ORDER Pandey, J. This appeal under clause 10 of the Letters Patent is directed against a reversing order of the learned single Judge by which he held that an assignment of a decree for the payment of money was not really in favour of one of the judgment-debtors and the assignee was, therefore, not disentitled to execute that decree under the second proviso to Order 21, rule 16 of the Code of Civil Procedure. On account of damages sustained by a tort, one Hifazat Ali, a prominent lawyer of Khandwa, obtained against Ahsan Ali. a pleader of Burhanpur and others, a decree for Rs. 9.223-6-0. Hifazat Ali executed that decree against Ahsan Ali and attached his bungalow and a house. Thereupon Ahsan Ali prayed for instalments and also subsequently asked for time to compromise the claim. At this stage, on 14th August 1956, Hifazat Ali assigned the decree to Hidayat Hussain, a brother of Ahsan Ali's wife residing at Durg, for a sum of Rs. 8,500. When Hidayat Hussain initiated proceedings in execution against the judgment-debtors, some of them urged that, since the real assignee was the judgment-debtor Ahsan Ali, the decree could not be executed against them. During the pendency of the appeal before the learned single Judge Hidayat Hussain and one of the judgment-debtors died and their legal representatives were brought on record. For convenience we would refer only to Hidayat Hussain, the original assignee. The Additional District Judge, Khandwa, held that Hidayat Hussain was only a benamidar and the real assignee was Ahsan Ali himself on the basis of t he following facts and circumstances : (a) That the original decree-holder Hifazat Ali, who is a prominent lawyer of the Khandwa Bar, had taken out execution of the decree against Judgment-debtor Ahsan Ali alliance, the latter being also a leading lawyer but of the Burhanpur Bar, and had attached a house and a bungalow of his in consequence. (b) That the judgment-debtor Ahsan Ali had prayed for instalments and the application for the purpose was pending. (c) That he had also been praying for adjournments from time to time to arrive at a compromise with the decree-holder. (b) That the judgment-debtor Ahsan Ali had prayed for instalments and the application for the purpose was pending. (c) That he had also been praying for adjournments from time to time to arrive at a compromise with the decree-holder. (d) That the person most interested in the compromise was Ahsan Ali and the final settlement of the consideration to be paid for the alignment was also made by him, who had further stipulated with the decree-holder that he (the decree-holder) would execute the deed of assignment in the name of a person whose name he (the judgment-debtor) had agreed to furnish later on: [See the evidence of Subbarao (3 N. A. W. 1) and Kikabhai (3 N. A. W. 3), Hifazat Ali (C. W. 1) and Kamruddin (A. W. 2)]. (e) That the assignment (Exh. A-1) was taken on 14-8-1956 by Hidayat Huswain, who is a merchant at Durg. (f) That the assignee was the brother of the wife of the judgment-debtor Ahsan Ali. (g) W That according to the evidence of Imam Khan (3 N. A. W. 2), the consideration for assignment was paid to Hifazat Ali (C. W. 1) by Kamruddin (A. W. 2) in two instalments of Rs. 5,000 and Rs. 3.500 respectively and that when the amount of Rs. 5,000 was paid, the amount was handed over by Ahsan Ali to Kamruddin who in turn paid it to Hifazat Ali; (ii) That the evidence of Kamruddin (A. W. 2) to the contrary that the amount came from Hidayat Hussain was not reliable; and (iii) That the whole consideration for the assignment in favour of Hidayat Hussain was paid by Ahsan Ali. (h) That the reason given by the assignee for the purpose of the decree, e. g. that he had a grudge against the judgment-debtor Ahsan Ali, as he used to instigate his wife (who was the sister of the assignee) to demand her share from her brother in their father's property, appeared it to be very farfetched, unreal and unreliable. (i) That the assignee made no enquiries if the debt could or could not be recovered from the other judgment-debtors. (j) That judgment-debtor Ahsan Ali did not enter the witness-box to contradict the allegation that the assignment was benami. (k) The conduct of judgment-debtor Ahsan Ali subsequent to the assignment in not pressing his application for instalments also suggested that the assignment was benami. (j) That judgment-debtor Ahsan Ali did not enter the witness-box to contradict the allegation that the assignment was benami. (k) The conduct of judgment-debtor Ahsan Ali subsequent to the assignment in not pressing his application for instalments also suggested that the assignment was benami. The learned single Judge, while holding that there were circumstances of suspicion, took a different view about the facts and circumstances (g) and (h) held that other facts and circumstances did not necessarily indicate that the assignment was benami and found that there was no conclusive evidence to establish that the consideration for the assignment came from Ahsan