The onus of proving that a transaction is benami lies on the person who alleges it.

JUDGMENT :

S.K. Ray, J. - This appeal is by the Plaintiff from the reversing decision of the lower appellate Court and arises out of a suit for declaration that the suit house described in the Schedule 'A' of the plaint belongs to the Plaintiff in which the Defendants 3, 4 and 5 have no manner of right, title and interest and that Defendants 1 and 2 cannot attach and sell the same in execution of any decree obtained by them against Defendants 3, 4 and 5 and for eviction of Defendants 3 and 4 therefrom and for recovery of possession of the portion of the house in occupation of Defendants 3 and 4.

2. The Plaintiff's case is that the disputed property belonged to one Munilal and Defendants 3 to 5 were tenants under him in respect of the suit house. Plaintiff purchased the house from Munilal for a consideration of Rs. 5000/- by a registered sale deed dated 1-8-1956 (Ex. 4). Defendants 3 to 5 continued as tenants under the Plaintiff thereafter. Defendants 3 and 4 refused to pay rent when demanded by the Plaintiff. Defendants 1 and 2 obtained a money decree against Defendants 3 and 5 and levied execution of the same and put the disputed house under attachment. The Plaintiff filed a claim case under Order 21 Rule 58, CPC which is Misc. Case No. 52/60. Before disposal of this claim case the Plaintiff has filed the suit for the aforesaid reliefs.

3. Defendants 3 and 5 remained ex parte. Defendants 1, 2 and 4 filed a joint written statement. Defendants 3 and 5 are brothers and Defendant 5 is the brother-in-law (sister's husband of the Plaintiff). Defendants 3 to 5 were carrying on jointly tobacco business and wanted in that connection the disputed, house site (without the house) for constructing house therefore for their business. To effectuate that object Defendants 3 and 4 filed, an application before the Zamindar on 15-2-1949 to take lease of the disputed site. The Zamindar received a salami of Rs. 150/and agreed to lease the suit site. In the meantime, Defendants 1 and 2 had filed a suit against Defendants 3 and 5 in March 1949. In order to avoid any future possibility of the disputed site being attached and sold in execution of the future money decree that may be passed against them, the lease, was obtained benami in the name of Munilal on 18-4-1949. Thereafter, Defendants 3 to 5 constructed the suit house and are in possession of the same in their own right. Munilal has, however, admitted the benami character of the lease deed in a letter dated 4-6-1952 written by him to Defendant 5 and accordingly, he is estopped from disputing the benami character of the lease deed in his name. Defendants are not tenants under the Plaintiff and the suit is barred by limitation. This is the defence story put forth in the written statement.

4. The principal question which arose for determination in the suit was whether Munilal. (p.w. 3) was a benamidar for Defendants 3 to 5. In order to determine the question whether the transaction of lease was, benami or not the trial Court considered and examined the following five judicially recognised tests with reference to the evidence adduced by the parties. The tests examined were:

(a) source from which consideration was paid; (b) possession;

(c) motive;

(d) previous and subsequent conduct; &

(e) custody of the document.

In dealing with the question of benami he rightly placed the onus of establishing the lease transaction to be benami on the contesting Defendants and acted on the principle that where a plea of benami transaction is raised, the ostensible title cannot be displaced except on cogent and clear proof of the benami character of the impugned transaction. The first question the trial Court examined was the genuineness of the application for lease purported to have been made before the Zamindar by the Defendant 5 (Ex. A). He found on consideration of the testimony of d.w. 1 that the defence case as to the amount of najarana; paid is discrepant, and that the defence case of perpetual lease made out in the