JUDGMENT Yorke, J. - This is a first appeal in a suit decided as far back as the 25th March 1935. The Plaintiff Mst. Siddiqa Begum is the second wife of one Abdul Razzaq Khan deceased and was married to him in September 1931 Abdul Razzaq khan had by his first wife a son Abdul Jabbar Khan born about 1906, who is the Defendant No. 1 of this case, and two daughters Mst. Zubeda Bibi and Mst. Habib un-nisa Bibi born about 1910 and 1902, who are the Defendants Nos. 2 and 3. The Plaintiff sued for partition of a 5/40 share in a residential house situated in village Dagdagwa in the Azamgarh district and also for partition of a house in mahalla Mot-barganj of Azamgarh town in which she claimed a half share, as also a 5/40 share, upon the ground of "hiba-bil-ewaz" and inheritance respectively. The Plaintiff subsequently gave up her suit in regard to the house in village Dagdagwa stating a separate suit would be instituted in regard to that property. The claim under which the Plaintiff sought partition of the half share in the house No. 2 now in suit was founded upon her dower debt, it being alleged that the amount of the dower debt was Rs. 15,000 and that in part satisfaction of the dower (sic) Abdul Razzaq Khan on the 22nd July 1932 executed a deed of transfer, nominally a deed of gift, in respect of the half share in this house, Abdul Razzaq Khan died on the 6th August 1932. It appears that he was suffering from a carbuncle and that this was operated upon and he did not recover from the operation. The suit was defended by Defendant No. 1 Abdul Jabbar Khan only. In the original written statement filed on the 18th August 1934 the defense put forward was that the house No 2 in suit in Azamgarh town was purchased in the year 1918 with money gifted to the contesting Defendant by his mother Mst. Najib-un-nisa. It was further said that the contesting Defendant started businesses in 1924 and he got the House reconstructed with the income which he derived from his business and with money which he had received from his mother. Najib-un-nisa. It was further said that the contesting Defendant started businesses in 1924 and he got the House reconstructed with the income which he derived from his business and with money which he had received from his mother. That is to say, the Defendant pleaded that Abdul Razzaq Khan was not the person who provided the money either for the purchase of the house or for its admitted reconstruction in the years 1928 to 1929. Three and a half months after the filing of this written statement an application was made for amendment of the written statement and this amendment was permitted and the Defendant then added the pleadings Nos. 15 and 16. We are concerned only with No. 15 which runs as follows : Assuming that Abdul Razzaq Khan deceased spent anything in the purchase of the house No 2 in dispute (which is not a fact), even then since at the time of the purchase and construction of the house, all his affection and heartfelt care and attention was centered in this Defendant alone and he was his prospective heir, therefore the fact that the purchase, construction and the naming of the house was in the name of the Defendant, clearly affirms that the house was purchased and constructed for the benefit of this Defendant and whatever money he is supposed to have spent on the purchase and construction was gifted to this Defendant by him. For the same reason all the proceedings were taken in the name of this Defendant. This Defendant named the house as "Jabbar Manzil" within his (i.e. Abdul Razzak Khan's) knowledge and this name is engraved on the marka (marked portion or tablet) and to which he did not object in spite of his knowledge. 2. The written statement was of course in Urdu and the translation is rather clumsy. 3. This Defendant named the house as "Jabbar Manzil" within his (i.e. Abdul Razzak Khan's) knowledge and this name is engraved on the marka (marked portion or tablet) and to which he did not object in spite of his knowledge. 2. The written statement was of course in Urdu and the translation is rather clumsy. 3. The effect of this amendment is that the contesting Defendant, who had come forward with a firm allegation that he was the person who either directly or indirectly had provided the money for the purchase of the house and for its reconstruction, fell back on the contention that despite the general presumption against advancement in India, nonethe-less it should be taken in the present case that when Abdul Razzak Khan negotiated the purchase and took it in the name of his son, he intended the purchase to be for the benefit of the son and not that the son should be mere benamidar and it should be further taken that any monies subsequently expended upon the reconstruction of the house by Abdul Razzak Khan were intended for the benefit of the contesting Defendant. I do not think it would be correct to say that it is not open to a Defendant to take contradictory alternative pleas in this manner, but I cannot but think that a plea, taken as an after thought in the alternative like this one, is from the very beginning a weak plea. 4. The learned Civil Judge framed three issues but only two of them had any importance after the withdrawal of the suit with reference to house No. 1. 