03.12.1980 by Gurupatha Mudaliar in the names of his three sons, namely Loganathan, fourth defendant and fourth plaintiff. The fact also remains that Loganathan was born to D1, fourth defendant to Vijayalakshmi and the fourth plaintiff to the first plaintiff through Gurupatha Mudaliar. Similarly Item No.2 of the suit schedule property was purchased on 22.03.1986 by Gurupatha Mudaliar in the name of his sons. At the time of purchase, they were minors and D1 is the mother of Loganathan are not in dispute. 12. The learned counsel appearing for the plaintiffs cited the following Judgments of the Hon'ble Supreme Court to decide as to marital status of the parties: 1. Indra Sarma v. V.K.V.Sarma, (2013) 15 SCC 755 2. D.Velusamy v. D.Patchaiammal, (2010) 10 SCC 469 3. U.Suvetha v. State, (2009) 6 SCC 757 13. The above Judgments deal with the relationship in the nature of marriage under Domestic Violence Act where the relatives of the husband in 498(A) IPC includes girl friend or concubine and about live in relationship whether it is relation in the nature of marriage. These rulings are not applicable to the facts of this case. The above Judgments deal with the relationship in the nature of marriage under Domestic Violence Act where the relatives of the husband in 498(A) IPC includes girl friend or concubine and about live in relationship whether it is relation in the nature of marriage. These rulings are not applicable to the facts of this case. Further as already pointed out, the status of the parties, viz., the first plaintiff, D1 and Vijayalakshmi with reference to the deceased Gurupatha Mudaliar is not required to decide the issues in this suit. 14. The status of the first plaintiff, the first defendant and Vijayalakshmi have been disputed with. Though the first defendant and fourth defendant, s/o. Vijayalakshmi plead and aver that Gurupatha Mudaliar had three wives, viz., D1, the first plaintiff and Vijayalakshmi, whereas the plaintiffs contend that the first plaintiff alone is the legally wedded wife and the other two viz., D1 and Vijayalakshmi are kept mistress of Gurupatha Mudaliar. The fourth plaintiff, son of the first plaintiff has been examined as P.W.1 and the first plaintiff has not stepped into the box. P.W.1 in his evidence during cross-examination admits that his mother, the first plaintiff herself has said in the other proceedings that Gurupatha Mudaliar had three wives, namely Dhanalakshmi, herself and Vijayalakshmi. The certified copy of the above deposition has also been marked as Ex.P.5. He further says in his cross-examination that in his legal notice, which has been marked as Ex.D.4, it is stated that D1 and her daughter Govindammal are the legal daughters of Gurupatha Mudaliar. It is suffice to say that D1 is admittedly the legal heir of Gurupatha Mudaliar. However, the legal status of first plaintiff, D1 and Vijayalakshmi need not be gone into to decide the issues involved in this suit. This Court holds that D1 is the mother of Loganathan and Gurupatha Mudaliar is his father. These two issues are answered accordingly. 15. Issue Nos.3, 4, 5: The undisputed facts are that Item No.1 of the plaint schedule property was purchased by Gurupatha Mudaliar on 03.12.1980 in the name of his minor sons Loganathan, D4 and the fourth plaintiff. Similarly, Item No.2 of the suit schedule property was purchased by Gurupatha Mudaliar in the name of his son Loganathan. Loganathan had passed away on 05.11.1986 issueless and unmarried, leaving his mother, D1 as Class-I heir. Gurupatha Mudaliar had passed away on 23.08.1991. 16. Similarly, Item No.2 of the suit schedule property was purchased by Gurupatha Mudaliar in the name of his son Loganathan. Loganathan had passed away on 05.11.1986 issueless and unmarried, leaving his mother, D1 as Class-I heir. Gurupatha Mudaliar had passed away on 23.08.1991. 16. The learned counsel appearing for the plaintiffs argued that Gurupatha Mudaliar purchased the properties in the names of minors in the fiduciary capacity for the benefit of the family and after the demise of Loganathan, the property reverts back to the estate of Gurupatha Mudaliar and therefore, D1 though Class-I heir of Loganathan has no right over the property. 17. The learned counsel appearing for the first defendant argued that the properties were purchased in the names of minors for their benefits and Loganathan is the real and beneficial owner and the properties were not purchased in fiduciary capacity. He further argued that the first defendant was in possession of the suit properties on the date of the suit and the suit itself is hit by Section 4 of the Benami Transactions (Prohibition) Act, 1988. 18. Loganathan had 1/3rd share in Item No.1 of the suit schedule property. Item 2 absolutely belonged to Loganathan. After his demise, especially after the death of Gurupatha Mudaliar, the first defendant had been in possession and enjoyment of the property. According to the first defendant, she had been in possession and enjoyment all along with the fourth plaintiff and D4 with respect to the first item of the suit property and had been in possession and enjoyment of Item No.2 of the plaint schedule of the properly absolutely. P.W.1 himself admits during cross-examination that after the demise of Gurupatha Mudaliar, the second item of the suit property was in possession and enjoyment of the first defendant. 