JUDGMENT N.N. Sharma, J. - This appeal is directed against judgment and decree by Sri M. Waha-juddin, learned District Judge, Etawah dated 19.11.1973. Learned Judge dismissed Civil Appeal No. 13 ot 1972 and upheld the judgment of Sri N.B. Asthana in Civil Misc. Case No. 48 of 1970. 2. The following pedigree which was not controverted before me, shall be helpful to appreciate the point involved in this appeal; The following pedigree which was not controverted before me, shall be helpful to appreciate the point involved in this appeal: 3. The property in dispute is a house and shop situated in Qasba Bharthana, Mohalla Motiganj, Paxgana, district Etawah, as detailed at the foot of the objection preferred under Section 47 of the Code of Civil Procedure preferred by respondents 1 and 2 in execution case No. 23 of 1970. 4. Decree-holder Dharam Narain appellant obtained decree in suit No. 16 of 1978 for recovery of Rs. 6255/- against the assets of deceased Ram Sewak in the hands of objector and the remaining opposite parties. In execution, the decree-holder got the aforesaid property attached. 5. Opposite parties 1 and 2 preferred an objection on the ground that the attached property belonged to their mother Smt. Bhagwati Devi who had purchased the property out of her own Stridhan through a registered sale deed dated 17.11.1967 from one Babu Ram. She got a site plan from the town Area Committee, Bhartnana approved and constructed a Varandah and shop in 1950. Smt. Bhagwati Devi died leaving objectors who were unmarried minors at the time of her death. Ram Sewak subsequently remarried Smt. Rajeshwari Devi. Smt. Rajeshwari Devi and her issues colluded with decree-holder and wanted to garb this property to their prejudice. So there was a prayer for releasing the said property from attachment and sale in execution of the decree aforesaid. 6. Decree-holder alone contested this objection on the ground that the property was purchased by Ram Sewak in the name of Smt. Bhagwati Devi and the consideration flowed from the pocket of Ram Sewak it was not purchased by Smt. Bhagwati Devi from her Stridhan, Kam Sewak executed usufructuary mortgage deed of this property in favour of Laxmi Narain, father of decree-holder objectors had never been in possession over the disputed property. Ram Sewak had perfected his title by adverse possession. Ram Sewak had perfected his title by adverse possession. The objection was simply preferred at the instance of Smt. Rameshwari Devi to delay the execution of the decree. 7. Parties adduced oral and documentary evidence in the executing Court. It was found by the learned Civil Judge that the property in d dispute belonged to Smt. Bhagwati Devi and objectors were in possession thereof after the death of Smt. Bhagwati Devi. Ram Sewak did not purchase this property, in the result the objection was permitted to prevail, and the property in dispute was released from attachment. 8. Decree-holder went up in appeal which failed. Aggrieved by that decision, this second appeal was preferred. 9. I have heard learned counsel for the parties and perused the record. 10. Sri S.P. Srivastava, learned Advocate for the decree-holder argued before me that both the Courts below erred in holding that Smt. Bhagwati Devi was not the Benamidar but real owner of the property in dispute. They simply concentrated about the source of consideration and did not apply proper guidelines to determine the nature of Benami transaction while appraising the evidence that had been adduced by the parties. In this connection, reliance was placed upon Jaydayal Poddar v. Mst. Bibi Hazras and others, AIR 1974 S.C. 171 in where it was observed : "Though the question, whether a particular sale is Benami or not, is largely one of fact, and for determination this question no absolute formula or acid test, uniformly applicable in all situations can be laid down, yet in weighing the probabilities and for gathering the relevant indicia, the Courts are usually guided by these circumstances : (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase (3) motive, if any, for giving the transaction a Benami colour ; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title-deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale. The above indicia are not exhaustive and their efficacy varies according to the facts of each case. The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless No. 1, viz the source when the purchase money came, is by far the most important test for determining whether the sale standing in the name of one person, is in reality for the benefit of another." 