5. The issues framed are as follows : 1(a) Whether the house situate in Azamgarh city belonged to Abdul Razzak and the Plaintiff 8 entitled to any share and if so, to what extent therein? (b) Whether Abdul Razzak Khan had made a gift of money, if any spent by him in the purchase and repairs of the house in favour of the contesting Defendant and if so, how does it affect the case? 3. Whether Abdul Razzak Khan executed the deed of hiba-bil-ewaz in suit and if so, was it executed in 'marzul maut' and is it fictitious and legally invalid and inoperative? 6. I need not waste any time on issue No. 3. 3. Whether Abdul Razzak Khan executed the deed of hiba-bil-ewaz in suit and if so, was it executed in 'marzul maut' and is it fictitious and legally invalid and inoperative? 6. I need not waste any time on issue No. 3. It was found by the learned Civil Judge that the deed of gift which was really 'hiba-bil ewaz' and therefore in the nature of a sale-deed in favour of the Plaintiff, was not executed in 'marzul maut' and that even if it had been so executed, not being really a gift, it was nonetheless valid. 7. Coming now to issue No 1, the learned Civil Judge has held that the purchase money for the purchase of the house in suit in the year 1918 was provide (sic) by Abdul Razzak Khan a d the moneys required for the repairs and reconstruction of the house in the ye is 1928 to 1929 were also provided by Abdul Razzak Khan. He has entirely rejected the story that the money for the purchase came from Abdul Razzak Khan's first wife Mt Najib-un-nisa and the money for reconstruction came from income derived by the contesting Defendant from his alleged business and from his mother. Learned Counsel for the Respondent Abdul Jabbar Khan has not sought to argue that these findings of fact can be in any way disputed. The Learn, ed Civil Judge has however gone on, on page 44 of the record, to hold that Abdul Razzak Khan took the sale deed of the house in dispute in the name of his son out of love and affection and with the intention that the beneficial interest should vest in his son. In this connection his reasoning is not very convincing because he speaks of two points and about the second point he sties that this also confirms him in his opinion that the sale transaction was intended to be real and for the benefit of Defendant No. 1. In this connection his reasoning is not very convincing because he speaks of two points and about the second point he sties that this also confirms him in his opinion that the sale transaction was intended to be real and for the benefit of Defendant No. 1. This particular remark is made with reference to the existence of the name "Jabbar Manzil" upon the house in dispute engraved upon a tablet along which some other words, namely "(sic) made and supervised by Abdul Razzik Khan Overseer.' The wording suggests that the point mentioned immediately previously is supposed to be an argument leading to the same conclusion, The fact referred to is stated as follows : It is true that in this sale deed there is a recital to the effect that it was executed for Rs. 800 which Abdul Jabbar Khan (the contesting Defendant) had got from a relation of his. It is really very unusual to find a recital like this in a sale deed and the very fact that it is there goes to suggest that Abdul Razzak Khan got it made therein in order to avert the possibility of any suspicion being raised against him as to the source from which the purchase money came, he the beau in Government service. 8. But this if it is anything, is quite clearly an argument in favour of the purchase having been beamier. It is the case that Abdul Razzak Khan, who a limitedly negotiated this purchase and must have done so as Abdul Jabbar Khan in 1918 was only 12 or 13, got an entry made in the sale deed executed by his vendors: We, the executants, have received the entire amount of consideration from the vendee, who got it from some relation of his 9. It seems to me quite clear that all Abdul Razzak Khan was doing was con-ceiling the fact that the money came from him, so that in case a charge was made against him of purchasing house property while he was in Government service or of such value that he clearly could not have been able to purchase it e was not deriving some illegal income in addition to his ordinary pay, he might be able to say that it was not he who had provided the purchase money but some other relative of his son. The result is that the only evidence upon which the finding is based is the piece of evidence mentioned by the Defendant in the amended written statement. Founding upon this the learned Civil Judge found that the house in suit was the property of the Defendant Abdul Jabbar and that when Abdul Razzak Khan purported to execute a deed of gift in re pact of one-half of it in favour of the Plaintiff he was not competent to make such a transfer. 