Deoki Nandan, J. - (1.) THIS second appeal was heard and allowed by me ex parte against the defendant -respondent, by my judgment dated 11th August, 1982. That was recalled inasmuch as Dr. Gyan Prakash, learned counsel for the defendant respondent did not have an opportunity of being heard on account of his name not been shown in the cause list. Having heard learned counsel for the defendant -respondent, I am satisfied that the judgment dated 11th August, 1982 does not suffer from any error and must be restored. It is accordingly unnecessary for me to restate or to repeat the reasons given by me for arriving at the conclusion that I did, namely, that the appeal should be allowed, I direct that the judgment dated 11th August, 1982 shall be deemed to be a part of this judgment. However, I must refer to the argument addressed to me by Dr. Gyan Prakash for the defendant -respondent and give my reasons for not agreeing with him.
(2.) THE question which arose between the parties was whether the fact that the entire consideration for the purchase was paid by Lata Battu Mal made the plaintiff a mere Benamidar for him and whether on the facts and in the circumstances. Lala Battu Mal purchased the property in the joint name of himself and the plaintiff with the intention of making the plaintiff an equal owner of the property with him. Dr. Gyan Prakash relied heavily on a Division Bench decision of this Court in Mt. Siddiqa Begam v. Abdul Jabbar Khan and other : A.I.R. 1942 All. 308, wherein it was held that the burden of proof that a transfer is Benami lies in the first instance upon the person asserting it to be so, but that burden is discharged upon the said person showing that the purchase money was provided by him or by some -one other than the person in whose name the purchase was taken. It was urged by Dr. Gyan Prakash that it is un -disputed in the present case that the purchase money came from Lala Battu Mal and that being so the burden of proof lay not on the defendant but on the plaintiff to establish that the transaction was not Benami. Reference was also made to a Division Bench decision of the Orissa High Court in Nandipalli Appalaraju v. G. Pannalal Sowcar and others : A.I.R. 1982 Ori 131, wherein it was held that in order to determine whether a transaction is Benami or not the source of consideration is almost the deciding factor. I had found that apart from proof of payment of the entire sale consideration by Lala Battu Mal, and the fact that the purchase was made by him in the joint names of himself and the plaintiff as evidenced by the sale -deed, the evidence on the point, that is on the question whether purchase in the name of the plaintiff was Benami or not, is scanty and unreliable. Lala Battu Mal was dead. The only evidence which we had on the point, is that of Shambhu Saran (P.W. 1) who was the plaintiff's natural father; Kishan Lal (P.W. 2) who was the scribe of the sale -deed; and Om Prakash (D.W. 1), who was a witness of the sale -deed and related to Lala Battu Mal as his wife's brother's son, probably the defendant's brother's son. The defendant, who might have known some thing about the intention or the circumstances, in which Lala Battu Mal, her husband, joined the plaintiff as a co -purchaser with him, refrained from appearing in the witness box. Shambhu Saran (P.W. 1) stated that the plaintiff lived with Lala Battu Mal ever since he was four years old, and that Lala Battu Mal purchased half the property for the plaintiff for the reason that he had great love and affection for the latter. The scribe of the sale -deed, Kishan Lal (P.W. 2) did say that he scribed the sale -deed on the instructions of Lala Battu Mal who told him that he was purchasing half the property for himself and the other half for the plaintiff, but he could have hardly deposed, anything different from that which was written in the sale -deed itself. Om Prakash (D.W. 1) admitted that the plaintiff was living with Lala Battu Mal. He, however, said that the plaintiff's name was entered 'by the way' his cross -examination shows that he could not have known what the intention of Lala Battu Mal was in joining the plaintiff's name as a co -purchaser of the property with him. Under these circumstances I observed that: "We are thus left with the presumption, which the law says, may be raised or may not be raised on these facts and circumstances." having heard learned counsel for the appellant, I am of opinion that the proper inference to be drawn in this case on the aforesaid facts and circumstances was that Lala Battu Mal intended to make the plaintiff a joint owner of the property with him, and that it was not a case of a Benami transaction. In the sale -deed, the plaintiff has been, described as the adopted son of Lala