JUDGMENT M.A. Ansari, C.J. 1. The assessee is the proprietor of a cloth shop at Calicut called "Cannanore Shop" and has a son P. T. Abdul Sathar, aged 23, who left school in 1949. The son had no previous business experience when another cloth shop was on March 11, 1949, opened under the name and style "New Stores" at Cannanore. On the opening day Rs. 10,075/- had been credited in the books of this business to the capital account of P. T. Abdul Sathar as cash received from him. The day-to­day management of the New Stores has been conducted by Abdul Sathar, who signed cash bills, counter foils and other documents in the course thereof. The shop has also been registered with the Sales Tax Department showing the son as the sole proprietor. The assessee did not return the profits from the aforesaid New Stores in his assessment for 1950-51, and deposed before the Income Tax Officer on July 10, 1950 that he had gifted to the son the aforesaid Rs. 10.075/- from his rental income and drawings kept outside the books. The Income Tax Officer did not accept this claim, and in that assessment year included the profit in the assessee's income. Thereafter the assessee filed appeal before the Appellate Assistant Commissioner which was dismissed. The assessee further filed appeal before the Appellate Tribunal, which also dismissed the appeal on the ground that there was no evidence to support the assessee's claim and that the business in fact belonged only to the assessee. We are not concerned with the aforesaid orders; for, the question referred to us arises in the next assessment year, the previous year for which had ended on March 31, 1951, and the assessee has again not included in his return the profit of Rs. 12,652/- from the business of the New Stores. The Income Tax Officer had asked the assessee to support his return and the case of having gifted Rs. 10,075/- to his son, and drew the assessee's attention to the Appellate Tribunal's and Appellate Assistant Commissioner's orders for the previous assessment year. The assessee's case again was that Rs. 10,075/- had been gifted, that the assessee's name was absent in the books, and that there had been only Rs. 2,000/-, which was advanced as loan in the year ending March 31, 1951. The assessee's case again was that Rs. 10,075/- had been gifted, that the assessee's name was absent in the books, and that there had been only Rs. 2,000/-, which was advanced as loan in the year ending March 31, 1951. The Income Tax Officer has held the business to belong to the assessee, and accordingly included the profits in the assessment. In the appeal before the Appellate Assistant Commissioner, it was again pleaded that the assessee had made a gift of Rs. 10,075/-in cash to his son; and the Appellate Assistant Commissioner again confirmed the view taken in the earlier assessment year, holding the 'New Stores' to be only the assessee's business. The Appellate Tribunal also rejected the assessee's appeal; and it would be of advantage to extract the relevant passage from the order of the Appellate Tribunal, which reads as follows : "It is admitted that the son has no business experience. Except for the capital account opened in the books opened for the Cannanore Shop, there is nothing to show that the business actually belongs to the son. There is on the one side the admission of the assessee that the money belongs to him, while on the other there is no proof that he gave it as an absolute gift to his son. The position will be different if in the Cannanore books the assessee's account is credited instead of the capital account, in which case it can be legitimately claimed that the assessee is only a creditor and not the owner. It is not so. The money has gone to the capital account but through the name of the son. Having due regard to all the facts' and circumstances of the case, we find that the son is only a benamidar for his father. The business belongs only to the assesses and the profits of Rs. 12, 652/- therefrom have been rightly assessed in his hands." Not satisfied with the order, the assessee has asked for the following question being, and which has been, referred to us : "Whether there is any evidence or material, on which the Tribunal could properly find that the petitioner is the owner of the new business started at Cannanore under the name of "New Stores", and that P. T. Abdul Sathar is only a benamidar for the petitioner in regard to the ownership of the said business ? 2. 2. The statement of the case shows that the day-to-day management of the new concern was carried on by Abdul Sathar, who had also signed the cash bills, counter foils and the other documents in the course thereof. Moreover, the shop was registered with the Sales Tax Department showing him to be the sole proprietor. Therefore, for all apparent purposes the son was the owner of the shop, and the question is whether the son acted as the trustee for the father because the amount of Rs. 10,075/- had come from the father. Had the aforesaid sum been shown to be still the property of the father, or the business begun with its aid to be of the father, to be controlled by the father there would be justification for treating the son as the trustee or benamidar. There is no such evidence, and the amount was given either as loan or as gift. Neither the assessee nor the Department treats the amount to be loan ; and therefore, the giving was intended to be either absolutely or in trust. In the latter case, the son would still be the ostensible owner and, therefore, the father would even then be taking the risk. Had the intention been to guard himself and the son against inexperience, one would expect the son being appointed as servant, rather than as ostensible owner. The assessee would in either of the aforesaid cases be taking risk, and the absence of later direction of the business by the father indicates that money was, after it was parted with, not meant to be still of the father. The assessee's case is that it was gifted and it is well known that a gift under Mohammedan Law becomes effective by a declaration by the donor, acceptance by the donee, and by delivery of possession from the donor to the donee. Now, in the accounts of the business belonging to the son the entry is made of the particular sum being of the son, which the father says that he had earlier given to the son; and we do not know, in those circumstances, what further be required under the personal law of the parties to establish valid gift. Now, in the accounts of the business belonging to the son the entry is made of the particular sum being of the son, which the father says that he had earlier given to the son; and we do not know, in those circumstances, what further be required under the personal law of the parties to establish valid gift. The subsequent conduct of the father would certainly be indication of the amount not having been donated, but it is clear that during the two years of the management of the New Shop the control and disposal of the business been by the son alone. The taxing authority has assumed that in order to constitute gift, there must be documentary evidence; and undoubtedly documentary evidence would make the position secure, but the subsequent conduct of the donor would equally support the. case of the gift. The enjoyment of the property got with its aid, the control, the direction by the donee, would furnish sufficient indication of the money having been absolutely gifted to the son, and such is the position in this reference. 3. The law of benami has been the subject of various decisions, and we respectfully agree with the observations in R. K. Murthi v Commissioner of Income Tax (42 1. T. R. 379) where Ramachandra Aiyer J. has clarified the law by stating that source of purchase money is not always decisive of the real ownership of the property, and payment of consideration for the purchase of property by one person would invest him with the beneficial interest only if there is no proof of an intention on his part to pay it for the benefit of the person, in whose name the property was purchased. That this rule extends to business as well, that be started with the aid of funds from another, is borne out by Gopinath Agarwal v Commissioner of Income Tax (28 1. T. R. 753 at p. 76p) where Bhargava J. dealing with the case of money that had been given for starting a partnership business, has observed as follows; "The main ground relied upon is the fact that Gopinath Agarwal financed this firm by advancing money to carry on its business. The mere fact that a business is being carried on by means of money obtained from a certain individual cannot lead to any reasonable" conclusion that that business must belong to. The mere fact that a business is being carried on by means of money obtained from a certain individual cannot lead to any reasonable" conclusion that that business must belong to. that individual. Such an inference can only follow if it be found that the money was advanced as capital for carrying on the business and the person advancing the money retained his interest in the business in the capacity of the person providing the capital." It is clear that the intention to lend money as capital and to be the owner of the capital, is essential in order to constitute the person, who is doing the business, as benamidar; and except for the fact that the money came from the father, there is no support for the amount coming as capital of the father into the business, nor. is there control of the business, nor any evidence of the profits from the business going to the father, nor any guidance from the father that controlled the son's doing business. It follows that the son's being only a benamidar in regard to ownership of the business, is not borne out by material; and, when the son's being benami is not proved, the ownership of the New Stores would be of its ostensible owner. That is our answer to the question referred, which may be sent to the Department.