R. Basant, J.

Has the appellant succeeded in establishing that Ext.B5 transaction is a ‘benami transaction’? If so, has he succeeded in “proving the contrary” as required and insisted by Section 3 of the Benami Transaction (prohibitions) Act, 1988 (hereinafter referred to as ‘the Act’)? These are the only serious question that come up for consideration in the light of the arguments specifically advanced before this Court by the learned counsel for the appellant.

2. The relevant and vital facts first. The appellant and the respondent are spouses. Their marriage was dissolved by mutual consent during the pendency of this appeal as per an order passed under Section 13B of the Hindu Marriage Act in Mat Appeal No,207/2004 on 27-10-2009. Their marriage took place on 21-1-1986. They resided together for some period of time after such matrimony. There is a serious dispute about the date on which separate residence commenced. Admittedly, when separate residence commenced, whether it be in January 1987 as contended by the appellant or on 17-12-1986 as contended by the respondent in this proceedings or on 9-11-1986 as contended by the respondent in Exst.A4, it is not disputed that such separate residence started after she became pregnant and before the child was born on 5-3-1987. Subsequently, the spouses have not been able to settle their dispute and resume cohabitation. Such separate residence admittedly continues tell this date. We, after laborious attempts, were finally able to induce the parties to arrive at a settlement and dissolve the marriage as per the order in Mat appeal No.207/2004 referred above.

3. On 15-12-1986 as per the original of Ext.B5, 12.75 cents of land were purchased in the name of the respondent. Straightway we note that the averments in the said document reveal clearly that the sale consideration was paid by her. Admittedly, there is nothing intrinsically available in the document to suggest that payment was made by any one other than the respondent herein.

4. After the parties started separate residence, the appellant/husband initiated proceeding for restitution of conjugal rights. Shortly after that proceeding was initiated, the respondent/wife initiated the present proceedings O.P.No.165/1997. Various prayers were made in the petition. Primarily, a declaration of a title over the property acquired under Ext.B5 was claimed. Recovery of possession of that property which was in the possession of the appellant in his capacity as the husband of the respondent was also claimed.

5. The appellant/husband entered appearance and resisted the claim. According to the learned counsel for the appellant, he had raised a plea that the acquisition was made by him with his funds benami in the name of the respondent. The learned senior counsel for he respondent points out that such a specific plea was not at all raised in the written statement.

6. Be that as it may, it is clearly stated and contended in the written statement, that the acquisition was made in the name of the respondent with the funds advanced by the appellant. The appellant contended that the respondent/his wife was only a name lender and trustee on behalf of the appellant. A plea that it was a benami transaction, we note, was not specifically raised in the written statement or in the appeal memorandum. The claim for recovery of possession was resisted on the further ground that the appellant is not in possession of the property and his brother – P.W.2, is in possession of that property asserting leasehold rights under Ext.A6. The neighbours had not been arrayed as parties and therefore the claims of recovery of possession and putting up a boundary (which was also claimed) were resisted on that ground.

7. Parties went to trial on those contentions. The appellant examined himself as P.W.1 His brother - the alleged lessee was examined as P.W.2. The respondent/plaintiff examined herself as RW1 (not P.W.3 as shown in the appendix to the impugned judgment).