Judgement O. P. SAXENA. J.:- This is a First Appeal against the Judgment dated 2-6-1969 passed by the learned Civil Judge, Bareilly decreeing a suit for declaration that the property in suit belongs to the plaintiff and is not liable to attachment and sale in recovery of sales tax dues against her husband defendant No. 2 and further restraining defendant No. 1 from selling the property in the recovery of the said dues with costs. 2. Dispute relates to two houses detailed at the foot of the plaint. One of the houses bears Municipal Nos. 11/475 and 11/476 situated in Mohalla Alamgiriganj Bans-Ki-Mandi, Bareilly. The other house is No. 124-A, Civil Lines, Bareilly. 3. Paper No. 9-ga dated 31-3-1952 is the copy of the sale deed executed by one Chheda Lal in favour of the plaintiff in respect of the house in Alamgiriganj for a sum of Rs. 5,000/-. 4. Paper No 13-ga is the copy of the sale deed dated 14-7-1952 executed by Ram Chandra and Roshan Lal in favour of the plaintiff in respect of the land of the house No. 124-A, Civil Lines for a sum of Rs. 14,500/- 5. Plaintiff Smt. Ram Peari Gupta is the wife of Lala Ram Bhajan Lal Gupta. Lala Ram Bhajan Lal Gupta carries on the business of Vegetable Ghee and Kirana in Ghee Mandi, Shivaji Road, Bareilly for the last 30 years or so. He did not pay any Sales Tax during the period between 1950 and 1957. 6. On 7-9-1952 a notice was issued by the Sales Tax Department to defendant No. 2 Lala Ram Bhajan Lal Gupta calling upon him to furnish returns. He did not submit any returns for the years 1950-51, 1951-52. 7. The following sales tax dues were assessed :- Year Rs. 1950-51 Rs. 3,006.25 P. 1951-52 Rs. 9,375.00 P. 1952-53 Rs. 29,690.50 P. 1953-54 Rs. 21,875.00 P. 1954-55 Rs. 18,750.00 P. 1955-56 Rs. 26,562.50 P. 1956-57 Rs. 12,500.00 P. Total Rs. 1,22,659.25 P. 8. On 7-9-1962 a warrant of attachment Paper No. 87-ga was issued attaching the two houses for the recovery of the sale tax dues against defendant No. 2 9. On 15-12-1962 prohibitory order Ext. 2 was issued restraining the plaintiff from selling the attached property. 10. 18,750.00 P. 1955-56 Rs. 26,562.50 P. 1956-57 Rs. 12,500.00 P. Total Rs. 1,22,659.25 P. 8. On 7-9-1962 a warrant of attachment Paper No. 87-ga was issued attaching the two houses for the recovery of the sale tax dues against defendant No. 2 9. On 15-12-1962 prohibitory order Ext. 2 was issued restraining the plaintiff from selling the attached property. 10. The plaintiff filed an objection against the attachment and claimed that she was the owner of the property in suit and the same could not be attached and sold in the realisation of sales tax dues against her husband. The objection was dismissed. On 5-12-1966 plaintiff gave a notice vide copy Ext. 26-ga-1 under S.80 C.P.C. 11. On 1-6-1967 plaintiff filed the suit for declaration that she is the owner of the property in suit and also for a permanent injunction restraining defendant No. 1 from selling the property in the realisation of sales tax dues against her husband. She claimed to have purchased the house in Alamgiriganj from her own money. She further claimed to have purchased the land of the other house and also built the house from her own money. Her case was that her husband has no concern with the property. 12. The suit was contested by defendant No. 1 mainly on the allegations that the property in suit belongs to defendant No. 2 and the sale deeds were obtained Benami in the name of the plaintiff. It was said that defendant No. 2 got the house No. 124-A, Civil Lines constructed. It was, therefore, contended that both the houses are liable to sale in the realisation of sales-tax dues against defendant No. 2. The pleas that the suit is under-valued that the court-fee paid is insufficient, that the suit is barred u/s.233 (m) of the U. P. Land Revenue Act and that the suit is bad for want of notice u/s.80 C.P.C. were also raised. 13. That learned Civil Judge believed the plaintiffs version and held that she is the owner of the property in suit. He repelled the plea that she is merely a Benamidar. The other issues were also decided in favour of the plaintiff. The suit was accordingly decreed and hence this appeal. 14. 