In cases alleging fraud, collusion, or benami transactions to defraud creditors, the burden of proof rests on the claimant. A court's decision must be based on legal grounds established by legal testimony rather than mere suspicion.

Lord Phillimore :-

The circumstances of this case ate as follows : One Chhatrapat Singh, who was a land owner in Bengal, was also engaged in commercial transactions, as was his father before him. Both became involved in difficulties, and both at times resorted to various devices for protecting themselves and their property against their creditors. In 1903 the first respondent, who was a creditor of Chhatrapat and whom it is convenient to call the decree-bolder, issued an execution against seven properties collectively known as the Sukhsena Group, one of these being the Mahal known as No. 429. Thereupon Chhatrapat's wife, Jamaber Kumari, put in a claim to the properties, saying that they were heirs, and prcducing title-deed vesting them in her. Her claim was disallowed in the local Court as regards six of the properties, as being benami. As regards the seventh, No 429, it fell under the same conditions, and there is no doubt that in the opinion of the Judge she was as much a benamidar for her husband in respect of this as in respect of the other six; but it happened that it was not within his district or his jurisdiction and therefore be could pronounce nothing upon it. In respect of the other six, Jamaher Kumari appealed to the High Court and her appeal was dismissed. The decision in the local Court was given on the 20th July, 1903 and the decision in the High Court on the 4th January, 1904.

On the 30th July 1904, the decree-holder endeavoured to execute his decree in the proper Court against the Mahal No. 429, when he was met by a claim put forward on behalf of the father of the present appellant. It is convenient to call the father the purchaser. Certain proceedings thereupon took place, the upshot of which was that the decree-holder was not allowed to execute his decree summarily and had to bring the action which is the subject of the present appeal.

The case on behalf of the purchaser was simply that on the 6th July, 1904, at a time when the property was not under attachment, be bought Mahal No. 429 for one lakh and ten thousand rupees, paid for it, took his conveyance and entered into possession of the property.

The case on behalf of the decree-holder was that the transaction was a sham and that the purchaser was only a benamidar for Chhatrapat

The litigation has taken a singular course. The plaint to which not only the purchaser, but Jamaher Kumari, and Chhatrapat, were made defendants, after stating the decree-holder's title as execution creditor, proceeded to narrate various assurances by which the property in Mahal No. 429 had passed to Jamaher Kumari; and then averred that she held it as benamidar for Chhatrapat, and that she and Chhatrapat had executed the deed whereby they assumed to sell it to the purchaser. It then averred that the conveyance was a fraudulent document without consideration created by Chhatrapat in collusion with his wife and concurred in by the purchaser, who was aware of the indebtedness and evil motive of Chhatrapat and became his benamidar for the purpose of helping him in his wrongful endeavour to defraud the decree-holder. The defence denied the allegations of fraud and collusion and averred that the defendant was a bona fide purchaser for value without notice, having taken a conveyance from both husband and wife, so that it did not matter which of the two was the real owner. Upon this the learned Subordinate Judge framed the following issue :-

"Is the kobala executed by defendants Nos. 2 and 3 in favour of defendant No. 1 collusive, fraudulent and without consideration? Is defendant No. 1 a mere benamidar of defendant No. 3? Was the kobala executed to delay or defraud the creditors of defendant No. 3?"

The burden of proving this issue being upon the plaintiff and none-the-less so because he alleged fraud and collusion, he called three witnesses and no more. (Evidence was here discussed and the conclusion was as follows :-) There are some elements of suspicion. It is for these reasons that their L