Judgment :- Mohan, J. The plaintiffs, who were successful in part in their suit in O.S.N0. 595 of 1973, in so far as they obtained a decree for declaration, possession only with respect of item 2 and not with reference to item 1, and who were also unsuccessful in Appeal No.56 of 1976, have come up by way of this Letters Patent Appeal. 2. The facts lie in a short compass. There was one Govinda Konar, who had two wives Marimuthammal and Lakshmi Animal. The plaintiffs 1 and 2 are the daughters of Govinda Konar through Mari-muthammal the first wife. Defendants 2 and 3 are the sons of Govinda Konar through his second wife, Lakshmi Ammal, the 1st defendant in the suit. Govinda Konar died on 25.8.1965. Shortly thereafter, i.e. sometime in September, 1965, Marimuthammal also died. Lakshmi Ammal, the 1st defendant, was married to Govinda Konar in 1944. Two properties were purchased by Govinda Konar in the name of Marimuthammal, his first wife, under Ex.B-2 dated 15.10.1943 and under Ex.B-3 dated 20.6.1947. We may also at this stage state that Govinda Konar had attested Ex.B-2 sale deed. In March, 1963, Govinda Konar executed a Will. Ex.B=48 appears to be a draft, though it is called an unregistered will and later under Ex.B-49 dated 16.4.1963. In that registered will, he made a statement to the effect that not only these two properties, viz,, the properties purchased under Exs.B-2 and B-3, but also another property purchased in the name of Lakshmi Ammal, the 1st defendant (second wife of Govinda Konar) were purchased benami and the persons, in whose names the sale deeds stand, were mere namelenders and thereafter he proceeded to bequeath the properties in a manner he considered best in the said will, Ex.B-49. Consequent to this, a cloud had come to be cast and therefore, O.S.No.595 of 1973 was filed for a declaration, possession and past profits, etc., by the plaintiffs, viz., the daughters through his first wife, Marimuthammal stating that these two properties were purchased by Govinda Konar when he wanted to take a second wife and when plaintiffs’ mother, Marimuthammal insisted that some provision should be made for her maintenance. According to her request, both these properties were purchased. Inasmuch as the ostensible title stands in the name of their mother, Marimuthammal, they alone will be entitled to the said properties to the exclusion of the defendants. According to her request, both these properties were purchased. Inasmuch as the ostensible title stands in the name of their mother, Marimuthammal, they alone will be entitled to the said properties to the exclusion of the defendants. 3. In defence, inter alia it was contended that the properties are those of Govinda Konar himself. Marimuthammal was only a benamidhar. Govinda Konar purchased the properties in his first wife’s name with ulterior motives without intending her to be benefited in any way. Therefore, the main plank of attack by the defendants is benami. 4. The learned trial Judge, on a consideration of the entire case, came to the conclusion that the statement made by Govinda Konar himself under Ex.B-49 gave a direct lead that they were benami purchases, that in so far as item 2 of the suit properties is concerned, it having been bequeathed in favour of the plaintiffs, they will be entitled to a decree for declaration, and possession as well as mesne profits. 5. Against this, an appeal was preferred to this court in A.S.No.56 of 1976. It come up before a learned single Judge, Sethu-raman, J. The learned Judge also concurred with the findings of the trial court and dismissed the appeal. Hence, the present Letters Patent Appeal. 6. It is strenuously argued by Mr.M.R.Narayanaswami, learned Counsel for the appellants that both the trial court and the learned single Judge of this court had attached undue importance to the statement made in Ex.B-49, registered will. The statement is not admissible at all. If however it is admissible, it could be against the maker and not in his favour, as laid down in Thakur Bhim Singh v. Thakur Kan Singh, (1980)3 S.C.C.72 at 82:.A.I.R.1980 S.C.727 and in Pattabhiram v. Karayanamoorthy, (1922)15 L.W.404= A.I.R. 1922 P.C.102. From the above ruling, it follows that a statement made in the year 1963 with reference to transactions that had taken place in the year 1943 and 1947, cannot conclude the issue. Therefore, the courts below are wrong in holding as if this will clinch the issue. 