13. That learned Civil Judge believed the plaintiffs version and held that she is the owner of the property in suit. He repelled the plea that she is merely a Benamidar. The other issues were also decided in favour of the plaintiff. The suit was accordingly decreed and hence this appeal. 14. The main point for determination in this appeal is as to whether the plaintiff is merely a Benamidar and defendant No. 2 is the real owner of the property in suit and the same is liable to sale in the recovery of the sales-tax dues against defendant No. 2. 15. In view of the numerous Supreme Court decisions on benami transactions some of which are reported in Surasaibalini v. Phanindra Mohan ( AIR 1965 SC 1364 ), Jaydayal Poddar v. Bibi Hazra ( AIR 1974 SC 171 ) and Bhim Singh v. Kan Singh ( AIR 1980 SC 727 ) the legal position is that the burden of proving Benami rests on the person who makes such an assertion. The law laid down in Mahadei v. Lachmi Narain (AIR 1947 All 399) and Hiraluxmi v. I.T. Officer ( AIR 1955 Pat 404 ) cannot be deemed to be good law and merely because the plaintiffs objection against the attachment of the property in suit was rejected the burden did not shift on her to prove her title. Benami transactions between husband and wife are so common in India. It was held in Gwasha Lal v. Kartar Singh (AIR 1961 J and K 66) that in such cases a slight proof may be sufficient for defendant to discharge the burden. 16. In a case reported in Jaydayal Poddar v. Bibi Hazra ( AIR 1974 SC 171 ) it was held that for determining the Benami nature of transaction, the courts are usually guided by these circumstances: (1) The source from which the purchase money came: (2) the nature and possession of property after the purchase; (3) motive if any for giving the transaction a benami colour: (4) the position of parties and relationship if any: (5) the custody of title deeds after the sale and (6) the conduct of parties concerned in dealing with the property after the sale. 17. 17. In a case reported in Bhim Singh v. Kan Singh ( AIR 1980 SC 727 ) the position was summed up thus : (1) the burden of showing that a transfer is benami transaction lies on the person who asserts that it is such a transaction: (2) if it is proved that the purchase money came from a person other than the person in whose favour the property is transferred the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money unless there is evidence to contrary: (3) true character of transaction is governed by the intention of the person who has contributed the purchase money and (4) the question of what his intention was has to be decided on the basis of surrounding circumstances, the relationship of the parties, the motive governing their action in bringing about the transaction and their subsequent conduct. 18. In a case reported in Gapadibai v. State of M. P. ( AIR 1980 SC 1040 ) it was held that in order to prove the benami nature of a transaction of purchase by wife in her own name, evidence must be led to show: (1) that defendants husband paid the consideration: (2) that he had the custody of the sale deed : (3) that he was possession of the property and (4) the motive for the transaction. 19. Plaintiff Smt Ram Peari Gupta is the wife of defendant No. 2 Lala Bhajan Lal Gupta. Both of them used to live in a rented house prior to the purchase of a house in Alamgiriganj. After the purchase of the said house they began living there. On the construction of House No. 124-A Civil Lines they shifted to the said house. They are living together eversince the marriage of the plaintiff in the year 1932 and the relations between them are cordial. 20. Defendant No. 2 Lala Bhajan Lal Gupta carries on business of vegetable ghee on a big scale. 21. Defendant No. 2 Lala Bhajan Lal Gupta did not submit any sales tax returns for the years 1950-51, 1951-52, 1952-53, 1953-54, 1955-56 and 1956-57 and the outstanding dues against him amount to Rs. 1,22,659.25. 22. The house in Alamgiriganj was purchased on 31-3-1952 and the land of the house No. 124-A Civil Lines was purchased on 14-7-1952. 21. Defendant No. 2 Lala Bhajan Lal Gupta did not submit any sales tax returns for the years 1950-51, 1951-52, 1952-53, 1953-54, 1955-56 and 1956-57 and the outstanding dues against him amount to Rs. 1,22,659.25. 22. The house in Alamgiriganj was purchased on 31-3-1952 and the land of the house No. 124-A Civil Lines was purchased on 14-7-1952. Both the sale deeds were executed in favour of the plaintiff. 