11. The contention of learned Advocate for the appellant was that the conduct of the parties was over-looked by the Courts below; similarly, the admissions made by Ram Sewak himself about his being the sole owner of this property were over-looked Ext. 1 is the mortgage deed executed by Ram Sewak as the owner of the disputed property and as guardian of the objectors-while mortgaging it in favour of Laxmi Narain, O.P.W. 6. It was conceded by Smt. Asha Devi objector herself that Laxmi Narain was in possession and this mortgage deed was acted upon. Thus, the learned Courts below overlooked the fact that Ram Sewak dealt with this property as his own even in a subsequent sale deed executed in favour of his second wife relating to this property, copy of which is on record, in favour of Smt. Rajeshwari Devi. Ram Sewak described himself as the owner of this property. Objectors never assailed the aforesaid transactions after attaining the age of majority. 12. It was further pointed out that Smt. Rajeshwari Devi in Para 11 of her additional pleas alleged that this property belonged to Ram Sewak and had been mortgaged by him with Laxmi Narain, father of plaintiff alleging it as his own property on 11.1.1965 for a period of five years. 13. I have carefully considered all these contentions. I have also perused the entire oral and documentary evidence on record. I do not find any merit in this appeal for the following reasons ; (1) Objectors claimed this property through their mother Smt. Bhagwati Devi who expired in 1950. Both the objectors were helpless minors and had to be brought-up by their father Ram Sewak who was not a stranger to them but their guardian. Smt. Rajeshwari Devi is interested in alleging this property as belonging to Ram Sewak as she would not get any share in this property if it belonged to Smt. Bhagwati Devi despite all the admissions made by Ram Sewak in the sale deed or mortgage deed. Smt. Rajeshwari Devi is interested in alleging this property as belonging to Ram Sewak as she would not get any share in this property if it belonged to Smt. Bhagwati Devi despite all the admissions made by Ram Sewak in the sale deed or mortgage deed. As regards the decree-holder, he wants to disown the admissions of Ram Sewak in sale deed executed in favour of Smt. Rajeshwari Devi by alleging that deed as fictitious. Learned Courts below rightly pointed out that he cannot be permitted to blow hot and cold. It is not open to appellant to disown the sale deed dated 26.12.1966 (Ext. 8) but utilise the recital in that sale deed executed in favour of Smt. Rajeshwari Devi. The admissions of Ram Sewak or Rajeshwari Devi have no efficacy so far as the objectors are concerned simply because the objectors do not trace their title through Ram Sewak or Smt. Rajeshwari Devi. So all these admissions, which are simply irrelevant so far as the objectors are concerned, were rightly ruled out by the Courts below. It was further pointed out by the Courts below that Laxmi Narain procured some bogus entries in the account book about brick kiln of Deen Dayal Avasthi to show that Ram Sewak purchased 12,040 bricks for Rs. 453.37 from the brick kiln. They also discarded the testimony of Ram Ratan on the ground that he was not employed as Munim at the brick kiln. Prag Narain (O.P.W. 5) admitted that Laxmi Narain happened to be a partner in Avasthi brick kiln and in such circumstances, account books, which were not kept in regular course of business were rightly ruled out. (2) It is further significant to note that Ram Sewak could have dealt with this property unhampered by the objectors who were minors and at his mercy; he could have made any assertion contrary to their interest as his first wife Smt. Bhagwati Devi was already dead. Had any stranger dealt with this property as his own, the matter would have been entirely different. However, in view of the close relationship of Ram Sewak with the objectors and the circumstances of the case, the appraisal of evidence made by Courts below was perfectly sound. Had any stranger dealt with this property as his own, the matter would have been entirely different. However, in view of the close relationship of Ram Sewak with the objectors and the circumstances of the case, the appraisal of evidence made by Courts below was perfectly sound. (3) The mere fact that Smt. Bhagwati Devi happened to be the wife of Ram Sewak could not justify the presumption that the consideration of the sale deed executed on 17th November, 1947 by Babu Ram in favour of Smt. Bhagwati Devi flowed from the pocket of Ram Sewak. (4) Both the Courts below laid the burden of proof on right shoulder when they held that it was for the decree-holder to show that the sale deed dated 17.11.1947 executed by Babu Ram in favour of Smt. Bhagwati Devi was a Benami transaction. It appears that the sale deed is a registered instrument. The entire consideration was paid before the Sub Registrar by Smt. Bhagwati Devi. It is the consistent case of the objectors, as substantiated by Ram Charan O.P.W. 2, brother of late Bhagwati Devi that Smt. Bhagwati Devi paid the consideration from her own pocket which was her Stridhan. Ram Sewak had no funds to invest any amount in this transaction. It is correct that objector Asha Devi would have been an infant at the time of execution of the sale deed and so was not competent to testify about that transaction but the testimony of Ram Charan is not lightly dis card able. Ram Charan gave his age 70 years ; being own brother of late Smt. Bhagwati Devi he could have been present at the time of execution of the sale as vouched by him. A look at sale deed Ext. 1, executed by Babu Ram in favour of Smt. Bhagwati Devi shall go to disclose that Ram Sewak was nowhere to be found at the time of that transaction. It is in evidence that Ram Sewak was financially embarrassed and had not spent money to the tune of Rs. 3000/- in purchasing the shop, he must have been present to witness the transaction in favour of his own wife. Vidya Sagar and Ram Swarup were the only attesting witnesses to the salr deed. There is nothing in the sale deed to support the allegation of Babu Ram that consideration flowed from the pocket of Ram Sewak. 