10. Before I deal with the arguments it will be convenient to deal with the legal aspect of purchases made in the name of third persons particularly members of the same family. The point has been before us in a very recent first appeal No. 163 of 1935. And in that case we said: We can take it as now established by a long line of cases the highest authority in India starting with the well-known case of Gopeekrist Gosain v. Gimgapersaud Gosain 6 Moore's Indian Appeals, p. 53 in the Privy Council that the English equitable doctrine of advancement is not applicable in India. The position has many times been explained by the Judicial Committee and nowhere better, as we respectfully think, than in the case of Guran Ditta and another v. Ram Ditta L.R. 55 Ind App. 235 at pp. 240 and 241 in which the principle is laid down in these words: The general rule and principle of the Indian law as to resulting trusts differs but little, if at all, from the general rule of English law upon the same subject, but in their Lordships' view it has been established by the decision in the case of Gopeekrist v. Gungapersaud and Uzbur Ali v. Bebee Ulfat Fatima 13 Moo. I.A., 232, that owing to the widespread and persistent practice which prevails amongst the natives of India, whether Mohamedan or Hindu, for owners of property to make grants and transfers of it benami for no obvious reason or apparent purpose, without the slightest intent on of vesting in the done any beneficial interest in the property granted or transferred, as well as the usages which these natives have adopted and which have been protected by statute, no exception has ever been engrafted on the general law of India negative the presumption of the resulting trust in favour of the person providing the purchase-money such as has by the Courts of Chancery in the exercise of their equitable jurisdiction, been engrafted on the corresponding law in England in those cases where a husband or father pays the money and the purchase is taken in the name of a wife or child In such a case there is, under the general law in India, no resumption of an intended advancement as there is in England. It has, however, at the same time been clearly recognized that one of the primary tests of a benami transaction, though not possibly the only test, has always been to establish the source of the purchase money. Before that has been ascertained, it follows of course that no question of advancement can even be considered and so far as the allegation made be one of a benami transaction it is naturally the most material piece of evidence that there can be to find where the purchase money came from. 11. In this connection Learned Counsel for the Respondent to this appeal has laid some stress upon a decision of their Lordships of the Privy Council in Ram Narain v. Muhammad Hadi (1898) 26 Cal 227, where it was said: In many, it may be said in most, cases of alleged benami this (to ascertain from whose funds the purchase money proceeded) is a very important fact. But it is not the only criterion. 12. But it is not the only criterion. 12. The particular case in which the remark was made however was one of a purchase in the name of a Defendant who pleaded that the purchase had been designed for his benefit as a gift from his employer in consideration of his faithful and important services extending over some forty years and it was shown that the Defendant had been in actual possession of this property and receipt of the rents therefore over a period of some nine years after the purchase and had never been called upon to account for those rents. 13. Learned Counsel for the Respondent has also sought to place some reliance on a case decided by a Bench of the Chief Court of Oudh, of which I was a member namely Mst. Sardar Jahan v. Mst. Afzal Begam (1941) 16 Luck 341 : 1941 A.W.R. (CC) 93. His contention is that Section 12 of the Indian Trust Act has altered the burden of proof in this matter and it is no longer sufficient merely to show that the fund from which the purchase money proceeded belonged to someone other than the person in whose name the purchase was taken in order to lead to an inference that that person is only a benamidar. In that case the result of our examination of Section 82 of the Indian Trusts Act and its effect upon the question of the burden of proof in connection with alleged benami transaction was stated in the following terms. Referring to a quotation from the head note of AIR 1925 243 (Oudh) (which ran as follows: A party cannot be relieved from the burden of proving the benami nature of the transaction by merely showing that a large proportion of the consideration was paid by the real purchaser...Section 82 of the Indian Trusts Act appears to throw the burden of proving that a transaction is benami on the party alleging it, whereas previously to that enactment the position may well have been that Plaintiff who came into court with the proof that he had paid the consideration money himself would have been able to throw the burden of proving that the transaction was not benami on the other side. 14. 