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2022 (2) TMI 683 - MADRAS HIGH COURTBenami transaction - real owners of suit property - non-consideration of the Will set up by the defendants - When the 1st defendant has died pending suit and the suit properties will devolve on the legal heirs whether the Will pleaded by the defendants have to be proved or not for claiming exclusive right? - HELD THAT:- Though the first defendant has not produced any relevant document to show how can she purchased the property, that would not defeat the case of the first defendant. In fact, the pleadings set out in the plaint, the plaintiffs have not averred about the income derived from the joint family property. Therefore, on that score alone, the evidence let in by the plaintiffs cannot be taken into account. Therefore, in view of the above, this Court cannot be termed that the suit schedule property, is the joint family property of the plaintiffs and the defendants' family. As far as the relief of injunction also, being the reason that the plaintiffs have not proved their case, as the suit property is the joint family property of the plaintiffs and the defendants, they cannot ask such a relief as against the first defendant, who is having a title. Therefore, in all, the evidence let in by the plaintiffs have not shown that the property has been purchased by utilising the funds realised from the ancestral property of the plaintiffs and defendants. Since the title and possession have not been proved by the plaintiffs, they are not entitled to the relief of injunction. The Courts below had also traversed in the same line and concurrently held that the plaintiffs have not proved their case. While at the time of framing the substantial questions of law, the alleged Will executed by the first defendant has been mentioned as the same has not been answered. In this regard, on going through the judgment rendered by the Court below, after the death of the first defendant, the plaintiffs have not taken any steps to amend the plaint, and impleaded the legal representatives of the deceased first defendant. It is well settled that without any pleading, the evidence let in on that score, cannot be looked into. Herein also, without producing the alleged Will and without amending the pleading in respect to the death of the first defendant and in respect to the execution of the Will, it is not necessary for the Court below to decide whether the suit property will devolve upon the legal representatives of the deceased first defendant. In this regard, the only option available for the plaintiffs is to file a suit for partition and in otherwise, answering the said issue, is not necessary in this Second Appeal. Substantial questions of law, are all answered in favour of the respondents and thereby, the Second Appeal is dismissed.
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