The burden of proof in a benami transaction case lies on the party who asserts that the transaction is benami.

( 1 ) THE plaintiff has alleged that his father, Baul Chandra Addy, was a rich man. He acquired considerable properties and had a very lucrative business in jewellery and money lending etc. at 50, Karaya Road and 40/2, Beltala Road, Calcutta. After the death of the plaintiff's mother, which took place on the 23rd March 1923, Baul Chandra became indifferent and thus his properties and business were left in the hands of his sons, Nagendra Nath (defendant no. 1) and Pulin Behari (defendant no. 2 ). Thus they came to possess their father's ornaments, valuable articles, documents etc. While Pulin was in charge of the properties, the premises Nos. 44, 46 and 48, Beck Bagan Row, Calcutta, were acquired by Baul Chandra in the benami of his son, Pulin Behari. Baul Chandra built valuable structures thereon. Those properties were in the join t possession of the parties. During the riot which, broke out in 1946, the jewelleries etc. were left in the custody of Pulin Behari and he is bound to account for the same. Baul Chandra died on the 14th March, 1953. But long before his death he became mentally feeble and unsound. His eyesight became defective and he suffered from mental aberration. By practicing fraud, misrepresentation and undue influence, Rabindra Nath, defendant no. 3, one of the sons of Baul Chandra, obtained a false and fraudulent deed of gift (dated 11-4-1951) regarding the premises nos. 43 and 97, Karaya Road, Calcutta. That transaction is void and it was never acted upon. Those premises are the joint properties of the parties. The plaintiff has instituted the suit for partition.

( 2 ) DEFENDANT No. 1, Nagendra Nath, has filed a written statement stating that the properties at 44, 46 and 48, Karaya Road are the self acquired properties of Pulin Behari.

( 3 ) DEFENDANT No. 2, Pulin Behari, has put in a written statement denying the plaintiff's allegations. His defence is that the himself purchased the properties of premises Nos. 44, 46 and 48, Beck Bagan Row with his own money and his father contributed nothing in making the purchase.

( 4 ) DEFENDANT No. 3, Rabindra Nath has filed a written statement stating that the deed of gift executed by his father is a valid one. There was no forgery, fraud, misrepresentation or undue influence.

( 5 ) THE learned Subordinate Judge framed issues inter alia on the questions whether the premises nos. 44, 46 and 48, Beck Bagan Row were acquired in benami by Baul Chandra, whether the deed of gift was a void document and whether the defendants were liable to render any accounts. After considering the oral and documentary evidence he arrived at the findings that the premises nos. 44, 46 and 48, Beck Bagan Row were not the self acquired properties of Pulin Behari. Baul Chandra was the real purchaser. The deed of gift was validly executed in favour of Rabindra Nath. He had mental capacity to execute the deed of gift. He stated that in view of th4 evidence given by the plaintiff, he was bound to render accounts for the period after the 14th March, 1953, when Baul Chandra died. Against the said decision the defendants No. 2 has preferred the present appeal.

( 6 ) THE plaintiff has filed a cross-objection stating that the deed of gift executed by his father is vitiated by fraud, undue influence and misrepresentation. He is not entitled to render any accounts. The ornaments and assets had been misappropriated by Pulin Behari and hence, he is entitled to recover the same.

( 7 ) IT has been contended on behalf of the appellant that the question of onus was not properly appreciated by the learned Subordinate Judge. In view of the decision of Venkatram Ayyar, J, in the case of Meenakshmi Mills Ltd. v. Commissioner of Income Tax in 1956 S. C. A. 1139, there are two classes of benami transactions, one in benamdar's name and that is a real transfer intending that title would pass. The other classes of transactions are incorrectly called benami because they are sham tr