14. We said: With great respect we are in full agreement that Section 82 of the Indian Trusts Act, though it may not really have altered the burden of proof, has made it much clearer than it was before that the burden of proof of establishing all the facts necessary to lead to the inference that a transfer was benami lies upon the person asserting it to be so. 15. In point of fact it has been laid down by Their Lordships in earlier cases that the burden of proof that a transfer is benami does lie in the first instance upon the person asserting it to be so, but that burden is discharged upon the said person showing that the purchase money was provided by him. 16. Section 82 of the Indian Trust Act is in the following terms : Where property is transferred to one person for a consideration paid or provided by another person and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee, the transferee must hold the property for the benefit of the person paying or providing the consideration. 17. This section puts in statutory form the proposition laid down many years earlier in Gopeekrist (sic) (1854) 6 M I A 53 case and the only question was whether the second clause made any difference to the legal position as it stood before the enactment of this section. I do not think that I should have felt myself in any way embarrassed by the proposition which was laid down in the oudh case to which I was a party in view of the circumstances of the present case, but in any case in view of a subset went decision of Their Lordships of the Privy Council which was not brought to the notice of the Bench before whom Mt. Sardar Jehan's (1941) 16 Luck 341 : 1941 A.W.K. (CC) 93 case was argued, I am satisfied that in so far as we felt that Section 82 of the Indian Trusts Act had in any way altered the legal position we were under a misapprehension. The question whether Section 8 of the Indian Trusts Act affected the matter was considered by Their Lordships in the case of Kerwick v. Kerwick (1920) 47 Ind App. 275 : AIR 1921 P.C. 56 . The question whether Section 8 of the Indian Trusts Act affected the matter was considered by Their Lordships in the case of Kerwick v. Kerwick (1920) 47 Ind App. 275 : AIR 1921 P.C. 56 . In argument it was said about Section 82 that it did not affect the matter as it left open the question of intention and Their Lordships remarked at page 280: The provisions of Sections 81 and 82 of the Indian Trusts Act do not appear to affect this case 18. I therefore take it that the second clause of the section does not have any bearing on the burden of proof and does not make it necessary for a person who alleges that the consideration for a transfer was paid or provided by someone other than the nominal transferee to show further that there was no intention upon the part of the person providing the money to pay or provide it for the benefit of the transferee. 19. With these preliminary remarks I come to the very narrow point which is really for decision, namely whether on the evidence the finding of the learned Civil Jude that Abdul Razzak Khan when purchasing this property in the name of his only son, intended the purchase to be for the benefit of that son or not and that his subsequent expenditure upon the house was also intended for the benefit of his son, the contesting Defendant, can be maintained. The first point which is clear and not in dispute is that the purchase money was provided by Abdul Kazzak Khau and prima facie although he took the purchase in the name of his son, that does not lead to any inference that he intended to benefit the son. We have it next that Abdul Razzak Khan did not go to live in Azam-garh town but proceeded at once to let the house to a third person, one Anandi, who executed a rent deed or Kerayanama (Ex. 31) in his favour on the 9th September, 1918. The learned Civil Judge has given this document no weight saying that as the house was purchased for the benefit of the son it must be taken that Abdul Razzak Khan was merely representing his son when he got the rent-deed executed in his own favour. 31) in his favour on the 9th September, 1918. The learned Civil Judge has given this document no weight saying that as the house was purchased for the benefit of the son it must be taken that Abdul Razzak Khan was merely representing his son when he got the rent-deed executed in his own favour. Thirdly we have it that the money for rebuilding this house in the years 1928 and 1929 was provided by Abdul Razzak Khan and not by the contesting Defendant. Next there is the fact that Abdul Razzak Khan himself in the document which is the foundation of the Plaintiff's suit, the deed-of-gift Ex. 7, dated the 22nd July 1932, stated that he, the executants, had acquired with his own money this piece of land with a kasha built house and had built there on a pucca double storeyed house by spending a considerable amount of money and he said about