A benami transaction, where property is purchased in the name of one person but is actually owned by another, is prohibited under the Benami Transactions (Prohibition) Act, 1988. A person cannot challenge a benami transaction unless they fall within one of the exceptions specified in the Act.

1. This Second Appeal is by the plaintiff who has lost his case for partition in both the courts below.

2. According to the plaintiff the suit first schedule house property and the second schedule movable properties belonged to his father Mohammed Ibrahim. He is the son of Mohammed Ibrahim through his deceased third wife. Defendant is his fourth wife. Mohammed Ibrahim purchased the site of the first schedule property benami in the name of his fourth wife-the defendant with his own funds and then he constructed the superstructure and he was paying tax for the same. Mohammed Ibrahim died on 14.5.1975. The plaintiff who was a Police Officer was away from their place on duty and therefore the defendant was residing in the house. The second schedule movable properties which are in the house were left by Mohammed Ibrahim. When the plaintiff wanted partition of the properties the defendant refused. Therefore the suit for partition of his 7/8 share.

3. The defendant denied that the site was purchased by Mohammed Ibrahim benami in her name and contended that she purchased it for Rs. 100/- with her own funds on 29.11.1954 under Ex. B23. She denied that the house was constructed with the funds of Mohammed Ibrahim and she contended that it was with her own funds she put up the superstructure. She further contented that the assessment of the house which was in the name of Mohammed Ibrahim in 1973 was changed into her name at the instance of Mohammed Ibrahim himself. She further contended that the second schedule movable properties belonged to her and the plaintiff has no right in it. On these grounds she prayed for dismissal of the suit.

4. The trial court on consideration of the evidence held that it is not true that the site of the house was purchased benami in the name of the defendant by her husband Mohammed Ibrahim and it was purchased by the defendant herself with her own funds. It further held that it is not true that it was Mohammed Ibrahim who put up the construction. It also held that there is nothing to prove that Mohammed Ibrahim was the owner of the movables. On these grounds the trial court dismissed the suit. On appeal by the plaintiff the appellate Court concurred with the findings of the trial court and dismissed the appeal.

5. Now in the second appeal it is contended that the findings of the courts below that the site was not purchased by Mohammed Ibrahim benami in the name of the defendant is erroneous and contrary to the evidence. But I do not think that this plea is open to the plaintiff in view of the Benami Transactions (Prohibition) Act, 1988. Under S. 4 of the Act such a plea is prohibited. It is however contended by Mr. T. Arulraj, learned counsel for the plaintiff that the plaintiffs case comes under S. 4 (3)(b) which is one of the exceptions to the general rule of Prohibition. As per this section the general prohibition will not apply where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity. But it must be remembered, the suit property stands in the name of the wife who cannot be said to be standing in a fiduciary capacity as envisaged in the said S. 4(3)(b). Therefore there is no merit in the contention of the learned counsel.

6. Even otherwise, on facts, both the Courts below have found that the site has not been purchased by Mohammed Ibrahim in the name of the defendant and it has been purchased by her with her own funds. Further the Courts below have, on consideration of the evidence, concurrently found that the defendant had sufficient funds to purchase the site, the sale price being Rs. 100/-. This concurrent finding cannot be interfered with in the second appeal. It is contended by the learned counsel that Exs. A1 and A2 have not been considered by the Courts below. But both these documents are of no use to the pl