The burden of proving that a transaction is benami is on the plaintiff and it must be strictly made out.

1. This is a minor defendant™s appeal, against a decree for specific performance of an executory sale in respect of immovable property, passed by the trial court in a suit brought against him and his father ; the father being shown therein as the guardian of his minor son, the appellant.

2. Respondents 1 & 2, who are the plaintiffs in the suit out of which this appeal has arisen, sued the appellant and respondent No. 3, his real father, in the court of District Judge at Srinagar for specific performance of an agreement to sell a building situated at Maisuma, Srinagar for a total consideration of Rs. 30,000/-, said to have been executed by respondent No 3 in their favour on 19-2-1970, on his own behalf, as well as on behalf of the appellant as his natural guardian, alleging therein that respondent No 3 was the sole owner of the suit property and that the appellant was only a benamidar. It was further alleged that out of the total consideration of Rs. 30,000/- only Rs. 10,000/- remained to be paid to the vendors On the institution of the suit, summons was issued to respondent No. 3 alone, both in his individual capacity, as well as the natural guardian of the appellant This summons was duly served upon him, who appeared in the court and also filed the written statement, both en his behalf as well as on behalf of the appellant, defending the suit inter alia on the grounds ; that the appellant was not a behamidar, but owned half of the suit property ; that even though respondent No. 3 had executed the aforesaid agreement to sell the suit property on his own behalf as well as on behalf of the appellant as his natural guardian, yet, he could not have done so under law and the agreement was, as such, not binding on the minor, and since the suit property was joint and undivided between him and the appellant, the agreement was not binding even on respondent No. 3 ; and that the agreement was without consideration, as respondent No. 3 had received a sum of Rs. 10,000/- only out of total consideration of Rs. 30.000/-

3. This controversy gave rise to a number of issues The parties joined the issues and also led evidence on them The trial court on consideration of the same eventually decreed the suit an payment of the balance of Rs. 10.000/- to respondent No. 3, holding ; that he was the exclusive owner of the suit property and that the appellant was only his behamidar ; that the appellant being merely a benamidar, the agreement that had been ostensibly executed on his behalf as well, did not suffer from any legal infirmity ; and that out of the total sum of Rs. 30,000/-, respondents 1 and 2 had paid a sum of Rs. 20,000/- to respondent No. 3.

4. Aggrieved by the aforesaid judgment, the appellant has challenged the entire decree on the grounds : firstly, that being a minor he was not properly represented in the suit ; secondly, that ha is not a behamidar for respondent No 3, but owns the suit property to the extent of one half of it ; thirdly, that he being admittedly a minor, respondent No. 3 had no authority to execute the executory sale in respect of his share in the property, muchless, when the said executory sale was obviously to his detriment ; fourthly, that the executory sale being void to the extent of one half, it was ipso jure void in its entirety, as the property in respect whereof it was executed was joint and undivided between the appellant and respondent No. 3 ; and fifthly, that the executory sale was without consideration.

5. A preliminary objection was raised by Mr. Raina that respondent No 3 having been appointed by the trial court as guardian-ad-litem of the minor appellant in the suit out of which the appeal has arisen, the appeal on his behalf could have been filed by respondent No. 3 alone, till his appointment was terminated by his retirement, removal or death The appeal not having been filed, by respondent No. 3, but by some one else, it was not maintainable as his appointment as the guardian-ad-litem of th