it: It is the self-acquired property of this executant 20. He went on to say that ha had put the donee in proprietary possession of the house and it is in evidence that he had handed over the key of a certain room 'containing his property to her. Fifthly it is shown that the original title deed of this house was in the possession of the Plaintiff and not of the Defendant. This fact is consistent with Abdul Razzak Khan's having continued to be the owner of the house from the beginning up to the date on which be made over his title deed to his donee. In this connection there is the statement of the Plaintiff that her husband was the exclusive owner of the gifted house before the gift and that the papers connected with the gifted house were handed over to her just after the execution of the deed. She also made a statement with regard to the delivery of possession and handing over of the key. Lastly we have the very significant fact that it did not originally occur to the Defendant to plead advancement. On the contrary he set out to prove that he himself had directly or indirectly provided the money for purchase and reconstruction. She also made a statement with regard to the delivery of possession and handing over of the key. Lastly we have the very significant fact that it did not originally occur to the Defendant to plead advancement. On the contrary he set out to prove that he himself had directly or indirectly provided the money for purchase and reconstruction. In support of the finding of the learned Civil Judge there is one and only one solid fact, namely the inscription on the tablet affixed to the house which at the date of the hearing of evidence in the trial Court (27th February 1935) ran as follows : Jabbar Manzil" (inscribed in Urdu). Below it "plan made and supervised by Abdul Razzak Khan" and again below it. Jabbar Manzil (written in English). 21. It is sought to support this piece of evidence by the contention that Abdul Razzak Khan had considerable motive for making the purchase for the benefit of his son and an attempt is made to rely upon the remark in the sale-deed that the purchase money was obtained from a relative. I have already date with the latter point and as to the former I feel considerable doubt whether the existence of a possible motive is by itself any proof of intention. Doubtless Abdul Jabbar was the only son and the first born son of Abdul Razzak and it is quite reasonable to suppose that Abdul Razzak felt particular love for that son, but that does not by itself prove that when he took a purchase of property in the name of the son he intended thereby that that property should be the property of his son It is not disputed that the practice of taking transfers of property in the name of members of the family is widespread and by itself almost meaningless. In the present case there is further to be considered the fact that Abdul Razzak would have had a motive for taking the purchase in the name of someone other than himself. He was at that time in Government service and would not have cared to take the transfer in his own name with the risk that awkward enquiries might be made by his superior officers as to the source from which he derived the money with which he purchased the house, he being an employee on a low rate of pay. 22. 22. As regards the inscription on the tablet, for my own part I would not be inclined to attach much weight to the mere naming of the house as Jabbar Manzil I do not think that if an Englishman having a son called Alfred chose, having built a house, to call his house "Alfred Hall", it would be considered that that was much evidence of an intention to make a gift of the house to the son Alfred. One may like to name places after the persons for whom one has love and affection. Moreover there are evident signs of improvement of the Defendant's case in this connection. In his written statement I he said that it was he who had got his name inscribed on the tablet "within his father's knowledge and without any objection on the part of the father'' and he made no mention of any inscription on this tablet other than the 2 words Jabbar Manzil He himself has been in occupation of the house which is at Azamgarh, while the Plaintiff was living in Allahabad. It now appears that the tablet does not merely bear the inscription "Jabbar Mapzil" but also has engraved upon it further words. The name Jabbar Manzil originally inscribed in Urdu is repeated in English and a further entry is found "Plan made and supervised by Abdul Razzak Khan". It seems to me quite clear that the Defendant has been improving his case as he went along. Another improvement which he has made is more clearly inconsistent with the statement in the written statement. He now says: this inscription is in the handwriting of my father. He made this inscription as he used to supervise the construction, lest there should be any dispute in future about the ownership of the house. 23. Furtheron he says: My father wrote out letters on a paper which was affixed to a piece of stone. 