23. No original sale deed was filed before the trial court. The plaintiff stated that the sale deed of the house in Alamgiriganj was with her counsel Sri Banwari La1 and he told her that it was lost. She further stated that the original sale deed of the land of house No. 124-A Civil Lines has been filed in O.S. No. 66 of 1957 of the court of Civil Judge, Bareilly. 24. Plaintiffs father Sri Brij Mohan was a Naib Tehsildar and he died in the year 1957, two or three years after his retirement. 25. The plaintiff claimed to have paid the sale consideration of the house in Alamgiriganj from her own money. She stated that she had obtained some cash in her marriage and she had deposited the same in Bank. She has filed a copy of her Bank account in the Punjab National Bank for a period from May 17, 1952 to Oct. 16, 1953. She did not file a copy of the Bank account for the earlier period. However, the consideration of the sale deed was only Rs. 5,000/- and it is not improbable that the wife of a businessman carrying on business of the magnitude which made him liable to pay sales tax dues amounting to Rs.1,22,659.25 for a period of seven years, should have possessed Rs. 5,000/- of her own for purchasing the house. 26. The plaintiff claimed to have purchased the land of house No. 124A Civil Lines after withdrawing Rs. 14,500/- from her Bank account. Paper No. 81-ga is the statement of her Bank account. This shows a withdrawal of Rs. 14,500/- on 14-7-1952. It is, however, interesting that plaintiffs own witness P.W. 2 Dwarka Prasad who is said to have worked as commission agent in negotiating the deal stated that plaintiffs father gave Rs. 10,000/- to the plaintiff at the time of the sale deed. This shows a withdrawal of Rs. 14,500/- on 14-7-1952. It is, however, interesting that plaintiffs own witness P.W. 2 Dwarka Prasad who is said to have worked as commission agent in negotiating the deal stated that plaintiffs father gave Rs. 10,000/- to the plaintiff at the time of the sale deed. There is inherent evidence to show that the Bank account from which the money was withdrawn by the plaintiff was only a faked account in her name and was in fact the account of her husband, defendant No. 2 Lala Bhajan Lal Gupta. 27. The plaintiff stated that her signatures were not obtained at the time she deposited any money, that she did not withdraw any amount from the Bank prior to 14th July, 1952, that she made withdrawals for constructing the house, that she could not tell as to how much money was withdrawn by her that she never received sums of Rs. 10,000/- or Rs. 15,000/- from any one and that Har Narain was the servant of her father. 28. The statement of the Bank account shows that withdrawals of Rs. 7,600/- by cheque on 9-6-1952, Rs. 6,000/-by a cheque on 11-6-1952 through Har Narain, Rs. 14,500/- by a cheque on 3-7-1952 through Har Narain and Rs. 14,500/- by a cheque on 14-7-1952 through Har Narain. If the first withdrawal made by the plaintiff was Rs. 14,500/- for this sale deed who made the earlier withdrawals? Various deposits were made during the period from 19-5-1952 to 26-6-1952 and the same included sums of Rs. 500/-, Rs. 1290/-, Rs. 600/-, Rs. 5300/-, Rs. 6,000/-, Rs. 3500/-, Rs. 5,500/- and Rs. 5,700/-. On 14-7-1952 a sum of Rs. 14,500/- was withdrawn and a sum of Rs. 15,000/- was deposited. On 27-7-1952 a sum of Rs. 12,000/- was deposited. On 11-9-1952 a sum of Rs. 1400/- was deposited. The plaintiffs version is that no one ever gave her Rs. 10,000/- or Rs. 15.000/- for being deposited. If that was so the various deposits must have been made by her husband. 29. There are other withdrawals from the Bank which further made it clear that the account was being operated by her husband :- (1) 27-7-1952 Rs. The plaintiffs version is that no one ever gave her Rs. 10,000/- or Rs. 15.000/- for being deposited. If that was so the various deposits must have been made by her husband. 29. There are other withdrawals from the Bank which further made it clear that the account was being operated by her husband :- (1) 27-7-1952 Rs. 7,000/- Ganga Saran (2) 30-7-1952 320/- Hari Kishan Das (3) 4-9-1952 1,200/- Ganga (4) 8-9-1952 1,000/- self (5) 9-9-1952 1,500/- self (6) 9-9-1952 300/- Kalyan Das Agarwal (7) 11-9-1952 1,400/- R. B. L. Gupta (8) 12-9-1952 202/- Mahmood Hasan (9) 13-9-1952 420/- Rafiq Ahmad (10) 17-9-1952 320/- Afzal Husain (11) 18-9-1952 268/- Hari Kishan Das (12) 23-9-1952 300/- R. B. L. Gupta. The nature of those withdrawals further goes to show that the Bank account was being operated by her husband. 