JUDGMENT : T.C. Raghavan, J. 1. Since a Division Bench felt some doubt regarding the correctness of the decision in K. Kuttappan Nair Vs. Commissioner of Wealth-tax, (1969) 72 ITR 426, the appeal has been placed before a Full Bench. The appeal arises in execution; and the question raised is whether the property standing in the name of the respondent belonged to her as property purchased benami in her name by her husband. The appellant is the plaintiff decree-holder and the respondent the fourth defendant. The appellant obtained a decree against the first defendant, now deceased, the husband of the respondent and in execution of the decree, an item of property with a house thereon purchased in the name of the respondent was attached The respondent filed a petition before the lower court for raising the attachment claiming that the property belonged to her. Objection was taken by the appellant that the property belonged to the first defendant and the purchase in the name of the respondent was only benami for him. This objection was overruled and the petition of the respondent was allowed. Hence the appeal. 2. The Subordinate Judge disposed of the question in the light of the principles enacted in sections 81 and 82 of the Indian Trusts Act. When the appeal came before the Division Bench, it appears to have been urged by the appellant that the Division Bench ruling of this Court in Janu Vs. Cheeru, (1960) KLJ 970 applied to the case and that the recent Division Bench ruling in Kuttappan Nair's case required reconsideration. 3. If the matter is viewed in the light of the principles enacted in sections 81 and 82 of the Indian Trusts Act, there cannot be any doubt that the decision of the lower court is right, Section 81 of the Indian Trusts Act reads : Where the owner of property transfers or bequeaths it and it cannot be inferred consistently with the attendant circumstances O.P. Menon v. M. Rugmini (Raghavan Ag. C.J.) (F.B.) that he intended to dispose of the beneficial interest therein, the transferee or legatee must hold such property for the benefit of the owner or his legal representative. C.J.) (F.B.) that he intended to dispose of the beneficial interest therein, the transferee or legatee must hold such property for the benefit of the owner or his legal representative. Illustration (d) to the section might also be noted: (d) A makes a gift of certain land to his wife B. She takes the beneficial interest in the land free from any trust in favour of A, for it may be inferred from the circumstances that the gift was for B's benefit. And section 82 reads: 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. Now, two things have to be established u/s 82, one, that the consideration for the purchase was paid or provided by another person, and two, that it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee. If these two conditions are established, then the transferee has to hold the property for the benefit of the person who paid or provided the consideration. In the light of this principle, the Subordinate Judge has considered the circumstances in the case in paragraph 4 of his Judgment and has held that the purchase was for the benefit of the respondent, in other words, the beneficial interest in the property also vested in the respondent. The evidence in the case has disclosed that the consideration for the purchase must have come from the first defendant the husband of the respondent; and we need not go into the details of the evidence on this aspect as this fact is not seriously disputed before us. But, ever since the purchase under Ex. A1 in 1948, the government assessment has been paid by the respondent; the municipal tax has also been paid by her (vide Exs. A2 to A5 and Exs. A6 to A24). Circumstances are also lacking as to why the first defendant should have thought of a benami purchase in the name of the respondent. The only circumstance relied on by the counsel of the appellant is a recital in Ex. A2 to A5 and Exs. A6 to A24). Circumstances are also lacking as to why the first defendant should have thought of a benami purchase in the name of the respondent. The only circumstance relied on by the counsel of the appellant is a recital in Ex. B1 dated 30th May 1950, a partition deed in the tarwad of the first defendant. There is a recital in that document that the first defendant purchased a building of his own in Palghat and was residing there. From this it is urged that this is an assertion by the first defendant that he had no intention to benefit the respondent at the time - that he was claiming the house as his. The Subordinate Judge has not agreed with this contention, nor do we agree. The recital means only that the tarwad house need not be left in common as the common ancestress died and as the first defendant was not living there, he having shifted his residence to the house he purchased in Palghat. There was no occasion then to claim that the house was his, the purpose of the recital being just to state that he was living in another house; to whom that house belonged was of no consequence. Therefore, basing on this recital alone, the appellant cannot contend that the first defendant did not then have the intention to benefit the respondent by the purchase. 4. Thus, looking at the question in the light of the principles laid down in sections 81 and 82 of the Trust Act, the decision of the lower court must be correct. But then, the contention urged before us is that the reasoning in Janu Vs. Cheeru, (1960) KLJ 970, should apply to this case and that the said decision has not even been considered in the recent decision in Kuttappan Nair's case. In Janu's case we find a full discussion of the English principle of advancement and how far it is applied in India. Starting from the earlier decision in 6 M.I.A. 53 (Privy Council) on the question and ending with the decision of the Allahabad High Court in Mst. Siddiqa Bagam Vs. Abdul Jabbar Khan and others, most of the relevant decisions, several of them being decisions of the Privy Council, have been considered by Joseph J., who wrote the judgement of the Division Bench in that case. Siddiqa Bagam Vs. Abdul Jabbar Khan and others, most of the relevant decisions, several of them being decisions of the Privy Council, have been considered by Joseph J., who wrote the judgement of the Division Bench in that case. In Gopeekrist Gosain's case the Privy Council observed that the principle of resulting trust applied to India, but the exception engrafted on that principle by English Courts of Equity the principle of advancement that, when the purchase was made in the name of the wife or the children with funds supplied by the husband or the father, the property purchased belonged to the former, did not apply to India. In a series of cases before the Privy Council, the same