24. That is to say, according to the present story Abdul Razzak Khan himself got the inscription made and drew out the design on a piece of paper. This is not what the Defendant had said in the written statement, which implies only that his father had knowledge of what he, the Defendant, was doing and made no objection to it. 25. This is not what the Defendant had said in the written statement, which implies only that his father had knowledge of what he, the Defendant, was doing and made no objection to it. 25. Moreover the Defendant himself called a witness Nasir Ahmad who deposed that he once had a talk with Abdul Razzak Khan about this inscription and Abdul Razzak Khan told him that to avoid dispute and to avert suspicion he had this inscription made Now it is perfectly true that in so far as this purports to prove a statement of Abdul Razzak Khan deceased the statement of Abdul Razzak Khan is not admissible in evidence, but the effect of the statement is that the Defendant has himself led evidence to the effect that the inscription was made not in order to show the ownership of the Defendant but in order to avoid dispute and avert suspicion and the only suspicion which could be averted would be the suspicion that Abdul Razzak Khan had been making illicit income out of his duties as a sub-overseer In my judgment it is quite impossible to sup ort the finding of the learned Civil Judge that the evidence on the record proves the intention of Abdul Razzak to purchase this house for the benefit of his it son Abdul Jabbar and further to reconstruct for his benefit. 26. I would accordingly allow this appeal with costs, set aside the decree of the learned Civil Judge and order that the Plaintiff's claim be decreed with costs. As regards the proper form which the decree should take, in view of the position of the Respondent as a benamidar, this point has been considered by my learned brother in his separate judgment and I agree with the view which he takes. Braund J. 27. It is not necessary for me to set out the facts which are fully related is the judgment of my learned brother, The site of the property in question with the house then on it, can for the purpose of this appeal be taken to have been purchased in 1918 in the name of the first Defendant, Abdul Jabbar Khan for Rs. 800 provided by Abdur Razaq Khan, his father. 800 provided by Abdur Razaq Khan, his father. The new house which was built on the site and completed in 1929 can also for the purpose of this appeal be taken to have been wholly provided by Abdur Razaq Khan. 28. In those circumstances the issue is whether the Plaintiff, who is the Appellant, can succeed in her claim that the first Defendant was a mere benamid holding the property on trust for his father, Abdur Razaq Khan and his assignee, the Plaintiff herself, under the assignment to tier dated the 22nd July, 1932 of a only of the property. 29. This is a case in Which the evidence of any positive intention on the part of Abdur Kazaq Khan first in purchasing the site in his son's name and then in providing the cost of the new building, is meagre and it becomes, therefore, of consequence to appreciate on whose shoulders lay the burden of establishing that injunction. Sir Wazir Hasan on the Plaintiff's behalf has very properly relied on that long line of authorities in Judicial Committee, starting with Gopeekrist Gosain v. Gungapersaud Gosain (1854) 6 M.I.A. 53 and Continuing up to and beyond Kerwick v. Kerwick (1920) 47 Ind. App. 275 : AIR 1921 PC 56 in which their Lordships have held that in the case of a 'benami' transactions, in the sense of a real transaction (as the present one admittedly is), the 'benamidar' becomes a trustee holding on a resulting trust which "differs but little, if at all, from the general rule of English law upon the same subject", with the exception that the English equitable doctrine of the presumption of advancement has never been admitted into the law of India. The law, therefore, is in my view, too well settled by the highest authority now to be challenged, that, in the case of a real, as opposed to a purely fictitious purchase by a father in the name of a son in which the father admittedly provided the purchase money, a resulting trust in all cases arises in the father's favour, unless there is positive evidence of an advancement or gift, and if a gift is alleged by the son in whose name the transaction stands, it is for him to prove it. 30. But Mr. 30. But Mr. Banerji, on the Defendants' behalf has referred us to Section 82 of the Indian Trusts Act of 1882, which he says, has entirely altered the law, whatever it may have been prior to 1882. He contends that, inasmuch as that section provides that the Court not only has to be satisfied that the purchase money was provided by a third party, but also that the third party had no intention of making a gift of it to the actual transferee, the burden of proving the latter negative fact has been thrown on to the person who seeks to deny that the actual transferee is also the beneficial owner This at first sight is alarming, as if it is true, it appears to my mind, not only to obliterate from Indian Law the whole doctrine of the resulting trust, which the Privy Council has in many cases acknowledged to exist in India, but also to introduce, in a much extended form, the doctrine of advancement, which the Privy Council has with equal regularity said does not exist in India. 