A benamidar can maintain a suit for partition, even if the real owner does not intervene or oppose the suit.

JUDGMENT :- The point of law raised for admission in this second appeal and which alone can be raised as the findings of fact based upon acceptable and relevant evidence are concurrent and binding upon me is that a benamidar notwithstanding the non-intervention and non-opposition of the real owner cannot maintain a suit for partition and that this objection can be raised by the other parceners or co-owners.

2. The fact that merely because the appellant has shown that an arguable or prima facie point of law arises in appeal is not a ground for admission, has been expounded by the Law Commission in its 14th Report of the Reform of the Judicial Administration Vol. 1 Chapter 16 page 390. The Court has further to be satisfied that the decision of the lower appellate Court on a point of law is erroneous and that it is necessary in order to do justice between the appellant and the respondent that a further hearing should be given to both the parties.

In fact the Law Commission has gone to the extent of suggesting that a statutory requirement should be made providing that the judge admitting the appeal should state the point or points of law which arise for consideration in the second appeal and that the High Court should in its discretion even be permitted to go further and order that the appellant should be heard only on the point or points of law stated by the judge admitting the appeal. It is to be hoped that this contingency may not arise by ourselves subjecting to "stricter and better scrutiny" the second appeals at the stage of admission because if such a statutory requirement is made, only a negligible percentage of second appeals will get admitted and a valuable corrective in reserve conferred under S. 100 of the Civil Procedure Code will be greatly lost to the detriment of the litigant public and efficient administration of Civil Justice.

3. The point of law taken by the learned advocate Mr. N. C. Raghavachari and in regard to which I had the advantage of Sri K. Parasaran assisting me as amicus curiae is neither an arguable point of law nor a prima facie good point of law since the law on the subject has become well settled though the case law is sparse on the subject and the principles relating thereto have not been comprehensively expounded.

4. The settled law on the subject can be gathered from the elaborate discussion in "The Law of Benami" (1923) by R. Mookerjee, second edition at page 306 and the following, "The Law of Benami Transactions in India" by A. Ghosh (5th Edn. 1955) (Eastern Law House Ltd.. Calcutta) Chapter XV "Benamidars right of suit" at page 146 and the following, and in the "Law of Benami Transactions" (1958 Edn.) by Venkoba Rao (Law Book Company, Allahabad) Chapter VII, "Suits by and against Benamidars" page 190 and following.

5. The position and status of a benamidar is not merely that of an alias or even an agent of the real owner. He is a person whom the owner for purposes of his own which are not necessarily fraudulent has chosen to represent his estate to the outer public and whom he has furnished with the indicia of ownership to enable him to do so effectively. It is always open to the true owner to come out into the open and prick the bubble of apparent ownership but till then benamidars suit cannot be resisted on the ground that he has no title or right of possession which that person has given him which is apparently enough to support the suit. A clear distinction has now been drawn between a benami and a sham transaction in Sree Meenakshi Mills Ltd., v. Commr. of Income-tax, (S) AIR 1957 SC 49 at p. 66.

6. The view that the benamidar having no beneficial interest could not sue or be sued though accepted in former days is no longer accepted as sound. The modern view is that the benamidars as trustees are quite competent to sue and be sued and that a decision in the suit by or against him is as much binding on him as on the beneficial owner.

It is well known that benami purchases are common in