Battu Mal and as under his guardianship, it is admitted on all hands that the plaintiff was living with Lala Battu Mal. It cannot be doubts that Lala Battu Mal had love and affection for the plaintiff (P.W. 1) has said so and (D.W. 1) has not rebutted it. Lala Battu Mal was said to have been a man of means, and was said to have been engaged in speculative business. It is not unusual to find persons engaged in speculative business to acquire and hold property in the names of their wives or minor children or other friends or relatives so as to put them out of the reach of their creditors in case of adversity, but that could not have been the intention of Lala Battu Mal, for he did not do any thing to conceal the fact that he was the purchaser. He even gave his own name as the first name among the two purchases. The elements of concealment or secrecy, or make believe which normally go with Benami transactions, are thus completely absent in this case. It was a clear and straight forward transaction of purchase made by Lala Battu Mal, and the only question was whether by joining the name of the plaintiff as a co -purchaser with him he intended to make and did thus make a gift of an equal share in the property purchased; I then took note of the fact that the theory of advancement said not to apply in India because the habit of making Benami purchase was rampant among 'the natives' which was the name given to us by the British. It is said that the theory applied only in England. I then noticed the change that has overtaken our country since the first pronouncement of the Privy Council on which the pronouncements of the Privy Council in Gurn Ditta and another v. T. Ram Ditta, A.I.R. 1928 P.C. 127, and Lakshmiah v. Kothandarama : A.I.R. 1925 P.C. 181, were based. I observed that the presumptions, which could be raised more than a century ago, can no longer, be raised in the present day social conditions and the said decisions of the Privy Council must accordingly be applied with some caution. I then took note of the law declared by the Supreme Court in Bhim Singh v. Kan Singh : A.I.R. 1980 S.C. 727 wherein the true test for determining whether a transaction was Benami or not was laid down to be that of intention and instead of presuming that the purchase made by Lala Battu Mal was Benami in so far as the plaintiff was concerned, and that the theory of advancement not being applicable in India, the plaintiff could not be said to have had an equal share in the property on account of his name having been joined as a co -purchaser by Lala Battu Mal unless it were proved that Lala Battu Mal had, in fact, made a gift of an equal share in the property when he purchased it in the plaintiff's name, I looked at the surrounding facts and circumstances in an attempt to find out the intention, with which Lala Battu Mal joined the plaintiffs name as a co -purchaser with him in the sale -deed of the property in question, and on that test according to the view taken by me, the surrounding facts and circumstances all lead to the inference that when Lala Battu Mal joined the plaintiff as a co -purchaser with him and described him as his adopted son living under his guardianship, he intended to make the plaintiff a joint equal owner in the property with him. Dr. Gyan Prakash placed almost the entire judgment of the Supreme Court in Bhim Singh's case before me. The ratio decidendi and the essence of the law declared by the Supreme Court in this case is brought out in paragraphs 15, 16, 17 and 18 of the report of the judgment in the A.I.R. at pages 733 and 734. In paragraph 15, the Supreme Court quoted the following from Mohammad Sadiq Ali Khan v. Fakhr Jahan Begum : 1932 59 Ind. App. I(sic) The purchase of this property was a very natural provision by Baqar Ali for the daughter of his favourite wife, and though there may be no presumption of advancement in such cases in India, very little evidence of intention would be sufficient to turn the scale. The sending of the deed for the inspection of the lady's father -in -law which the Chief Court held to be established, was clearly a representation that the property was hers, and their Lordships agree with the learned judges in the conclusion to which they came. In paragraph 16 the following passage from Manmohan Das v. Mt. Ramdei : A.I.R. 1931 P.C. 175, was quoted: In order to determine the question of the validity or invalidity of the deed of gift in question it is of assistance to consider: the surrounding circumstances, the position of the parties and their relation to one another, the motives which could govern their actions and their subsequent conduct, 'Dalip Singh v. Nawal Kunwar : (1908) 35 Ind. App, 104 (P.C.), always remembering that the onus of proof rests upon the party impeaching