31. In my opinion, Section 82 of the Indian Trusts Act does not, on its true construction, require any such drastic change in the law. When considered carefully, it to my mind, says no more than that the Court has to be satisfied of two things before a resulting trust can be declared; first that some one other than the actual transferee provided the purchase money and secondly, that that person did not intend the money to be a gift. It does not say how the Court is to be satisfied of this latter fact and still less upon whom the onus of proving it is to lie. The position, therefore, is that, having arrived at the conclusion that the purchase money was provided by someone other than the transferee, the Court has to consider whether person intended it as a gift or not. It is at that point that the established doctrine of the resulting trust at once comes into full and immediate play and if there is no other evidence in the case, that doctrine, as the Privy Council has pointed out, must apply. In order to displace it, it becomes necessary, therefore, for the actual transferee to prove, if he can, that the money was intended as a gift. In order to displace it, it becomes necessary, therefore, for the actual transferee to prove, if he can, that the money was intended as a gift. The position is, therefore, wholly unaltered by Section 82 of the Indian Trusts Act. 32. I regret that, with great respect, I cannot agree with the conclusion reached by the Chief Court of Oudh in the case of Musammat Sardar Jahan v. Musammat Afzal Begum (1941) 16 Luck 341 : 1941 AWR (CC) 93. If I may say so that case, in my opinion, overlooked that the moment the fact was proved that the purchase money was not provided by the transferee, the doctrine of the resulting truest once and automatically, applied, unless the opposite intention was proved It is right to say that in that case Kerwick v. Kerwick ((sic) supra) in which the same argument based on Section 82 of the Indian Trusts Act was advanced and rejected by the Judicial Committee, was not brought to the notice of the learned Judges who decided it. 33. The matter, therefore, becomes, in my opinion, a question of fact, whether the Defendants succeeded at the trial in establishing that the money which went to the purchase of the site in 19 J 8 and to the rebuilding on it of the house in 1929, was intended by Abdur Razaq Khan to be a gift to his son, Abdul Jabbar Khan. In my opinion no such intention has been, on the facts of this case, sufficiently proved. The learned Subordinate Judge in his judgment expresses himself as having no doubt that the "sale transaction was intended to be real and for the benefit of his son". It is only with hesitation that I should venture to disagree with a judge of first instance on a question of pure fact, but I cannot bring myself to follow fully the reasoning by which he reaches that conclusion He appears in the first place to attribute to Abdur Razaq Khan, who at one time was a Government servant, deliberate intention in purchasing the property in his son's name to conceal from his employers that he (the father) was the purchaser. If this was his real motive, then it points to anything but an intention to benefit his son. If this was his real motive, then it points to anything but an intention to benefit his son. Put in the very next sentence the learned Judge proceeds to attribute to Abdur Razzak Khan another intention altogether, namely to satisfy his natural love and affection for his son. Whether the learned Judge came to his ultimate conclusion by some process of combining these two intentions I do not know, but, at first sight they would appear to be somewhat contradictory. 34. I do not desire to deal with the facts at great length as they will be dealt with by my learned brother, in whose judgment I concur. The main fact relied upon by the Defendant Abdul Jabbar Khan, to support his claim of advancement is that, after the new house was built, a tablet or inscription was placed on the house bearing the words "Jabbar Manzil. Plan made supervised by Abdul Razaq, Oversser". Assuming in the Defendant's favour that this inscription was to be found on the house in the form set out above and that it was placed there by the direction, or with the concurrence of the father it must be conceded that, standing by itself, it would constitute a strong piece of evidence that the house belonged beneficially to the Defendant, though it is not inconceivable that a man might have whim to name his own house after his only son, without making it over to him. However that may be, it must be admitted that it is a piece of evidence tending