THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.1017 of 2010 March 04, 2011 Between: T.Yashodamma, W/o.T.Annamalai And another ... Appellants And Mabbu Subbamma, W/o.Late M.Ramaiah And others ...Respondents THE HON’BLE SRI JUSTICE V.V.S.RAO SECOND APPEAL No.1017 of 2010 JUDGMENT: The unsuccessful plaintiffs in the Courts below are the appellants in this second appeal which arises out of the judgment and decree in A.S.No.85 of 2007 dated 06.1.2010 on the file of the Court of the III Additional District Judge, Tirupati, confirming that of the Court of the Principal Senior Civil Judge, Tirupati, in O.S. No.285 of 2003 dated 04.6.2007. The appellants (hereafter, the plaintiffs) are the daughter and son of the first respondent (first defendant). The second respondent (second defendant) is another daughter of the first defendant, and the third defendant is her sister-in-law. The plaintiffs instituted the suit alleging that their father Mabbu Ramaiah was an Ex-serviceman, who had served Indian Railways; while in service he purchased the suit site (25’ X 72’) under sale deed dated 04.1.1958 in the name of the first defendant; Ramaiah used his own savings as well as income from the joint family properties for purchasing the suit site; in 1976 after death of Ramaiah his only son, second plaintiff, constructed house in the suit site by using his own earnings and joint family funds; after differences arose between the mother and son, the latter executed sale deed in favour of third defendant on 27.8.2003 to defeat the legitimate rights of the children. Therefore the plaintiffs prayed for partition of suit schedule property into 12 equal shares and allot 1/12th share to the first plaintiffs and 5/12th share to the second plaintiff and put the plaintiffs in possession of the property. The defendants 1 and 2 remained ex parte; third defendant alone contested the suit by filing written statement. She pleaded that the first defendant was the absolute owner of the suit schedule property; she acquired the property under sale deed dated 04.1.1958; the suit was instituted to extract ransom from her. She denied the allegations that the second plaintiff invested the amounts for construction of the house. She asserted that the she became absolute owner after purchasing the same from the first defendant on 27.8.2003. The trial Court framed four issues. The second plaintiff examined as P.W.1 besides bringing two more witnesses to the Court. Exs.A1 to A18 were marked. Third defendant gave evidence as D.W.1 and marked Exs.B1 to B6. After considering the oral and documentary evidence, the trial Court recorded the findings that as the suit is filed alleging that the property held by the first defendant is benami, the same is barred under Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 (the Act). The trial Court also observed that the defendants 1 and 2 and plaintiffs colluded and got the suit filed against the third defendant to deprive her legitimate right. The suit was accordingly dismissed. The first appellate court, however, came to the conclusion that the suit is not barred under the Act. Nonetheless after appreciating the evidence agreed with the trial Court that first defendant was alone absolute owner of the property and that she is entitled to sell the property to third defendant. The appeal was accordingly dismissed. The Counsel for the appellants submits that the judgments of the Courts below are vitiated by non-consideration of material evidence, Ex.A14 to A18, with regard to the existence of joint family nucleus; it is the predecessors of the plaintiffs and defendants 1 and 2 who had purchased the property under Ex.B2 in the name of the first defendant and, therefore, the suit schedule property acquires the character of joint family in which plaintiffs and defendants 1 and 2 have a right as legal representatives of the deceased Mabbu Ramaiah. According to the Counsel for the appellants the appreciation of oral and documentary evidence by the Courts below is perverse. It is axiomatic that a Hindu family is presumed to be joint family. However, there is no presumption that the property held by a member of the joint family even if he is living with the family, is a joint family property. The burden of proving that the property held by a member of the family is joint family property lies on the person who asserts such existence of joint family nucleus. The plaintiffs relied on Exs.A14 to A18 to show that there is joint family nucleus. Considering this evidence along with the deposition of P.W.2, who is none other than the sister of Mabbu Ramaiah, the trial Court concluded that there is no evidence that the property is joint family property. It was not urged before the trial Court as well as the first appellate Court, as is contended now; that the first defendant had no independent source of income and, therefore, it has to be inferred that it is her husband who purchased the suit schedule site. The submission of the Counsel for the appellants before this Court is untenable. The defendants 1 and 2 remained ex parte and the third defendant is being a bona fide purchaser cannot be expected to lead evidence regarding the source of income of the first defendant. A case of this nature cannot be decided on the surmises and a Court cannot come to conclusion that merely because the first defendant being housewife did not have any income of her own. The evidence of the P.W.2 is to the effect that after the death of Ramaiah it is her sister-in- law who constructed the house, probablises the exclusive ownership of the first defendant over the suit schedule site. Adverting to Exs.A14 to A18, the trial Court observed that there are interpolations in these documents and, therefore, they cannot be relied on to support the plea of the plaintiffs that the property is joint family property. Viewed from any angle, the entire case was based on appreciating the facts and evidence produced by the parties to the suit, who are closely related to each other. Further as held by the Supreme Court in R.Rajagopal Reddy v P.Chandrasekharan[1] under Section 4(2) of the Benami Transactions (Prohibition) Act, 1988, no defence will be permitted or allowed in any suit against the person in whose name, the property is held or against any other person. Therefore, when the property, admittedly, was held by the first defendant under valid sale, the plaintiffs or the second defendant cannot be permitted to raise the plea that their father purchased the suit schedule property in the name of their mother, the first defendant. In a case of this nature there are bound to be opinions more than one. When the Courts below found the evidence as supporting the case of the third defendant, it cannot be a ground for interference in the second appeal especially when the matter involves a question of fact. The second appeal is misconceived and is, accordingly, dismissed. _______________ (V.V.S. RAO, J) March , 2011 YS [1] AIR 1996 SC 238