19. Ex.P.16 is series of receipts for payments made to the first defendant towards her 1/3rd share in the rental income of the first item of the suit property. Ex.D.8 depicts that the other two co-owners, namely fourth plaintiff and fourth defendant undertook to make a consolidated payment of Rs.10,000/- to the first defendant towards her 1/3rd share in the rental income of the first item of the suit schedule property. Ex.D.8 depicts that the other two co-owners, namely fourth plaintiff and fourth defendant undertook to make a consolidated payment of Rs.10,000/- to the first defendant towards her 1/3rd share in the rental income of the first item of the suit schedule property. Even in the plaint filed by the fourth plaintiff herein as plaintiff in O.S.No.204 of 1998 before the District Munsif Court, Sholinghur against all the heirs of Gurupatha Mudaliar, he pleaded in clear terms that the properties were acquired in the name of the plaintiffs and the defendants as their self-acquired properties as could be seen from Ex.D.6, the plaint copy. Thus the first defendant, as the only Class-I legal heir of her son Loganathan had been in possession of the suit properties. It is also pertinent to note that there is no specific pleading on the side of the plaintiffs that the properties were not purchased for the use and benefit of Loganathan and the said Loganathan and his mother have not exercised any right over the property. 20. For the aforesaid reasons, the suit is clearly hit by Section 4 of the Benami Transactions (Prohibition) Act, 1988. The first defendant succeeded and inherited 1/3rd share of her son Loganathan in Item No.1 and entire Item No.2 of the suit schedule property on the demise of her son G.Loganathan. 21. It is contended on the side of the defendants that all the properties have not been included and all the legal heirs of Gurupatha Mudaliar have not been arrayed as parties. P.W.1 during his cross-examination admits that apart from the suit properties, there is one another property standing in the name of Loganathan and he came to know about that property in the year 2004 and the same has not been included in the present suit filed in the year 2005. It is also an admitted case that all the legal heirs of Gurupatha Mudaliar had not been arrayed as parties in the suit. 22. Gurupatha Mudaliar died on 23.08.1991 and the suit has been filed on 26.04.2005. Thus the suit has been filed after about 14 years, when the first defendant had been in peaceful possession and enjoyment of the properties without any interference, with the knowledge of the plaintiffs and others. The contention of the first defendant that she had been perfected title by adverse possession cannot be brushed aside. Thus the suit has been filed after about 14 years, when the first defendant had been in peaceful possession and enjoyment of the properties without any interference, with the knowledge of the plaintiffs and others. The contention of the first defendant that she had been perfected title by adverse possession cannot be brushed aside. Having succeeded and inherited the suit properties, the first defendant sold her 1/3rd share in Item No.1 of the suit property to D4 by sale deed, Ex.D.30 dated 29.04.2005 for a valuable consideration of Rs.25 lakhs. On the same day, i.e., on 29.04.2005 the first defendant settled Item No.2 of the suit schedule property under Ex.D.9 in favour of her grand children, D2 and D3. 23. For the aforesaid reasons, this Court holds that the first defendant succeeded and inherited the suit schedule properties on the demise of her son, G.Loganathan and the fourth defendant is entitled to 2/3rd share in Item No.1 of the suit property and the suit is barred under Section 4 of the Benami Transactions (Prohibition) Act, 1988. 24. There is no dispute that as per the original sale deed, Ex.P.1, dated 03.12.1980, the fourth defendant and the fourth plaintiff are having 1/3rd share each in Item No.1 of the property. D1 succeeded and inherited 1/3rd share of his son Loganathan and since she sold that share in favour of D4, D4 is entitled to 2/3rd share in the first item of the suit property. Issue Nos.3 to 5 are answered accordingly. 25. Issue Nos.6, 7 and Additional Issue: In view of the decisions of this Court for the Issue Nos.1 to 5, this Court holds that the plaintiffs are not entitled to the declaratory reliefs as prayed for by them and also the relief of injunction. 26. Issue No.8: The fourth defendant made a counter claim praying to pass a preliminary decree allotting 2/3rd undivided share in the first item of the suit property. As discussed in the earlier issues, the first defendant who succeeded and inherited 1/3rd share of her son Loganathan in the first item of the suit property has sold to D4, as per the sale deed, dated 29.04.2005, which is marked as Ex.D.30. As discussed in the earlier issues, the first defendant who succeeded and inherited 1/3rd share of her son Loganathan in the first item of the suit property has sold to D4, as per the sale deed, dated 29.04.2005, which is marked as Ex.D.30. D4 already having 1/3rd share in the first item of the suit property under Ex.P.1, acquired another 1/3rd share from D1 and thus he is entitled to 2/3rd share in the first item of the suit property. 27. Considering the dispute between the parties as put forth in the present suit, the demand made by D4 for partition by metes and bounds and separate possession of his undivided 2/3rd share in Item No.1 of the suit property is just. Therefore the fourth defendant is entitled to 2/3rd share in the first item of the suit property by effecting division of the suit property by metes and bounds or in the event of incapability of such division, the fourth plaintiff is directed to sell his 1/3rd share of the first item of the suit property to D4 for a value to be fixed by this Court. 28. In the result, this Civil Suit is dismissed and the counter claim made by the fourth defendant is allowed and preliminary decree is passed as prayed for by the fourth defendant. No costs.