S.K.Mookherjee, J. - (1.) The first appeal is against a decree for declaration and partition. The defendants are appellants. The plaintiffs belonged to the same branch of the family and the predecessor in interest of the plaintiffs and defendants were brothers.
(2.) The dispute involve in the appeal appears to be confined to the properties mentioned in the schedule attached to written statement. The other properties included in the plaint schedule, apart from those properties in the schedule of the written statement, appear to be not seriously claimed by the defendants/appellants. The Genaeological Table at page 34 of the paperback indicates the relationship between the parties.
(3.) The basis of plaintiff's claim with regard to the properties scheduled in the written statement is that though the properties stand in the name of the mother of the defendants they are really properties acquired out of joint family properties and as such he claims to have equal share with the defendants. The defence on the other hand is that the properties belonged absolutely to their mother in her own right and were acquired out of her stridhan money. The alternative defence is that even assuming the allegation of Benami to be true the suit must be dismissed because of contravention of the provisions of the Benami Transactions Prohibition Act. In this connection the defendants have also taken the defence that, in the absence of appropriate pleading, it is no longer open to the plaintiff' to allege and prove that the exceptions, as mentioned in the Benami Transaction Prohibition Act apply. Thirdly, even if pleadings are amended, the benamdar not being the member of the joint family, the presumption of joint ness of the properties cannot hold good. The learned trial Judge, in the impugned judgment has recorded the following findings:-- (i) The case of previous partition has sought to be made out by the defendant had been found to be not believable. (ii) Regarding Plot No.493 recorded in C.S. Khatian No.61, Plot Nos. 1026, 2029 & 908 recorded in Khatian No.226 and C.S. Khatian No. 226, Plot 1348 and 1339 recorded in C.S. Khatian No.228, Plot No. 1879 recorded in C.S. Khatian No...................Plot No. 1633 of Khatian No. 290, 3 annas share of Plot No. 1268 recorded in C.S. Khatian No. 82; Plot No.19530 and 1447/2562 recorded in Khatian No.....................were in possession of Bina Pani and rents in respect thereof were paid by her. The Deeds of Purchase with regard to these plots contained clear recital that the consideration came out of Bina Pani's stridhan and had been gifted by her to the defendant by a registered Deed of Gifts dated 30th March, 1990. The defence evidence about separate possession and cultivation has been dis-believed. (iii) The Purchase pion were possible to have been met out of the income of joint family properties that were large. Claim of Bina Pani having stridhan was dis-believed. The properties, were held to be joint family properties standing in the name of Bina Pani and plaintiff's entitlement to 8 annas share had been found, (iv) With regard to properties being plot Nos. 1634, 1638 and 1672 of Khatian No. 285 and Plot No. 1672/2360 of Khatian No. 289 that were acquired in a pre-emption proceeding admittedly by the plaintiffs 1 & 2, the plaintiffs case of he having paid half of the consideration money required to be deposited had been accepted as no documentary evidence was found available in support of the defence case of payment of 50% of the consideration money. Plot Nos. 1268 and 1960, the two tanks known as Senpukur and Durga Madhab, Bina Pani was a name lender and defendants have 3 1/2 annas share, the plaintiffs share being 9 1/2 annas. In Durga Madhab, the plaintiff has 6 annas share plus 1/3 share of 4 annas and the remaining share belonged to the defendants.;