1. In a benami transaction, the burden of proof lies on the person who asserts that a transaction is a benami transaction. 2. Amongst the Mahommedan Law there is no presumption of jointness.

M.Y.EQBAL, J.

1. The Defendants-Appellants have filed this appeal under cl. 10 of the Letters Patent of the Patna High Court Rules, challenging the judgment and order passed by the learned single Judge of this Court in F.A. No. 130 of 1982 (R) whereby and whereunder the learned single Judge reversed the judgment and decree passed by the trial Court and decreed the suit for partition in respect of part of the properties.

2. The plaintiffs-respondents filed P.S. No. 8 of 1976 claiming half share in the suit properties left by Late Muslim Khan. The said suit was dismissed by the learned 2nd Additional Subordinate Judge, Giridih, in terms of the judgment and decree dated 23-5-1982.

3. The brief facts of the case are as follows :-

The plaintiffs-respondents filed the aforesaid suit claiming partition of half share in the suit properties allegedly left by Late Muslim Khan and after his death they inherited the same according to the law of inheritence under the Mahomeddan Law. From the geneological table given in the plaint as also in the impugned judgment, it appears that Late Muslim Khan had two wives, namely, Most. Moriam and Bibi Sitabo. The defendants-appellants are the sons, daughters and order heirs from the first wife of Late Muslim Khan, while the plaintiffs-respondents are the heirs and successors from the second wife of Late Muslim Khan. The plaintiffs case was that Late Muslim Khan who was a business man and he died and possessed the ancestral residential house bearing Holding No. 311 in Ward No. 4 of Giridih Municipality and another house bearing Holding No. 337 of Ward No. 4 of Giridih Municipality. He had also acquired two other houses in Giridih town in the name of his daughter-Kulsum Bibi. The plaintiffs further case was that Muslim Khan died in the year 1925 and after his death the houses bearing Holding Nos. 311 and 337 besides the family business came in possession of the four sons of Muslim Khan from the above named two wives. The plaintiffs further pleaded that the two houses bearing Holding Nos. 29 and 261 which were acquired in the name of Kulsum Bibi remained in her possession till her death in the year 1947. The plaintiffs case was that the two sons from the first wife, namely, Habib Khan and Abdul Aziz Khan, were clever and shrewed persons and in due course took complete control of the business of the joint family taking advantage of the simplicity of their step brothers-Rahim Khan and Abdul Zabar Khan, father of the plaintiffs. Having come in control of the family business, they received the income from such business as also rent from the tenants and utilised such income for acquiring three other houses bearing Holding Nos. 468, 596 and 610 in Giridih town. According to the plaintiffs, therefore, the three houses were also acquired by the joint family business. It is further stated that even Holding Nos. 29 and 261 which were acquired by Late Muslim Khan in the name or her daughter Kulsum Bibi, came in possession of the sons of Late Muslim Khan after the death of Kulsum Bibi, which took place in the year 1947. The ploaintiffs, therefore, claim 8 Annas share in the house properties mentioned in the Schedule of the plaint. The plaintiffs also challenged the transfer made by the defeniants in respect of Holding Nos. 261 and 596.The defendants-appellants contested the suit by filing written statement denying and disputing each and every allegations made in the plaint. The defendants denied the existence of any joint family business. It was also denied that Late Muslim Khan inherited the ancestral houses bearing Holding Nos. 311 and 337 or that he had acquired Holding. Nos. 29 and 261 in the name of his daughter-Bibi Kulsum. It was also denied that after the death of Muslim Khan, Holding Nos. 311 and 337 came in possession of his four sons. The defendants categorically denied that any property was purchased from the income of the joint family business or the income derived from rent.The defendants case