Judgment :- 1. The only question for decision in this Second Appeal is as to whether Ext. Al assignment of the suit property in the name of the plaintiff is benami for Parammal Kunhunniyan, the father of the plaintiff and defendants 1 to 9 and the husband of the 10th defendant. The courts below have found against the plea of benami raised by the defendants and the plaintiff is given a decree for recovery of possession of the suit-property. It is against this that the defendants have come up in Second Appeal. 2. The plaintiff and the 1st defendant are the sons and defendants 2 to 9 are the daughters of deceased Kunhunniyan and the 10th defendant. The plaintiff is the elder son. The suit'property is 5 cents in extent in R. S. No. 424/1A-9-8 of Malappuram amsom. Several persons occupied small bits of land belonging to the Defence Department of the Government of India. Kunhunniyan was in occupation of the suit-property where he had constructed a building and was conducting a tea-shop. The Defence Department of the Government of India decided to assign the lands to the occupants. Ext. B3 dated 25-10-1941 is a letter by the Tahsildar, Ernad addressed to the Military Estates Officer, Madras Circle, Bangalore, wherein it is stated that R. S. Nos. 424/1 and 430/1A-3-8 of Malappuram amsom have been further sub-divided in conformity with the actual enjoyment and possession of the respective occupants. A list of the occupants of the respective plots together with a sketch, showing the proposed sub-division was enclosed with the letter Ext. B3. The list attached to Ext. B3 shows the occupation of 5 cents of land in R. S.424/1-H by Parammal Kunhunniyan. In pursuance to Ext. B3 the suit-property was assigned in the name of the plaintiff for a consideration of Rs. 10/- as per Ext. Al sale deed dated 22-5-1944 executed by the Governor General in Council. It is on the strength of the title under Ext. Al that the plaintiff claims recovery of possession of the suit-property from defendants 1 to 10. 3. The defence to the suit is that Ext. Al assignment though taken in the name of the plaintiff was for the benefit of Kunhunniyan himself and the plaintiff is only a benamidar for him. 4. The assignment Ext. Al was obtained on account of the occupation of the land by Kunhunniyan is not disputed. 3. The defence to the suit is that Ext. Al assignment though taken in the name of the plaintiff was for the benefit of Kunhunniyan himself and the plaintiff is only a benamidar for him. 4. The assignment Ext. Al was obtained on account of the occupation of the land by Kunhunniyan is not disputed. It is also not disputed that Kunhunniyan had constructed a building and was running a tea-shop in the suit-property. Ext. B4 dated 30 41946 is an application by Kunhunniyan and the neighbouring assignees of land to the Tahsildar for return of the assignment deeds produced before the Tahsildar for the purpose of effecting mutation of patta in the names of the assignees. Ext. B4 would show that it was Kunhunniyan who had produced the original title deed and applied for mutation of patta in accordance with Ext. Al. The trial court found in Para.6 of its judgment that there is no clear evidence as to the source of consideration for Ext. Al. The lower appellate court on the basis of the recital in Ext. Al held that the consideration of Rs.10/- was paid by the plaintiff. The court below in considering the question whether Ext. Al is benami or not is wrong in relying on the recital in Ext. Al itself to come to the conclusion that consideration was paid by the plaintiff. Both the courts below have found that Kunhunniyan was in possession of the suit-property on the date of Ext. Al. The trial court in Para.7 of its judgment states as follows: "The fact that Kunhunniyan was in possession of the property and he applied for assignment and he subsequently produced the janm assignment deed before the Tahsildar for the purpose of mutation would go to show that Kunhunniyan really intended to purchase the property and he took the sale deed in the name of his son, the plaintiff and the consideration for Ext. Al was paid out of the income from the tea-shop which was run by Kunhunniyan and the plaintiff. These facts may show that Kunhunniyan purchased the property in the name of his son, the plaintiff under Ext. Al. But that by itself is not sufficient to say that Ext. Al is only a benami purchase in the name of the plaintiff by Kunhunniyan. It is also proved in this case even after Ext. These facts may show that Kunhunniyan purchased the property in the name of his son, the plaintiff under Ext. Al. But that by itself is not sufficient to say that Ext. Al is only a benami purchase in the name of the plaintiff by Kunhunniyan. It is also proved in this case even after Ext. Al Kunhunniyan was doing tea-shop business in the plaint schedule property". The lower appellate court in Para.4 of its judgment states: "The lower court after discussing the evidence on this aspect came to the conclusion that the father of the plaintiff was in possession of the property at the time of assignment and when assignment was taken it was in the name of the plaintiff. But that by itself will not be sufficient to say that Ext. Al is only a benami purchase in the name of the plaintiff". The 10th defendant the mother of the plaintiff and defendants 1 to 9 is examined as Dw.l. The 2nd defendant is examined as dw.5. Both Dws.1 and 2 depose that Kunhunniyan was heavily involved in debts at the time of Ext. Al and his residential house had been sold at the instance of his