principle has been reiterated; and most of those decisions are mentioned by Joseph J. We do not propose to re-capitulate or re-enumerate them. Ultimately when the question came before the Allahabad High Court in Mt. Siddiqa Begam s case, Braund J. had occasion to consider the question. The learned Judge considered the entire question in the light of the principle enacted in section 82 of the Trusts Act; and the learned Judge observed that section 82 did not bring about any drastic change in the law and that the principle enacted in that section was only a declaration of the law as it existed. Braund J. explained that the court had to be satisfied of two things before a resulting trust could be declared: firstly, that some one other than the transferee provided the purchase money, and secondly, that the person did not intend the money to be a gift. The learned Judge observed further that the section did not say how the court should be satisfied of this la tier fact; and that the position therefore was that, having arrived at the conclusion that the purchase money was provided by some one other than the transferee, the court had to consider whether that person intended it as a gift or not. It was at that point, Braund J. observed, that the doctrine of the resulting trust came into full and immediate play, and that, if there was no other evidence in the case, that doctrine must apply and in order to displace it, it was necessary for the transferee to prove, if he could, that the money was intended as a gift. 5. 5. The counsel of the appellant has relied strongly on this view of the Allahabad High. Court and contended that this was consistent with the decisions the Privy Council on the question. He has also contended that, in view of this position, which has been well laid down by quite a number of Privy Council decisions, the latest Division Bench decision of this Court in Kuttappan Nair's case required reconsideration. 6. Now, let us come to the latest ruling in Kuttappan Nair's case. That decision has followed two earlier decisions, one, of the Travancore-Cochin High Court, and the other, of this Court. The decision of the Travancore-Cochin High Court is Madhavan Pillai Eravi Pillai v. Perumal Pillai Vaili Amma ( 1954 KLT 295 ) and the decision of this Court is Vengadan Kunhammad v. Amina (1958 K L.T. 903), the former, a Division Bench ruling and the latter, a decision by Varadaraja Iyenger J. In the decision of the Travancore-Cochin High Court, Sankaran J., who wrote the judgement of the Court, has observed that, though the principle of advancement is not applied in India the position under the marumakkathayam law is somewhat different and that the marumakkathayam law has recognised a presumption that the acquisitions made by a marumakkathayee husband or father in the name of his wife or children are intended to be for the benefit of the sub-tarwad consisting of the wife and this children. Iyenger J. has followed this decision in the later ruling. We may observe at this state that the case before the Travancore Cochin High Court was one coming from the Travancore area and the case before Iyengar J. was one coming from the erstwhile Malabar area. Iyengar J. has considered the earlier decisions of the Travancore High court like Aiyappan Kumaran v Palavesan Chathanassari Pillai (10 T.L.R. 77) and has ultimately followed the decision of the Travancore - Cochin High Court already referred to. From these decisions of the Travancore and the Travancore Cochin High Courts it is clear that the theory or principle of advancement has been applied in a modified form among the marumakkathayees of Travancore, viz., that, if properties are purchased in the name of the wife or the children with funds advanced by the husband or the father, the sub-tavazhi of the wife and the children holds the properties as tavazihi properties amenable to marumakkathayam law. Iyengar J. has gone further and has referred to the decisions of the High Court of Madras in cases like Machikandi Parkum Maramittath Tharuvil Mootha Chettiam Veettil Chakkara Kannan Vs. Varayalankandi Kunhi Pokker and Others, AIR 1916 Mad 391 and has concluded that, in this regard, the law prevailing in the Malabar area was also the same, which was ultimately recognised and enacted as section 48 of the Madras Marumakkathayam Act, 1933. The counsel of the appellant, of course, has argued that Chakkara Kannan's case should not be taken as an authority in a case of benami and that no question of benami arose in the case. There is some force in this argument; but, no decision of the Madras High Court laying down anything contrary to the principle enunciated and followed in the Travancore area on the question has been brought to our notice. Therefore, we agree with Iyengar J. that the principle enacted in section 48 of the Madras Marumakkathayam Act was, in fact, the adoption of a modified form of the English principle of advancement to marumakkathayees. The latest decision in Kuttappan Nair's case, the correctness of which has been questioned, follows the aforesaid decisions in Vengadan Kunhammad's case (1958 KLT 903) and Mathevan Pillai Eravi Pillai's case ( 1954 KLT 295 ). And we do not find anything wrong in the reasoning of the Division Bench in that case. It may be that this question was not raised in this form in Janu Vs. Cheeru, (1960) KLJ 970. However, we add that, even if the decision in Janu's case applies to the case before us, still the appellant will not succeed. As we have already indicated, the reasoning of Joseph J., who has followed the reasoning of Braund J. of the Allahabad High Court, indicates that the person who claims that a purchase is benami has not only to establish that the consideration came from a third party, but has to establish further that the said third party did not intend the purchase money to be a gift. And, if there is no evidence in the case on this second question, then alone the principle of resultant trust applies. And, if there is no evidence in the case on this second question, then alone the principle of resultant trust applies. There are circumstances in this case which indicate that the intention of the first defendant when he advanced the consideration for the purchase of the house was that the respondent, his wife, should have the beneficial interest in the property, in other words, that the purchase money must have been intended as a gift to her. This is evident from the subsequent conduct too. Ever since the purchase, the respondent has been paying the Government revenue and the municipal tax and she has also been living in the house, may be, with the first defendant. Thus, in any view of the matter, applying either of the decisions, the conclusion of the lower court appears to be correct. The appeal is consequently dismissed with costs.