AH. Having heard the counsel at length, we have reached the conclusion that, in the facts and circumstances of the case, all considered together the assignment in favour of Hidayat Hussain was benami and the real assignee was Ahsan Ali. Relying upon Naba Kishore v. Upendra Kishore AIR 1922 PC 39 , AIR 1934 208 (Privy Council) and Sarju Pershad Vs. Raja Jwaleshwari Pratap Narain Singh and Others, the counsel for the appellant urged that the learned single Judge was not justified in disbelieving in appeal witnesses trusted by the Court of first instance which heard them and formed impressions about their being truthful from their demeanour and in disregarding the principle that an appellant did not discharge the onus of proving the judgment appealed from to be wrong merely by showing that there was an equal possibility of the judgment being in favour of the one party or the other being correct. In answer, the counsel for the respondent cited AIR 1945 35 (Privy Council) and Kidar Lall Seal and Another Vs. Hari Lall Seal, at p. 191 to support the course adopted by the learned single Judge in a case requiring consideration of the weight of evidence taken as a whole on the basis of inherent probabilities. We are of opinion that he was not unjustified in adopting the course he did because having regard to the state of evidence led in the case, it had to be dealt with on reasonable probabilities and legal inferences drawn from proved and admitted facts. It is firmly settled and is not also disputed that, in establishing the benami nature of a transaction, the cardinal point to be proved is the source of money. It is firmly settled and is not also disputed that, in establishing the benami nature of a transaction, the cardinal point to be proved is the source of money. In considering the onus of proof of source of money, the learned single Judge relied upon the following observations of the Judicial Committee in Manna Po Kin v. Maung Po Shein ILR 4 Rang. 518 (PC) : AIR 1926 PC 77 : The burden is no doubt a difficult one to discharge, because in all benamidar transactions the very object of the parties is secrecy; but still the person who alleges that property conveyed to another belongs to him must prove his allegation and prove it beyond reasonable doubt. That was an ordinary case of benami dispute in which the person claiming to be the real owner was on one side and those who were claiming the property by attacking the transactions made in favour of the former as benami were on the other. Different considerations arise where the dispute is not between the benamidar or his representative on one side and the real owner or his representative on the other. In such a case, lack of evidence, particularly about the source of money, does not tell against the person attacking the transaction as benami. So, in Uman Parshad v. Gandhara Singh 14 1A 127 at p. 132 the Judicial Committee observed : Therefore, the absence of evidence certainly does not tell against the plaintiff, but it rather tells against the defendant, who might have produced both witnesses and documents which would throw light upon the case. In Dalip Singh and others v. Chaudhari Nawal Kunwar and Another 35 IA 104 the Judicial Committee considered another case of benami transaction and observed that where the evidence on neither side was wholly convincing, the Court must rely largely upon the surrounding circumstances, the position of the parties and their relation to one another, the motives which could govern their actions, and their subsequent conduct. Where commission of fraud is the object of a benami transaction, it is rarely possible to establish it by "conclusive evidence" of a positive character. Since fraud is secret in its movements, circumstantial evidence is the only recourse in dealing with it. Where commission of fraud is the object of a benami transaction, it is rarely possible to establish it by "conclusive evidence" of a positive character. Since fraud is secret in its movements, circumstantial evidence is the only recourse in dealing with it. Finally, in AIR 1949 88 (Federal Court) at p. 92 Federal Court stated : It is also well established that in a case where it is asserted that an assignment in the name of one person is in reality for the benefit of another, the real test is the source whence the consideration came and that when it is not possible to obtain evidence which conclusively establishes or rebuts the allegation, the case must be defalt with on reasonable probabilities and legal inferences arising from proved or admitted facts. Having regard to the principles mentioned in the last paragraph, we have to determine whether the assignment was benami in character. Now, the only reason, which Hidayat Hussain A. W. 1 gave for purchasing the decree was that he had a grouse against his sister's husband Ahsan Ali, who had instigated his wife to demand from Hidayat Hussain her share of their patrimony. Hidayat Hussain did not say that she had in fact made such a demand. In this situation, the Additional