7. Having regard to the relationship between Govinda Konar and Marimuthammal, they being husband and wife, the question of possession of the property or the manner of enjoyment, is irrelevant. Then again, at best the statement in the Will, could amount to an assertion. Therefore, the courts below are wrong in holding as if this will clinch the issue. 7. Having regard to the relationship between Govinda Konar and Marimuthammal, they being husband and wife, the question of possession of the property or the manner of enjoyment, is irrelevant. Then again, at best the statement in the Will, could amount to an assertion. Therefore, it has to be tested with reference to the other indicia, which are prescribed in the various decisions, like Kistappa Naicker v. Elumalai Naicker, (1976)2 M.L.J. 470 = 89 L.W.471= A.I.R.1977 Mad.38; Nagappa Gounder v. Kasi Gounder and others, (1971)1 M.L.J.371 and Jaydayal Podder v. Bibi Hazra, (1974)1 S,C.C.3= A.I.R.1974 S.C.171. If therefore, that statement made by Govinda Konar in Ex.B-49 is eschewed from consideration, then there is nothing else to prove that it is a case of benami and ostensible title being in the name of Marimuthammal, that title must prevail. In matters like this, as laid down in Kistappa Naicker v. Elumalai Naicker (1976)2 M.L.J.470= 89 L.W.471, the intention is material, as is evident from section 82 of the Trusts Act. 8. One other point that requires to be mentioned in passing is, that Ex.B-2 had come to be attested by Govinda Konar. This contemporaneous conduct is a relevant piece of evidence, though the case has been over - stated by the appellant before the learned single Judge as though it would constitute estoppel. In so far as item 2 is concerned, the plaintiffs, as daughters of Marimuthammal, are entitled to the same and hence, they pray for a decree as claimed in the plaint. 9. Mr.K.Sarvabhauman, learned Counsel for the respondents, supporting the concurrent judgments of the courts below, would contend that it is not correct to say that both the courts below had held that the statement made by Govinda Konar in Ex.B-49 alone would conclude the issue. First and foremost, in the plaint there is not a single allegation that consideration ever proceeded from Marimuthammal. Secondly in para.4 of the plaint, it is stated that at the time of second marriage, Marimuthammal insisted that she should be provided with some security for her maintenance and consequently, the impugned purchases under Exs.B-2 and B-3 came to be executed. This statement ignores the fact that even before the second marriage with Lakshmi Ammal in 1944, Ex.B-2 purchase came to be made on 15.10.1943 itself. This statement ignores the fact that even before the second marriage with Lakshmi Ammal in 1944, Ex.B-2 purchase came to be made on 15.10.1943 itself. Therefore, that gives a direct lie to the statement made in the plaint. That apart, the municipal registry stands in the name of the husband and he alone had been dealing with the property. No doubt not one of these indicia is conclusive. However, the cumulative effect of all these, coupled with the statement made under Ex.B-49 would undoubtedly lead to the inescapable conclusion that it is benami. The cases cited by the learned Counsel for the appellants, with regard to the statment made in the Will, cannot be relied on viz., Thakur Bhim Singh’s case, (1980)3 S.C.C.72= A.I.R.1980; S.C.727 and Pattabhiram’s case, (1922) 15 L.W.404= A.I.R.1922 P.C.102 which are clearly distinguishable on facts. 