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TMI Blog1974 (7) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... ts' Protection Act of 1922. Ultimately, a sum of ₹ 1,292 was paid as the price of the land and a sale deed was obtained in the name of the first defendant with the money paid by the plaintiff. In 1962, the superstructure thereon was rebuilt from the money advanced by the lessees Messrs, Southern Roadways which was a sum of ₹ 12,000. The plaintiff raised a loan of ₹ 9,000 in 1965 from one Lakshmana Chetty and discharged the amount borrowed from M/s. Southern Roadways. A mortgage in favour of Lakshmana Chetty was executed at the direction of the plaintiff by the first defendant. Another mortgage was executed by the first defendant in favour of one Boodevi Ammal for a sum of ₹ 10,000. In order to celebrate the marriage of the second daughter Vijayialakshmi yet another mortgage in favour of one Pukchraj Chordia was executed for ₹ 15,000. The mortgage in favour of the second defendant is for ₹ 20,000. The plaintiff submits that the mortgage is not binding on him and the second defendant has been impleaded as a party in order that the plaintiff's right may be protected and the plaintiff's case is that the purchase in the name of the first d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint? 5. Whether the plaintiff was in joint possession of any portion of the suit property at any time as alleged in the plaint? 6. Whether the plaintiff is estopped from claiming any share in the suit property for any of the reasons alleged by the first defendant? 7. To what relief? C. S. No. 157 of 1973. 7. The suit was originally filed before the City Civil Court, Madras and the same has been transferred to this Court. The suit is one for injunction filed by the first defendant in C. S. No. 6 of 1973, restraining the defendant (Plaintiff in C. S. No. 6 of 1973) from interfering with the possession and enjoyment of the plaintiff. 8. The allegations in the plaint are more or less similar as contained in the written statement in C. S. No. 6 of 1973 but with this addition namely that the defendant in this suit, namely the husband of the plaintiff is intimidating the tenants who offered to take the first floor on lease under the plaintiff and since he is threatening to use force against the plaintiff and the tenants under her; the necessity for the suit arose. 9. The defendant filed a written statement that the suit is only a counter blast ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shop was closed the property was leased to tenants. In 1952 he was drawing ₹ 120 per month and by way of rental income from the suit property a sum of ₹ 70 per month was realised. It is further admitted by him that there are no documents to prove that the father of the first defendant was adjudicated insolvent. He denies the suggestion that no portion of his money was paid for the purchase of the property. 15. D.W. 1 is the first defendant. She stated in chief examination that she alone paid the various instalments for the purchase of the property by running the firewood depot and after the closing of the firewood depot the suit site was let out to tenants and by way of rental income about a sum of ₹ 50 or ₹ 60 per month was realised. She denies that her husband used to pay the salary to her and that she was paying the instalments out of the amounts given by him. In cross-examination she stated that her younger brother was helping her in the firewood business and he was going outside and bringing large quantities of firewood and was helping her in the wholesale business also and therefore she was able to get money for the purchase of the suit site. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ite. As stated above, except his oral testimony there is no other proof to show that his monies went to the purchase of the suit site. But he would state that since it is admitted by D.W. 1 that the firewood business ceased as early as 1948, the first defendant had no money to pay towards the instalments and consequently it must be held having regard to the fact that the plaintiff was the only earning member, the alone contributed towards the instalments. I am unable to agree. Admittedly after the firewood business ceased, there was a regular rental income from the property of about ₹ 70 per month which was utilised for the payment of the various instalments. Moreover, there is the oral evidence of D.W. 1 that her husband namely the plaintiff contributed nothing towards the purchase of the suit site, and whatever salary he was earning he utilised the same for himself. I am impressed with her evidence and it appears to me that she is speaking the truth. From this, I conclude that the site was purchased not with the money of the plaintiff but only by the first defendant and with her own money. 18. As regards the superstructure it is the common case that a mortgage was ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e thereon was rebuilt subsequently by executing various mortgages. Whatever it may be, since I have found that no portion of the plaintiff's money has gone in for the purchase of either the suit site or the superstructure thereon, the first test laid down by their Lordships of the Supreme Court is not satisfied in this case. All the remaining tests have to be answered in favour of the first defendant, since she alone has been in possession and enjoyment of the property; no motive has been suggested for giving the transaction a benami colour; the title deeds are produced from the custody of the first defendant and the property has been dealt with by executing various mortgages by the defendant in her own capacity as the owner thereof. In this connection, it may also be noted that if really the plaintiff is the owner, there is no reason why he should choose to claim only half of the suit property instead of the entirety. 21. Thus, I answer Issue No. 1 against the plaintiff. 22. Issue No. 2 in C. S. No. 6 of 1973 : Properly speaking there ought to be a declaration and I find that there is a specific prayer for declaration with regard to the half share and the suit as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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