M. K. SHAH, S. H. SHETH, J. ( 1 ) THIS first appeal and the cross-objections filed therein arise out of the judgment and decree of the learned Civil Judge (Senior Division) Rajkot in Special Civil Suit No. 65 of 1971. The appellant is the original plaintiff and she is a married daughter of deceased Bhaishanker Odhavji Pandya who died intestate on 4th October 1969 at Rajkot. The respondents are the original defendants. Defendant No. 1 is the widow of the deceased. Defendants Nos. 2 and 3 are his sons and defendants Nos. 4 5 and 6 are his daughters. ( 2 ) THE plaintiff filed the suit for partition of the properties mentioned in Schedules A and B attached to the plaint. The property mentioned in Schedule A is a house called Pandit Niwas situated in the area called Prahlad Plot at Rajkot valued at Rs. 40 0 by the plaintiff. The property mentioned in Schedule B consists of cash amounts alleged to have been deposited in two Banks at Rajkot and certain amount alleged to be in the postal savings bank account at Rajkot as also gold and silver ornaments cash at hand amounting to Rs. 2 0 and other movable articles. It was the plaintiffs case that the plot of land on which the house was later constructed was purchased by the deceased in the name of defendant No. 1 by his own moneys and he later got the house constructed thereon also at his expense. The cash and other movables also belonged to the deceased. The plaintiff therefore claimed 1/7th share in the said properties. . . . . . . . . . . . . . . . . . . . . . ( 3 ) MR. Suresh M. Shah the learned Advocate appearing for the appellant submits that the lower court erred in holding that the house belonged to defendant No. 1 inspite of the finding by that court that initially the land was purchased as well as construction put up thereon by the funds contributed by the husband. Mr. . . ( 3 ) MR. Suresh M. Shah the learned Advocate appearing for the appellant submits that the lower court erred in holding that the house belonged to defendant No. 1 inspite of the finding by that court that initially the land was purchased as well as construction put up thereon by the funds contributed by the husband. Mr. Shahs contention is that unless it is shown by defendant No. 1 that the land was purchased by her own earnings and that the cost of construction also was meet from her exclusive funds it cannot be held that the house belongs to her and the learned Judge therefore erred in not holding that the house was the property of the husband left behind him to be inherited by his heirs including the plaintiff who had 1/7th share therein and that she was therefore entitled to partition. . . . . . . . . . . . . . . . . . . . ( 4 ) NOW before we deal with the evidence we shall dispose of the preliminary objection which is raised by Mr. Nanavati appearing for respondents Nos. 1 and 3 to 6. Mr. Nanavatis contention is that the plaintiffs suit is not maintainable as the same has been brought by the daughter of the deceased in respect of a dwelling house which is wholly occupied by members of the family of the deceased. Mr. Nanavati relies on the provisions contained in sec. "23 of the Hindu Succession Act which reads thus 23 Where a Hindu intestate has left surviving him or her both male and female heirs specified in clauss I of the Schedule and his or her property includes a dwelling house wholly occupied by members of his or her family then notwithstanding anything contained in this Act the right of any such female heir to claim Partition of the dwelling house shall not arise until the male heirs choose to divide thei respective shares therein; but the female heir shall be entitled to a right of residence therein:provided that where such female heir is a daughter she shall be entitled to a right of residence in the dwelling house only if she is unmarried or has been deserted by or has separated from her husband or is a widow". Mr. Mr. Nanavatis submission is that the suit house is a dwelling house; that the same is wholly occupied by the members of the family of the deceased and that therefore the plaintiffs suit for partition of the suit house she being a female heir is not maintainable because the right of any such female heir as is specified in sec. 23 to claim partition of the dwelling house does not arise until the male heirs choose to divide their respective shares therein. It is nobodys case that the male heirs have chosen to divide their respective shares and therefore the bar contained in sec. 23 applies to the proceedings instituted by the plaintiff. We are unable to accept this contention of Mr. Nanavati. In the first instance in view of the fact that the suit is for partition of a property which is partly used for dwelling purposes and partly let out as a shop it would be difficult to hold that the suit is for partition of a dwelling house forming part of the property left by the deceased intestate. But apart from the same there cannot be any dispute that the property is not wholly occupied by the members of the family of the deceased. The property is occupied partly by the members of the family of the deceased and partly by a tenant who is in occupation of a shop in a part of the premises and therefore even if the property is taken as a dwelling house on the ground that a substantial part of it is being used for that purpose even then the requirement of occupation of the entire property by the members of the deceased family is not met