creditors. Pw.l admits that his father had applied to the Government for assignment of the plaint schedule property and Ext. Al assignment was executed in his name. It is the case of the defendants that Ext. Al assignment happened to be taken in the name of the plaintiff with a view to screen the property from the reach of the creditors of Kunhunniyan. Even though the motive as such is not admitted the plaintiff as Pw.l admits the indebtedness of Kunhunniyan and his house itself had been sold at the instance of his creditors, prior to the date of Ext. Al. 5. The plaintiff examined as pw.1 has deposed that until he left for Mannarghat 10-12 years prior to his examination in court, he was living in Malappuram with his parents. Ext. B3 would clearly show Kunhunniyan's possession of the property, prior to the date of Ext. Al. It is the admitted case of both parties that Kunhunniyan had constructed a building in the property and was running a tea-shop. The plaintiff, a young boy at that time, was assisting Kunhunniyan in his business. Even after Ext. Ext. B3 would clearly show Kunhunniyan's possession of the property, prior to the date of Ext. Al. It is the admitted case of both parties that Kunhunniyan had constructed a building in the property and was running a tea-shop. The plaintiff, a young boy at that time, was assisting Kunhunniyan in his business. Even after Ext. Al Kunhunniyan was continuing his tea-shop business in the building he had constructed in the plaint schedule property. 6. The assignment Ext. Al was taken in the name of the plaintiff in 1944. There is no evidence of dealings with the property until the year 1956. There is also no evidence when Kunhunniyan stopped the tea-shop business. Ext. A22 dated 24-7-1956 is the sale of the property by the plaintiff to one C. Mohammed for a consideration of Rs. 800/- with a condition for repurchase. Ext. A3 dated 1-9-1964 is the document under which the property was re-conveyed in the name of the plaintiff. Shortly after Ext. A22 assignment to C. Mohammed, the plaintiff hypothecated the same property to Mariyumma, wife of the assignee under Ext. A22 for Rs. 500/-as per document No. 267/57. The debt was discharged as per Ext. A4 receipt dated 1-9-1964. The plaintiff had borrowed a sum of Rs. 700/- on the security of this property from one Alavikutty and the same was also discharged on 1-9-1964 as per Ext. A5 receipt. The building in the property was leased to the Malayala Pharmacy on 1-9-1964 itself as per Ext. A6 kychit executed by on N. V. Abu on its behalf. The plaintiff instituted R. C. O. P. No. 33 of 1972 for eviction of the tenant. Ext. A7 dated 23-11-1974 is the order of the Rent Control Court directing the tenant to put the landlord in possession of the building. Ext. A7 order was confirmed in appeal and in revision as per Ext. A9 order of the District Court dated 9-4-1977. The plaintiff took steps in execution for eviction of the tenant. During the course of the execution proceedings the tenant vacated the building and the plaintiff filed Ext. A10 statement before the execution court to the effect that the tenant has vacated the premises on 2-7-1977 and the execution petition is not pressed. It is the plaintiff's case that the defendants including his mother trespassed into the property on 4-7-1977 and started residence in the building. A10 statement before the execution court to the effect that the tenant has vacated the premises on 2-7-1977 and the execution petition is not pressed. It is the plaintiff's case that the defendants including his mother trespassed into the property on 4-7-1977 and started residence in the building. The suit is filed on 4-1-1978 for the eviction of the plaintiff's mother, sisters and brother from the suit-property on the strength of title under Ext. Al. The 10th defendant as dw.1 has deposed that the borrowings on the security of the property was with the consent of the father and the amounts received were utilised for the purpose of the plaintiff's trade. She has also stated that ever since Kunhunniyan's house was sold at the instance of his creditors he had been living in a rented house with his wife and children until his death in the year 1969. 7. The courts below have relied on the plaintiff's dealings with the property from 1956 onwards to arrive at the conclusion that the property belongs to the plaintiff himself. The burden is no doubt on the defendants to prove that Ext. Al assignment in the name of the plaintiff is benami for Kunhunniyan and Kunhunniyan is the real owner of the property. As laid down by the Supreme Court in Jayadeyal Poddan v. Ms. Bibi Hazra (1974 (2) SCR. 90: AIR. 1974 SC. 171), the question whether a transaction is benami or not is principally one of fact and for determining the 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 the following 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 title deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale. One of the principal factors almost of decisive importance is the source of consideration for the transaction in question. In the present case, the consideration of Rs. 10/-mentioned in Ext. Al is negligible. It is not disputed that Ext. One of the principal factors almost of decisive importance is the source of consideration for the transaction in question. In the present case, the consideration of Rs. 10/-mentioned in Ext. Al is negligible. It is not disputed that Ext. Al assignment was granted by the Government in consideration of the prior occupation of the land by Kunhunniyan. It was on his application that the assignment was granted. 