Documents showing that consideration was paid by both purchasers.

Srinivasan, J.

The defendants are the appellants, the suit was filed by the respondent for partition and separate possession of her 1/2 share in the plaint schedule mentioned property and for injunction restraining the second defendant from interfering with the peaceful possession of the plaintiff. The case as set out in the plaint is as follows: The plaintiff is the daughter of the first defendant and the second defendant is the plaintiffs brother. The plaintiff was married to one Selvaraj Nadar on 28. 1976. He was a partner in the family business run in the name and style of “Vairamani and Brothers”. The said business was closed in the year 1978and in a family arrangement the business was allotted to the plaintiffs husband. Thereafter the plaintiffs husband changed the name of the business as “S.Kaladevi Dhall Mills” and it was being run by him as a sole proprietor. That was carried on till 33. 1983. The plaintiffs father died on 110. 1981. When the plaintiffs husband wanted to purchase lands with the money in his possession in 1980 the father of the plaintiff also wanted to contribute one-half and agreed to purchase the property in the joint names. Accordingly, the properties were purchased in 1980 in the names of the plaintiff and the first defendant, her mother. Thus, the plaintiff is entitled to 1/2 share in the properties, the second defendant has no interest in the properties. But he is trying to interfere with the possession of the plaintiff. The title of the plaintiff to the half share is being denied and the plaintiff is obliged to file the suit praying for the reliefs set out already.

2. The second defendant filed a written statement. It is stated in the written statement that the plaintiffs husband had no funds either to run the business or to purchase the property. On the other hand, the second defendant had accumulated about Rs.3 lakhs by doing business from 1970 to 1978 and the properties were purchased only with those funds, the properties were purchased in the joint names of the plaintiff and the 1st defendant. The plaintiff cannot claim any right in the suit property and the suit is liable to be dismissed.

3. The trial court held that no part of the consideration was advanced by the plaintiff or her husband and the possession of the properties was with the defendants. It is also held that the original title deeds were with the defendants. However, the trial court taking note of passing of the Benami Transactions (Prohibition) Act, 1988 and following the judgment of the Supreme Court in Mithilesh Kumari v. Prem Behari Khare, A.I.R. 1989 S.C. 1247, held that it was not open to the first defendant to contend that the properties were purchased benami in the name of the plaintiff also. Consequently, he held that the plaintiff was entitled to half share in the properties and passed a preliminary decree accordingly. He dismissed the prayer for injunction.

4. Aggrieved defendants have preferred this appealand the plaintiff has filed a memorandum of cross-objections. The plaintiff while praying for a decree for injunction has attacked the findings of the learned trial judge which are against her.

5. We have gone through the evidence and the judgment of the court below. At the outset it must be pointed out that the trial court has failed to apply the relevant test to consider whether a transaction is benami or not. There are several decisions laying down the various tests to be applied in such transactions whenever such question arises. It is sufficient to refer to the judgment of a Division Bench of this Court in Ponnuswamy Nadar v. Narayan Nadar, (1976)1 M.L.J. 1. The Division Bench held that the burden of proof lies heavily on the person who claims against the tenor of the document to show that the ostensible owner was a mere name-lender and the property was in fact purchased only for his benefit. The following passage in the judgment would be relevant which needs extraction:

“It has been held repeat