the deed. In paragraph 17 the following passage from Jaydayal Poddar v. Mst. Bibi Hazra : (1974) 2 S.C.R. 90 : A.I.R. 1974 S.C. 171, was quoted: The principle enunciated by Lord Macmillan in the case of Manmohan Das (supra) has been followed by this Court in Jaydayal Poddar v. Mst. Bibi Hazra : (1974) 2 S.C.R. 90, where Sarkaria, J. observed thus: It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or established circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami or any part of the serious onus that rests on him, nor justify the acceptance of mere conjectures of surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question, whether a particular sale is benami or not, is largely one of fact and for determining this question, no absolute formulae or acid tests, uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the Courts are usually guided by these circumstances the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the alleged benamidar; (5) the custody of the title deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale. Ultimately, following are the rules propounded by the Supreme Court in paragraph 18 of Bhim Singh's case: The principle governing the determination of the question whether a transfer is a benami transaction or not may be summed up thus: (1) The burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction; (2) if it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary; (3) the true character of the transaction is governed by the intention of the person who has contributed the purchase money and (4) the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motives governing their action in bringing about the transaction and their subsequent conduct, etc. In the present case the transaction was not secretive. The whole of the purchase money was openly provided by Lala Battu Mal and he made the purchase in the joint name of himself and the plaintiff, therefore, there was nothing to be proved so far as the second one of the above principles were concerned. The only question was with what intention Lala Battu Mal had joined the plaintiff as a co -purchaser with him, and that according to principle (3) was determinative of the true character of the transaction; and according to principle (4) the intention had to be gathered from the surrounding circumstances, the relationship of the parties and the motives governing their action in bringing about the transaction and their subsequent conduct. The conclusion arrived at by me in my judgment dated 11th August, 1982 did not rest on burden of proof having been discharged or not discharged by either of the parties. It rested on the facts and circumstances brought out by the evidence on the record, One fact which weighed with me considerably was the fact the purchase was made by Lala Battu Mal in the joint names of himself and the plaintiff and that there was nothing secretive about the transaction. It appears to me that the inference was irresistible that the intention with which Lala Battu Mal could be said to have joined the name of the plaintiff with himself as a co -purchaser although the entire sale consideration was advanced by him was that he, Lala Battu Mal wanted to make a gift of half the property to the plaintiff for whom he had great love and affection and who was living with him. In the result this Court's judgment dated August 11, 1982 is restored and shall be deemed to form part of this judgment. The appeal is allowed. The judgment and decree of the lower appellate court are set aside. A preliminary decree for partition of the property in suit is passed declaring the plaintiff's share therein to 1/2. In the special circumstances of the case, I would direct the parties to bear their own costs throughout. The suit was filed in forma pauperis as the plaintiff was in jail. The appeal before the lower appellate Court was filed by the defendant -respondent. The plaintiff was permitted to file and prosecute the second appeal as an indigent person. That order was, however, withdrawn and the plaintiff has paid the court -fees payable on the memorandum of appeal in this Court. The plaintiff shall pay the court -fees payable on the plaint in the trial court, and, after the plaintiff has done so, the trial Court shall, on a proper application being made in this behalf, proceed to divide the property in suit into two equal portions and pass a final decree accordingly. The parties shall thereafter be out into separate possession over the portions allotted to them respectively. In case the court -fee payable on the plaint is not paid within a reasonable time, the Collector may proceed to recover it from the plaintiff in accordance with law. Deoki Nandan, J.
(3.) THIS is a plaintiff's Second Appeal in a suit for partition.;