A deed of gift executed by a real owner claiming the Court purchaser to be a benamdar is not void ab initio and cannot be ignored by the court in determining the title to the property in a partition suit.

( 1 ) THIS is an appeal by the plaintiff from a decree of dismissal of their partition suit which was filed in 1963. The decree was passed in 1973.

( 2 ) PARTITION was claimed of about five cottahs of land on the basis that the parties to the suit were the heirs of one Kulalakshmi Sen who had bought the property at a Court sale in or about 1934; the said Kulalakshmi Sen died thereafter in the later 19308s.

( 3 ) RESISTANCE to partition was put up by those defendants/respondents who are now the clients of Mr. Chowdhury. They were the sons of the eldest son of Kulalakshmi by her husband Biseswar. These resisting defendants put forward the claim that the property had been purchased benami and the real ownerwas biseswar himself who had provided the purchase money, and who had gifted the property to them in 1967.

( 4 ) THE suit was tried on evidence. Biseswar was fortunately alive at that time and he gave evidence, although on commission taken at Allahabad it is on record that the then learned Registrar of our Court sold in 1934 about eight cottahs of land, comprising also of the five cottahs in the present appeal for a total sum of Rs. 1900/- only. Out of this Rs. 475/- was deposited on the date of confirmation of sale and the balance money was thereafter paid in time. Biseswar gave evidence that he worked in the postal department during his service career and that he sent the money under insurance, so that the purchase could be made. Mr. Dasgupta appearing for the appellant/plaintiffs was at pains to point out that there were serious discrepancies in the evidence about sending money, that Biseswar once said that he sent the whole amount and at another time said that he had sent only Rs, 1400/ -.

( 5 ) THE fact remains that Biseswar did send the largest part of the consideration. The evidence also shows that at that time Biseswar's son-in-law jiten wanted to buy part of the land and become sharer therein, and as such, he provided Rs. 500/ -.

( 6 ) AS against this a son of Kulalakshmi gave evidence that he saw his mother carrying money in a box. considering the entirety of the evidence the trial judge has accepted the case of Biseswar. It is impossible to upset that finding and enter a different finding in the Court of appeal, holding that Biseswar was telling a complete set of lies about sending money.

( 7 ) WE have examined the judgment under appeal and we find that the learned Judge has correctly enumerated the factors which determine his benami. He has placed due importance on the factors of possession of title deed, possession of property, dealing with the property and such like. Biseswar also named the contractor who built the house on the property at his behest, his name being Pulinbehari Ghosh.

( 8 ) THE benami aspect of the case, which was the main issue in the Court below did not pose much of a problem before us. Mr. Dasgupta, however, raised a new point in appeal and said that because of Section 66 of the Code of Civil procedure it would not be permissible forthe respondents/defendants today to set up a case of benami, against a Court sale so as to defeat the plaintiffs claim for partition. The said section, as amended by the 1976 Act, is set out below :-"in Section 66 of the Principal Act, in sub-section (1) the following shall be inserted at the end, namely-"and in any suit by a person claiming title under a purchase so certified, the defendant shall not be allowed to plead that the purchase was made on his behalf or on behalf of someone through whom the defendant claims. "

( 9 ) THE decree being passed in 1973 and the amendment prohibiting the setting up of benami in defence being introduced on 1976, a point arose whether such prohibition of 1976 would have to be taken into account by us in appeal. In this regard Mr. Dasgupta gave us the Code of Civil Procedure (Amendment) Act, 1976 and placed strong reliance on Section 97 sub-section (9) of the said Act:"97. (3 ). Save as otherwise provided in sub-sec