District Judge and the learned single Judge concurred in rejecting that explanation. When this was discarded, and we think rightly, there was no good reason for Hidayat Hussain, who was residing and carrying on business in a far away place, to purchase a decree against his own brother-in-law. We consider it improbable that any one would have risked his good money in a transaction of this character. Hidayat Hussain stated that he did not enquire whether the decretal amount could be recovered from the judgment-debtors other than Ahsan Ali and added that he had directed Kamruddin A. W. 2 to examine the papers relating to the decree in the custody of the decree-holder. It is not without significance that Kamruddin did not do so. Further, Hidayat Hussain was not even present when the consideration for the assignment was paid or the assignment was executed by the decree-holder. It is in his evidence that he paid Rs. 8,500 in one sum to Kamruddin A. W. 2, who did not explain why he paid the amount in two sums of Rs. 5,000 and Rs. 3,500 to the decree-holder. It is in his evidence that he paid Rs. 8,500 in one sum to Kamruddin A. W. 2, who did not explain why he paid the amount in two sums of Rs. 5,000 and Rs. 3,500 to the decree-holder. In addition to Rs. 8,500, Hidayat Hussain claimed that he paid only Rs. 50 to Kamruddin as his fee. Perhaps, Hidayat Hussain does not even know that Rs. 170 was spent for stamp of the requisite value needed for the assignment and there were also certain other expenses. Their evidence also reveals the important fact that Hidayat Hussain left this transaction of considerable value to be negotiated and completed by Kamruddin, who stated that, prior to that occasion, he did not at all know Hidayat Hussain. It is implicit in the evidence of Hidayat Hussain that he could not support his claim that he paid Rs. 8,500 from any document or account books. In this situation, the learned single Judge regarded his statement that the money came from his private funds as "not very convincing". That being so, the case relating to the source of money should have been dealt with on the basis of reasonable probabilities and legal inferences arising from proved and admitted facts. It is true that some of above mentioned considerations, which tell against Hidayat Hussain, can be explained away as not necessarily indicating that he did not provide, or was incapable of providing, the money paid for the assignment. In our opinion, it would not be right to explain away each consideration in this manner because we have to take into account the total effect of all those considerations regarded cumulatively. So regarded, we are of the view that it was extremely improbable that Hidayat Hussain took the assignment for himself or provided the money paid for the assignment. As we would show in a moment, the oral evidence led in the case supports that conclusion. Subba Rao N. A. W. 1 stated that, at the instance of Ahsan Ali, he went to Hifazat Ali to induce him to make a private settlement of the decretal claim. As we would show in a moment, the oral evidence led in the case supports that conclusion. Subba Rao N. A. W. 1 stated that, at the instance of Ahsan Ali, he went to Hifazat Ali to induce him to make a private settlement of the decretal claim. Kikabhai N. A. W. 3, with whom Ahsan Ah used to stay whenever he visited Khandwa, stated that, at the instance of Ahsan Ali he met Hifazat Ali for settlement of the claim and Hifazat Ali then stated that, although he was willing to assign the decree in favour of any one named by Ahsan Ali, he would not give up interest which the decretal amount carried. This evidence was supported by Hifazat Ali and relied upon by the trial Judge. It was also not disbelieved by the learned single Judge. Since Hifazat Ali had not agreed to give up interest or to reduce the claim, Kamruddin, a junior of Hifazat Ali and a political associate, was sent to negotiate with him. It is in the evidence of Kamruddin that he did go to Hifazat Ali to negotiate a settlement. He did not state that Ahsan Ali did not accompany him. Hifazat Ali stated as a court-witness that the settlement was made with Ahsan Ali in the presence of Kamruddin and it was agreed that the assignment would be made in favour of a person to be named by Ahsan Ali. The learned single Judge did not disbelieve this part of the evidence of Hifazat Ali, which was supported by Imam Khan N. A. W. 2. Now, if this evidence is accepted, and we see no good reason for not doing so, it goes a long way in showing that the assignment was benami and the money was provided by Ahsan Ali. In the view we have taken, this appeal succeeds and is allowed. The order of the learned single Judge dated 7 October 1960 is set aside and the one passed by the executing Court is restored. The legal representatives of Hidayat Hussain shall bear their own costs and pay, out of the assets of Hidayat Hussain in their hands, the costs of the contesting judgment-debtors throughout. Hearing fee Rs. 100. Final Result : Allowed