30. A peculiar feature of the Bank account is that during the period from 19-5-1952 to 30-6-1952 a sum of Rs. 28,390/- was deposited and the same amount was withdrawn. From 1-7-1952 to 30-9-1952 a sum of Rs. 43,185/-was deposited and by an equal withdrawal the account was squared up. The manner in which the account has been operated further confirms that the account was being operated by some businessman rather than a house wife. The plaintiff did not state as to how much money she obtained during her marriage and how much money she obtained by the sale of the ornaments. She also did not say as to how much Tolas of gold she had. She did not file any purchase regarding the sale of ornaments. She claimed to have sold the ornaments during the period of one or two years. The reason given by her for the sale of the ornaments is rather ridiculous. She stated that as the ornaments are lost, she thought it proper to sell them and deposit the same. She has not filed the pass book and the statement of account submitted by her is barely for a period of six months. Her version regarding her having made the deposit by sale of ornaments appears to be palpably false and is wholly unworthy of reliance. 31. The plaintiff stated that he supervised the construction of the house with the help of her elder son and her son-in-law Prem Prakash. She could not tell the names of the masons of labourers. Her version regarding her having made the deposit by sale of ornaments appears to be palpably false and is wholly unworthy of reliance. 31. The plaintiff stated that he supervised the construction of the house with the help of her elder son and her son-in-law Prem Prakash. She could not tell the names of the masons of labourers. She did not know as to from where the articles for the construction of the house were purchased. She claims to have filed the receipts of the purchase of articles but the same are not on the record. She did not examine her elder son or son-in-law. 32. The plaintiff could not tell as to who were the tenants in house No. 124A Civil lines or what was the rent paid by them. Had she been the real owner she must have known these facts. The plaintiff did not depose in a straightforward or truthful manner. She stated that she did not know as to where her husband carried on business, that she did not tell her husband about the purchase of the land of house No. 124-A on her return, that she told him after one or two months, that she did not know that over a lakh of Rupees were due on her husband as sales tax dues and that she did not talk to her husband even when the property in suit was attached. 33. The plaintiff made a very significant statement when she stated that her husband Lala Bhajan Lal Gupta did not own any property. Even his father Lala Ajodhya Prasad did not own any residential house. Lala Bhajan Lal Gupta is carrying on business of vegetable ghee on a big scale and the amount of sales tax dues due on him leaves no room for doubt that he must have made considerable profits. It is obvious that he preferred to acquire property in the name of his wife rather than in his own name. His conduct in not submitting any returns for the sales-tax dues for the years 1950-51 and 1951-52 and in not paying sales-tax dues for seven years gives a clue to his scheming mentality. He wanted to avoid the payment of sales-tax dues on the assurance that there was no property in his name and that the dues could not be recovered from him. 34. He wanted to avoid the payment of sales-tax dues on the assurance that there was no property in his name and that the dues could not be recovered from him. 34. The learned Civil Judge has been very much impressed by the evidence regarding Smt. Ram Peari Gupta being shown as the owner of the property in suit. Ext. 10 is the permission dt. 24-10-1952 obtained in her name for constructing house No. 124-A Civil Lines. Ext. 11 is a permission obtained in her name for making some additions in the other house. Exts. 13 and 14 are the requisition orders. Ext. 6 is a notice sent