In a benami transaction, the burden of proof is on the person claiming to be the real owner to establish that he had the funds to purchase the property or that he had the capacity to raise credit in the market to purchase such property.

RAMAPRASADA RAO, J. :- The plaintiff in O. S. No. 45 of 1966 on the file of the Subordinate Judge, Tanjore, is the appellant. The plaintiff's case may be briefly stated as follows :

2. In the properties described in A to C schedules, the plaintiff has a 2/3rd share, and the first defendant, a 1/3rd share, and though ostensible title in such properties stands in the name of the second defendant, the plaintiff and the first defendant are the real owners thereof. Ever since the purchase of the said properties under Exs. B-9, B-12, B-17 and B-18, the plaintiff was exercising the right of joint possession along with the first defendant to the exclusion of the second defendant. Therefore, the plaintiff is entitled to a partition and separate possession of his 2/3rd share in the A to C schedule properties.

3. The first defendant is the husband of the second defendant. In his written statement, he would state that the properties described in schedule A and B were purchased by the second defendant under Exs. B-9 and B-12 in 1941 and 1942, from her own funds and that neither himself nor the plaintiff has anything to do with the title or possession of those properties. As regards the C schedule properties, it is stated that they were purchased originally under Exs. B-17 and B-18 in the names of the plaintiff's son-in-law, one Syed Mohamed, and one Abdul Kadir, sister's husband of the second defendant. According to the first defendant, the purchases were on behalf of the second defendant and the funds were provided by her. Further, it is claimed in the written statement of the first defendant that Abdul Kadir released his right, title and interest in the properties in 1946 under Ex. B-20, and that Syed Mohamed and the second defendant partitioned the said properties among themselves under Ex. B-21 in 1962. In those circumstances, it is stated that the plaintiff has no interest in the properties.

4. The second defendant did not go into the box; but filed a written statement denying the plaintiff's claim to the suit properties and contemporaneously asserted that she acquired these properties from her own funds, that she was in possession of the properties, and that no one, including the plaintiff, ever exercised any right of possession over the suit properties. In any event, she would state that, as regards the C schedule properties, Syed Mohamed is a necessary party to the suit

5. In these circumstances and in the light of the pleadings as above, the following issues were framed by the learned trial Judge :-

1. Whether the plaint A to C schedule properties were purchased between 1941 and 1942 by the plaintiff and the first defendant nominally in the name of the second defendant from their partnership assets?

2. Whether the plaintiff is entitled to 2/3rd share?

3. Whether the suit has been properly valued and proper court-fee paid?

4. To what reliefs are the parties entitled?

Before we deal with the subject proper, it is necessary to refer to the business said to have been carried on by the plaintiff and the first defendant in Jaffna. According to the plaintiff, he started the business in 1918, inducted the first defendant thereto some time later and they both were carrying on the business under the name and style of M. S. M. It was brought out, in the course of evidence, that there was another partner, who was examined as P.W. 4 in the case and who was also associated in the business: but, as in the view we intend taking of the matter and as this aspect was also not touched by the learned counsel for the appellant, this need not stop us from considering the other available materials. It is common case of the parties that the partners of the firm of M. S. M. had been adjudicated insolvents in I. P. 3 of 1934 on the file of the District Court, West Tanjore. It was also brought out, before the insolvency court, that the plaintiff did not disclose any property of his other than those disclosed in the schedule of assets probably filed along wi