Koshy, J.

This appeal is field by the husband against the judgment of the Family Court. Thrissur in O.P.No.719 of 1997.

2. O.P.No.719 of 1997 (originally filed before the Sub Court, Thrissur as O.S. No.306 of 1992) was filed by the appellant against his wife for a declaration that the petition schedule immovable properties which were purchased in the name of the wife actually belonged to him. The first item in the schedule was 14 cents of property with a building thereon and the second item is another 14 cents of property. The wife, first respondent herein, filed three cases against the husband seeking return of certain immovable properties as well as gold ornaments. The petition filed by the husband as well as the three petitions filed by the wife were dismissed by the family Court. Since appeal is filed only against the judgment in O.P.No.719 of 1997, we are considering only that matter.

3. It is the definite case of the appellant that he was employed in the Gulf countries. On 30.9.1976 he purchased petition schedule item No.1 and on 6.12.1976 he purchased item No. II, the adjacent property, both in the name of the first respondent. According to the appellant, both the properties were purchased, with his funds. Thereafter a residential building was constructed in the petition schedule item No.1 and fund for the construction was also provided by the appellant. According to the appellant, he is the real owner of the properties and the first respondent – wife is only a benami. It was also contended by the appellant that the building in the property was rented out to the second respondent and after the filing of the suit, the first respondent sold the petition schedule properties to the third respondent. Ext.B20 is the sale deed executed by the first respondent with the third respondent. Since sale deed was executed pendente lite, sale is invalid. There is no contention that Ext.B20 was executed to defeat the rights of the appellant or that the sale consideration is inadequate.

4. The contention of the first respondent before the Family Court was that she was employed in the Post and Telegraphs Department and she purchased the properties in question using her funds. According to her, some amount was gifted to her by the appellant and she had also availed of a loan. Her definite case was that the properties were purchased by her and the building was constructed with her own funds. After constructing the building, it was rented out to the second respondent and she was receiving rent and enjoying the property. She contended that she was not a mere beneficiary or a benamidar but was the real owner of the properties.

5. The Family Court found that the main source of income for purchasing the properties was from the appellant who was employed abroad. Further, in the permission sought for from the Department for construction of the building, the first respondent had declared that the money for construction was from her husband. The Family Court, however found that after the introduction of the Benami Transactions (Prohibition) Act, 1968 (hereinafter referred to as “the Act”), even though the husband can purchase properties in the name his wife or unmarried daughter, there is a presumption that it is for the benefit of the wife or unmarried daughter unless the contrary is proved. The Family Court found that such a presumption was not rebutted and, therefore, the appellant was not able to prove that the transaction was a benami transaction. The Family Court took into account the fact that the first respondent – wife was dealing with the properties as her own and was also receiving rent from the second respondent to whom the building in question was rented out. She was in absolute possession and enjoyment of the properties after purchase and, therefore, the claim of benami transaction was found against the appellant.

6. The main contention of the appellant is that such a pleading based under Section 3(2) of the Act was not raised in