by the District Supply Officer to the plaintiff treating her as the owner of the house. Paper No. 89-ga is the copy of assessment for the years 1959-64 in which her name was recorded as the owner of the house No. 124A Civil Lines. Paper No. 82-ga is the notice of Bhum Bhawankar ques. Ext. 15 is the surety bond filed by the plaintiff on behalf of her husband in which she claimed to be the owner of house No. 124-A Civil Lines. Ext. 21 is the notice issued by the Water Tax Superintendent Municipal Board, Bareilly in respect of house No. 124-A Civil Lines. Exts. 1, 4, 5 and 7 are certified copies of some cases in which plaintiff was shown as the owner of house No. 124-A Civil Lines. Paper No. 16-ga is a copy of judgment in Misc. Civil Appeal No. 19 of 1952 Smt. Ram Peari and two others v. Ram Bharose Lal and six others which shows that an application under O.21 R.89 C.P.C. was allowed and the sale was set aside at the instance of the plaintiff. Exts. 17, 19, 20, 22 and 24 are some of the bills received from the Municipal Board and Ext. 9 is a Municipal receipt. When the sale deed of the land of house No. 124-A Civil Lines had been obtained in the name of the plaintiff, it is but natural that subsequent proceedings for permission to construct the house etc. should have been continued in her name and she should have been shown in the papers as the owner of the house. The evidence referred to above cannot go to show that she is the real owner of the house. 35. should have been continued in her name and she should have been shown in the papers as the owner of the house. The evidence referred to above cannot go to show that she is the real owner of the house. 35. On a careful consideration of the evidence on the record we find that there is no prima facie evidence to show that the sale consideration of the house in Alamgiri Ganj was advanced by defendent No. 2 and the plaintiffs version regarding her having purchased the house by her own money cannot be considered improbable or unworthy of reliance. As far as house No. 124-A Civil Lines is concerned, apart from the material discrepancy in the statements of P.W. 1 Smt. Ram Peari Gupta and P.W. 2 Dwarka Prasad regarding the manner in which the sale consideration was advanced by the plaintiff, there is inherent evidence to show that the Bank account from which the plaintiff withdrew the money was in fact a faked account in her name and was the account of her husband. She admittedly withdrew the money from this account for paying the sale consideration. It has thus been proved that the sale consideration for the land of this house was provided by plaintiffs husband. The burden thereafter shifted on the plaintiff to prove that she was the real owner of the house. The evidence in this regard is extremely unsatisfactory. Material oral and documentary evidence has been withheld. The plaintiff has betrayed ignorance regarding the number of tenants and the rent paid by them. It is obvious that her husband is managing the property. His conduct in not paying the sales-tax dues for about 7 years and permitting the same to amount to Rs. 1,22,659.25 is also very material. He had a strong motive for obtaining a Benami sale deed in the name of his wife. 36. We agree with the learned Civil Judge in so far as the house in Alamgiriganj is concerned and hold that the plaintiff is the owner of the same. We are, however, unable to agree with the learned Civil Judge that the plaintiff is the owner of house No. 124-A Civil Lines. We hold that she is merely a Benamidar and the real owner is her husband. We decide the point accordingly. 37. In view of the discussion above the appeal succeeds partially. We are, however, unable to agree with the learned Civil Judge that the plaintiff is the owner of house No. 124-A Civil Lines. We hold that she is merely a Benamidar and the real owner is her husband. We decide the point accordingly. 37. In view of the discussion above the appeal succeeds partially. The judgment and decree passed by the learned Civil Judge are modified. The suit of the plaintiff in respect of house No. 124A Civil Lines is dismissed. The judgment and decree in respect of house in Alamgiriganj are confirmed. In view of the partial success we direct that costs shall be borne by the parties in both the courts. Appeal partly allowed.