JUDGMENT

P. K. MISRA, J. — Plaintiff has filed this appeal against a confirming decision. The suit was filed for declaration of the exclusive right of the plaintiff over the disputed properties and for declaration that the licence issued in favour of defendant No. 1 is fraudulent and for confirmation of possession. The dis¬puted properties, as described in ‘A’ Schedule are certain ma¬chinery. The case of the plaintiff is as follows :

Defendant No. 4 is the father-in-law of the plaintiff and defendants 1 to 3 are her brothers-in-law being the younger brothers of her husband. From her own fund and by incurring loan from the United Commercial Bank, the machinery in question had been purchased by the plaintiff and had been installed for the purpose of running a huller and mill. Since the plaintiff’s husband and other defendants were remaining in joint family and there was good relationship among themselves and defendant No. 1 was sitting idle after graduation without any employment the plaintiff had handed over the papers for obtaining licence from competent authority for running the huller, but defendant No. 1 fraudulently obtained licence in his name by practising fraud. However, plaintiff herself was looking after the running of the mill and the huller from the date of installation. After dissen¬sion arose in the family, the defendants tried to deprive the plaintiff from her right over the disputed properties thus forc¬ing the plaintiff to file the suit.

2. Defendants in their joint written statement denied the allegations made in the plaint. It was pleaded by them that the disputed properties had been purchased on behalf of the joint family by incurring loan. The loan had to be incurred in the name of the plaintiff as defendant No. 4 was a Government servant and defendants 2 and 3 were minors and defendant No. 1 was an unem¬ployed person. However, it was stated that the mill house was constructed by defendant No. 4 from out of the joint funds and by selling joint family property and the disputed machinery were not the exclusive properties of the plaintiff. It was further pleaded that licence was obtained in the name of defendant No. 1 for carrying on the business, which was, in fact, a joint family business.

3. The trial Court found that the parties were joint at the time of acquisition of the properties and there has been no partition by metes and bounds even though subsequently dissen¬sions had arisen. It was further found that the properties claimed by the plaintiff had been purchased out of the joint family funds and as such, the same were joint family properties. It was further found that defendant No. 1 was running the mill on behalf of the family and plaintiff was not the exclusive owner.

The lower appellate Court while affirming the aforesaid findings also negatived the contention of the plaintiff relating to applicability of the Benami Transactions (Prohibition) Act, 1988.

4. The learned Counsel appearing for the appellant has raised two submissions :

(i) The claim of the defendants is barred under the provisions contained in the Benami Transactions (Prohibition) Act, 1988; and

(ii) Even assuming that such bar is not applicable, the finding that the properties has been acquired out of the joint family funds is not supported by evidence on record and cannot be accepted, as the Courts below have relied upon irrelevant and inadmissible evidence to come to a conclusion that the properties were joint family properties.

5. The appellant has relied upon the provision contained in Section 4(2) of the Benami Transactions (Prohibition) Act, 1988 (in short, the “Act”), which is extracted hereunder :

“4. Prohibition of the right to recover property held benami -

(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such proper¬ty.

(2) No defence