8. In the decision of the Supreme Court in Union of India v. Moksh Builders and Financiers Ltd. and Others (AIR. 1977 S. C. 409) it is stated at page 413 as follows: "It has been held in Gangadhara Ayyar v. Subramania Sastrigal (AIR.1949 F.C. 88) 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". It is also necessary to examine in such cases who actually has enjoyed the benefits of the transfer. Both these tests were applied by this Court in Meenakshi Mills, Madurai v. Commr, of Income-tax, Madras (AIR. 1957 SC. 49). It is therefore necessary, in the present case, to find out the source of the consideration for the transfer as also to find out who has been in enjoyment of the benefits of the transaction. It is equally well settled that although the onus of establishing that a transaction is 'benami' is on the plaintiff, "where it is not possible to obtain evidence which conclusively establishes or rebuts the allegation, the case must be dealt with on reasonable probabilities and legal inferences arising from proved or admitted facts". (AIR. 1949 F. C. 88). The trial court in the present case has found that there is no clear evidence relating to the source of consideration for Ext. Al sale in the name of the plaintiff. It has adverted to the evidence in the case that Kunhunniyan had been running a tea-shop business in which his eldest son was assisting him. The appellate court has merely relied on the recital in Ext. Al to infer that the consideration of Rs. 10/- was paid by the plaintiff. On the facts of this case the source of consideration is not of such significance in deciding with the question as to whether or not Ext. Al is benami for Kunhunniyan. It is clear from Ext. Al to infer that the consideration of Rs. 10/- was paid by the plaintiff. On the facts of this case the source of consideration is not of such significance in deciding with the question as to whether or not Ext. Al is benami for Kunhunniyan. It is clear from Ext. B3 and the admission of the plaintiff examined as pw.1 that it was in consideration of Kunhunniyan's occupation of the land that the assignment was granted by the Government. Kunhunniyan continued in occupation even after Ext. Al assignment. He had constructed a building and was carrying on his trade in the suit-property. There is nothing on record to show that Kunhunniyan had surrendered his occupancy right to the plaintiff after Ext. Al. The plaintiff himself in his evidence as pw.1 has admitted that Kunhunniyan had applied for assignment on the basis of which Ext. Al sale deed was executed in the name of the plaintiff. There is nothing on record to show the dealings with the property from 1944 to 1956. The fact that certain amounts were borrowed on the security of the property for the purpose of establishing the plaintiff in some trade does not mean that the property belongs to the plaintiff even though the documents had to be executed by the plaintiff in whose name Ext. Al stands. The plaintiff himself admits that his parents were residing with him until he left for Mannar-ghat 10-12 years prior to his examination in court. The mother examined as Dw.l has given clear evidence that Ext. Al was for the benefit of Kunhunniyan himself taken in the name of his elder son for the reason of his involvement in debts. pw.1 admits that Kunhunniyan was heavily indebted and his residential house had been sold at the instance of his creditors. The motive for the purchase in the name of a different person other than Kunhunniyan has been fully made out in this case. The dealings with respect to the property after 1956 are all during the life-time of Kunhunniyan and on the facts admitted and proved it cannot be said that there are independent dealings by the plaintiff without reference to Kunhunniyan. Ext. B4 would clearly show that the title deed Ext. Al was in the custody of Kunhunniyan. The trial court was inclined to hold that Kunhunniyan purchased the property in the name of his son. Ext. B4 would clearly show that the title deed Ext. Al was in the custody of Kunhunniyan. The trial court was inclined to hold that Kunhunniyan purchased the property in the name of his son. The lower appellate court in the concluding portion of its judgment states: "The intention of the parties in this case will clearly convince anybody that Ext. Al property was purchased by the plaintiff with the assistance of Kunhunniyan and with the intention of constituting the plaintiff as the absolute owner thereof". There is no evidence in this case relating to the intention of the parties. Kunhunniyan had ten children of whom eight are daughters. It cannot be assumed that his intention was to benefit the plaintiff as against his wife and all other children. Taking all these aspects into consideration, I have no hesitation to hold that the defendants have established that the transaction Ext. Al in the name of the plaintiff was benami for Kunhunniyan and Kunhunniyan was the real owner of the property. On his death the property devolved on the plaintiff and defendants 1 to 10. It is admitted that the defendants are in possession atleast from 4-7-1977 onwards and that they are residing in the house in the plaint schedule property. The plaintiff is only a co-owner along with the defendants. He has no independent title to dispossess the defendants. The result therefore is, in reversal of the decision of the courts below, I allow this Second Appeal and dismiss the suit. In view of the close relationship of the parties, I make no order as to costs. Allowed.