with in view of the fact that that property is partly occupied by the members of the family and partly by the tenant. Mr. Nanavati attempted to contend that what is meant to be conveyed by the relevant provisions of sec. 23 is that the dwelling house must be substantially occupied by the members of the family of the deceased. In view of the specific words wholly occupied by members of his or her family used in the said section such an interpretation is out of question. Again it is an admitted position that the plaintiff is in occupation of a part of the dwelling house. She is a married daughter of the deceased. In view of the specific words wholly occupied by members of his or her family used in the said section such an interpretation is out of question. Again it is an admitted position that the plaintiff is in occupation of a part of the dwelling house. She is a married daughter of the deceased. A married daughter of the deceased in our opinion cannot be termed as a member of the family of the deceased and in this view of the matter also it cannot be said that the house is wholly occupied by the members of the family of the deceased. The preliminary objection raised therefore by Mr. Nanavati is not sustainable. ( 5 ) NOW turning to the evidence in our opinion there is cogent and reliable evidence both documentary as well as oral on the record to justify a conclusion that the house is owned by defendant No. 1 and is not the property belonging to the deceased and left by him as such. Two or three features are very important as they emerge on going through the evidence. The deceased had no settled or regular occupation and his financial condition was such as would hardly enable him to maintain his family. It would be difficult for such a person to accumulate savings to purchase land and to build a property thereon. His wife was an earning member of the family. There is nothing unnatural in her say that she worked as a cook in Barton Female Training College for 18 months and thereafter was engaged in various occupations as deposed to by her. There is documentary evidence which strongly corroborates her say. The first and foremost is Ex. 63 which is a copy of Lekh issued in her name in respect of the land of the suit house. As the Lekh shows she has purchased the land at an auction for a price of Rs. 358-6-8. The price was paid by two instalments and the last instalment was paid on 10th June 1932 and thereafter the Lekh was issued in respect of 124. 6 sq. yds. of land stating that the said land was sold to her. This Lekh was issued on 3rd October 1932 ( 6 ) THEN there are tax receipts in respect of water charges paid at Ex. 64 to 68. These receipts are for the period between the years 1943 and 1952. 6 sq. yds. of land stating that the said land was sold to her. This Lekh was issued on 3rd October 1932 ( 6 ) THEN there are tax receipts in respect of water charges paid at Ex. 64 to 68. These receipts are for the period between the years 1943 and 1952. There is then a receipt for house tax for the year 1956-57 at Ex. 69 and there is also a receipt for water tax for 1956-57 as at Ex. 70. This therefore shows that not only the land was purchased in the name of defendant No. 1 but the entire property consisting of the land and building stood in her name ever since the purchase of the land till the death of her husband. ( 7 ) MR. Shah as against this drew our attention to Ex. 34 which are depositions of the deceased recorded in Civil Suit No. 20 of 1953 against a tenant of the shop premises in the suit house. It is stated in these depositions that the premises are required as the witness wanted to do his astrological business at his house. Mr. Shah draws our particular attention to a statement of the deceased in these depositions to the effect that about 16 years before he gave the evidence he had constructed a house after obtaining the land. In our opinion this statement made in these depositions is not inconsistent with the ownership of the house vesting in defendant No. 1. After all the deceased was the husband of defendant No. 1 and he was managing the property on her behalf. He may therefore identify himself with his wife and describe wifes property as if it is his own. But there is also on record subsequent deposition of the deceased himself in another suit filed against the tenant in 1956 being Civil Suit No. 83 of 1956. In this deposition it has been clearly stated that the rent note in respect of the premises stood in the name of the deponents wife Diwali that is defendant No. 1 and that the deponent that is the deceased-had taken rent note on her behalf. This therefore clearly negatives the possibility of the ownership of the house being in the deceased as was sought to be canvassed on a solitary statement made in the earlier depositions. This therefore clearly negatives the possibility of the ownership of the house being in the deceased as was sought to be canvassed on a solitary statement made in the earlier depositions. The documents fully support defendant No. 1 and there is therefore evidence on record which leads us to a conclusion that the house belongs exclusively to defendant No. 1. ( 8 ) MR. Nanavati in this connection draws our attention to VIDHYADHAR KRISHNARAO MUNGI AND OTHERS V. USMAN GANI SAHEB KONKANI AND OTHERS A. I. R. 1974 S. C. 658. As observed at page 660. "it is commen knowledge that in those days a husband used to manage the property of his