3000/- in purchasing the shop, he must have been present to witness the transaction in favour of his own wife. Vidya Sagar and Ram Swarup were the only attesting witnesses to the salr deed. There is nothing in the sale deed to support the allegation of Babu Ram that consideration flowed from the pocket of Ram Sewak. Learned lower appellate Court stigmatised him as a yes-man of decree-holder. (5) Both the Courts believed the allegation of objectors that Smt. Bhagwati Devi was the purchaser of this house and the consideration flowed out of her Stridhan. Ram Sewak had nothing to do with this transaction. Various rulings have been cited in his judgment by Sri N.B. Asthana, learned Civil Judge, Etawah to show that there is no presumption of advancement in India. He also relied upon Chittalurisitamma and another v. Saphar Sitpati Rao and another AIR 1938 Mad. 8 , in which it was held that even if money is contributed by husband, it is not conclusive proof of benami character of purchase. Similarly, in Mohd. Hussain Khan v. Mustafa Hussain Khan and another, AIR 1946 Alld. 85, it was held that where the consideration for the various purchases in the name of a wife has come from the pocket of the husband although no presumption arises that purchases are made for the benefit of the wife but when none of the immediate heirs of the husband have fora long time claimed the properties, that is sufficient reason for holding that in this particular instance the husband did intend that the properties should go to his wife for her own benefit and advancement. (6) Learned Advocate for appellant stressed before me that the name of Ram Sewak occurred in the register of circumstance and property tax in the years 1950-51 and subsequently in the years 1970-71. The mortgage deed executed by Ram Sewak showed possession of Ram Sewak and of mortgage over the property in dispute and thus the circumstances of the case go to show that the transaction was Benami. In P.B. Reddy v. State of Mysore and others, AIR 1969 S.C. 655 , it was held that the burden of proof is upon the person who alleges the transaction to be a benami one. It has to be seen as to whether this burden had been discharged by the decree-holder in this case ? 14. In P.B. Reddy v. State of Mysore and others, AIR 1969 S.C. 655 , it was held that the burden of proof is upon the person who alleges the transaction to be a benami one. It has to be seen as to whether this burden had been discharged by the decree-holder in this case ? 14. In this connection, I have already preferred to the sale deed Ext. 1 which does not contain any whisper of the fact that Ram Sewak had anything to do with this transaction. The next important circumstances is that at the time of purchase of the shop and house etc. there was no reason to purchase the property Benami. It was not in existence in this shape and so the statement of Ram Charan that Smt. Bhagwati Devi got the site plan of the house approved and spent money in constructions finds a material support from Ext. 2 is an old document dated 9.6.1948. Both the Courts below found that at the time of execution of the sale deed or preparation of site plan, Ram Sewak was not under the necessity of getting these documents prepared in the name of his wife. These documents were old or authentic and came into existence long before the controversy arose. This documentary evidence is of unimpeachable character. (7) As regards the findings of fact, I am bound to accept the appraisal of evidence made by the Courts below. I do not find these findings to be perverse which could justify my interference. In Deity Pattabhiramaswamy v. Henymayya and others AIR 1959 S.C. 57 , it was observed : "The provisions of Section 100 are clear and unambiguous. There is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however, gross the error may seem to be. Nor does the fact that the finding of the first appellate Court is based upon some documentary evidence make it any-the-less a finding of fact. A judge of the High Court has, therefore, no jurisdiction to interfere in second appeal with the findings of fact given by the first appellate Court based upon an appreciation of the relevant evidence." 15. So I find that this appeal must fail. No other point was argued before me. 16. In the result, the appeal is dismissed with costs. The impugned judgment and decree are affirmed.