in the Defendant's favour, But against this there are a number of circumstances which point the other way. In the first place, it appears to be quite clear that the title deeds were retained by the father and were never handed over to his son and when it came to produce them at the hearing of this case, they were produced by the Plaintiff. That is a strong indication that Abdul Razaq had not parted with his beneficial interest in the house. Then again there is evidence that the only letting of the premises of which we have evidence, which took place soon after the site was originally bought, was by the father. The Karaeyanama in respect of this transaction is to be found at page 53 of the record. Then again there is evidence that the only letting of the premises of which we have evidence, which took place soon after the site was originally bought, was by the father. The Karaeyanama in respect of this transaction is to be found at page 53 of the record. I am inclined to think that this has been brushed aside a little too lightly by the learned Judge on the ground that the first Defendant was then only about thirteen years of age. So far as the actual possession of the property is concerned, there is not much to help us either way. The father and his son lived together in the house until rather less than a year before the father died, when he moved to Allahabad and married the Plaintiff. But even then he left his furniture in a locked room on the premises. The evidence of possession is not at all inconsistent with the father having been in reality the owner. 35. I cannot, moreover, close my eyes to the form in which the Defendant's case has been pleaded in his written statement, In his original defence of August 1934 he pleaded only that the house was his by virtue of his having provided the who e of the purchase money both for the site and for the rebuilding. On this part of the case he was wholly disbelieved by the learned Judge and so far as this appeal is concerned, it has now been abandoned. But on the 1st December 1934 an amendment was introduced into the written statement by which the first Defendant for the first time pleaded any case of advancement or gift. As to whether that amendment was properly allowed at that stage I will express no opinion, but it, at least, by its very late appearance tends to make me cautious in accepting the first Defendant's story. 36. On the whole, I am of the same opinion as my learned brother that, while not overlooking the value of the inscription, it is not strong enough, in the face of all the other evidence in the case, to enable me to agree with the learned Judge in thinking that the first Defendant has established his beneficial title to the house and site by way of gift or advancement from his father. In these circumstances, I agree in thinking that the appeal must be allowed. In these circumstances, I agree in thinking that the appeal must be allowed. 37. There remains the question of the form of relief to which the Plaintiff is entitled. She has by her plaint framed her suit as one for partition. But the difficulty I apprehend in granting a simple decree for partition h the fact that the property is still vested in the first Defendant as 'benamidar' or as the Judicial Committee has pointed out, in a trustee holding on trusts resembling the resulting trust in English law. I think therefore, that the decree ought to be in this form. First, there must be a declaration that the house and site more particularly described in the plaint and known as "Jabbar Manzil" (of which the site was transferred to the first Defendant by a Transfer dated the 8th August 1918 being Exhibit VI in these proceedings) are, in the events which have happened, vested in the first Defendant, Abdul Jabbar Khan, as "benamidar" on trust for the persons claiming through Abdul Razaq deceased and in the several shares to which they are respectively entitled. 38. This must be followed by a declaration that the Plaintiff, Siddiqa Begun,, is beneficially entitled under the said trust to one half of the said house and site under and by virtue of the Transfer to her dated the 22nd July 19 52 referred to in the plaint and to a further one-eighth of the said house and site as an heir of the said Abdul Razaq, deceased, making together an undivided five eighths of the said house and site. 39. There will then be a further declaration that "the trusts of the said house and site ought to be carried into effect", followed by an order and decree that "in execution of the afore-said trust as hereinbefore declared" the property shall be 'partitioned between the parties entitled 'thereto. The decree will from that point follow the appropriate form of a partition decree. 40. In the result, therefore, in my opinion, this appeal should be allowed, the decree of the learned Judge in the Court below should be set aside and a decree substituted for it in the form I have indicated above. The Appellant has succeeded and is entitled to her costs both in this Court and in the Court below.