wife because she was not well educated and used to keep herself in Parda. Thus mere management of the husband would not prove his ownership". Mr. Nanavati also relies on the following observations in KRISHNANAND V. STATE OF MADHYA PRADESH (1977) 1 S. C. C. 816 in support of his case. The burden of showing that a particular transaction is benami and the owner is not the real owner always rests on the person asserting it to be so and this burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstance unerringly and reasonably raising an inference of that fact. The essence of benami is the intention of the parties and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of the serious onus that rests on him nor justify the acceptance of mere conjecture or surmise as a substitute for proof. It is not enough merely to show circumstances which might create suspicion because the court cannot decide on the basis of suspicion. It has to act on legal grounds established by evidence. ( 9 ) MR. Nanavati is right when he submits that in the instant case also the burden which heavily lay on the plaintiff who came to the court with a case that the property though it stands in the name of defendant No. 1 really belongs to the deceased has failed to discharge that burden. ( 9 ) MR. Nanavati is right when he submits that in the instant case also the burden which heavily lay on the plaintiff who came to the court with a case that the property though it stands in the name of defendant No. 1 really belongs to the deceased has failed to discharge that burden. The evidence led by the plaintiff does not carry her case any further and we therefore uphold the finding of the lower court that the suit house is of the exclusive ownership of defendant No. 1 though we have arrived at that conclusion on grounds different from those which weighed with the learned Judge. . . . . . . . . . . . . ( 10 ) THE cross-objections are confined to the finding with regard to the bank accounts and movables. So far as the bank accounts are concerned it is an admitted fact that they originally stood in the joint names of defendant No. 1 and her deceased husband. Beyond the bare word of defendant No. 1 there is nothing to show that the amount of Rs. 21 0 admittedly standing in the joint names was her exclusive property. In such cases it has to be borne in mind that a Hindu husband has a tendency to deposit such savings in the joint names of himself and his wife. As observed in GURAN DITTA AND ANOTHER V. T. RAM DITTA A. I. R. 1928 P. C. 172 an exception made in English law to the effect that a gift to a wife is presumed where money belonging to the husband is deposited at a Bank in the name of a wife or where a deposit is made in the joint names of both husband and wife has not been admitted in Indian law under the different conditions which attach to family life and where the social relationships are of an essentially different character. The principle to be applied has been stated in KERWICK V. RERWICK A. I. R. 1921 P. C. 56 in the following terms:"the general rule and principle of the Indian law as to the 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 decisions in the case of GAPEEKRIST V. GUNGAPERSAD (1854) 6 M. I. A. 53 AND UZHUR ALI V. BEBEE ULTAF FATIMA (1869) 13 M. I. A. 232 that owing to the widespread and persistent practice which prevails amongst the natives of India whether Mohomedan or Hindu for owners of properly to make grants and transfers of it benami for no obvious reason or apparent purposes without the slighest intention of vesting in the donee any bene ficial 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 negativing 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 presumption of an intended advancement as there is in England". It was therefore held that there was no presumption in the deposit note of an intended advancement in favour of Mr. Gurji and that the sum of Rs. 1 0 0 and interest were the property of Teku Ram and remained at his disposal at the date of his death as found in the decision of the courts below. Here also there cannot be any presumption that the amounts which as admitted by defendant No. 1 were deposited in the bank accounts by her husband in the joint names of herself and her husband did exclusively belong to her. On the contrary the presumption would be that the amounts belonged to the husband and he owing to the aforesaid widespread and persistent practice deposited the same in the joint names of himself and his wife. On the contrary the presumption would be that the amounts belonged to the husband and he owing to the aforesaid widespread and persistent practice deposited the same in the joint names of himself and his wife. The finding of the learned Judge therefore that the State Bank deposit to the tune of Rs. 21 0 was the property of the deceased cannot be said to be erroneous. There is no evidence on record except the bare word of defendant No. 1 and the fact that the amounts were in the joint names of herself and her husband to show that the same belonged to her exclusively. But she would be entitled to a deduction of Rs. 2 0 spent for the funeral and other ceremonies as held by the trial court and the decree therefore in this respect of the trial court is confirmed. . . . . . . . . . . . . . . . . . . . . . ( 11 ) THE result will be that both appeal as well as cross-objections will be dismissed. However there will be no order as to costs in both. .