10. No doubt intention is one of the important tests. Where such an intention is gatherable from a statement made ante litem mortam by Govinda Konar, that is an available piece of evidence and it is nobody’s case that it concludes the issue. Both the courts below have analysed the case of benami with reference to the various cases and here one such case would be enough for the purpose of this appeal, viz.. Controller of Estate Duty, Lucknow v. Aloke Mitra, (1981)2 I.T.J.1= (1981)2 S.C.J.69= (1980) Tax.L.R.1316= 126 I.T.R. 599= (1981)1 S.C.R.943= (1981)2 S.C.C.121= A.I.R.1981 S.C.102 wherein the entire case law on the subject has been set out. In Kistappa Naicker’s case, (1976)2 M.L.J.470= 89 L.W.471 the learned Judge on evidence found that there was intention on the part of the husband to benefit the wife. But here, the direct answer is afforded by the statement made by the husband under Ex.B-49. In this case, it is admitted by P.W.3 that it was her father, Govinda Konar, who provided the consideration for the purchase. This coupled with the other tests, which determine the case of benami, clearly points out the case of benami. 11. No doubt, Govinda Konar had attested Ex.B-2, but by that, nothing turns upon that it is entirely a matter for evidence, where the case of benami has been proved. The courts below are therefore correct and no case has been made out for interference. 12. 11. No doubt, Govinda Konar had attested Ex.B-2, but by that, nothing turns upon that it is entirely a matter for evidence, where the case of benami has been proved. The courts below are therefore correct and no case has been made out for interference. 12. As regards benami, as to what are the tests to be applied, it has repeatedly been laid down in a series of cases and they are too well-settled. It is not necessary for us to refer to those cases in detail, excepting to give the citation, viz., Kistappa Naicker’s case, (1976)2 M.L.J.470=89 L.W.471.; Nagappa Gounder’s case, (1971) 1 M.L.J.371, Jaydayal Poddar’s case, (1974)1 S.C.C.3= A.I.R.1974 S.C.171 and the Controller of Estate Duty, Lucknow v. Aloke Mitra, (1981)2 I.T.J.1= (1981)2 S.C.J.69= A.I.R.1981 S.C.102. We will do well to refer to a few paragraphs in the last of the cases referred to above: “The law in this matter is not in doubt and is authoritatively stated by a long line of decisions of the Privy Council starting from the well known case of Gopeekrist Gosain v. Gungapersaud Gosain, (1854)6 Moo.Ind.App.53 to Sura Lakshmi Chetty v. Kothandarama Pillai, (1925)52 Ind.App.286= 49 M.L.J.I09= I.L.R.48 Mad.605= 23 L.W.138= A.I.R.1925 P.C.181 and of this court in Shree Meenakshi Mills Ltd. v. C.I.T., 1957 S.C.J. 1= (1956) S.C.R.691 = (1957)1 M.L.J, (S.C.)1= (1957)1 An.W.R. (S.C.)1 = 31 I.T.R.28= A.I.R.1957 S.C.49. As observed by Knight Bruce, L.J. in Gopeekrist Gosain’s case, the doctrine of advancement is not applicable in India, so as to raise the question of a resulting trust. When a property is purchased by a husband in the name of his wife, or by a father in the name of his son. it must be presumed that they are benamidars, and if they claim it as their own by alleging that the husband or the father intended to make a gift of the property to them, the onus rests upon them to establish such a gift. it must be presumed that they are benamidars, and if they claim it as their own by alleging that the husband or the father intended to make a gift of the property to them, the onus rests upon them to establish such a gift. In Sura Lakshmiah Chetty’s case, 49 M.L.J. 109 the law was stated with clarity by Sir John Edge in these words: There can be no doubt now that a purchase in India by a native of India of property in India in the name of his wife unexplained by other proved or admitted facts is to be regarded as a benami transaction, by which the beneficial interest in the property is in the husband, although the ostensible title is in the wife,” It Is but axiomatic that a benami transaction does not vest any title in the benamidar but vests it in the real owner. When the benamidar is in possession of the property standing in his name, he Is in a sense the trustee for the real owner, he is only a name - lender or an alias for the real owner. In Pethaperumal Chetty v. Muniandy Served, (1908) 35 Ind.App.98= I.L.R.35 Cal.551= 18 M.L.J.277 the Judicial Committee quoted with approval the following passage from Mayne’s Hindu Law 7th Ed. Para.440. “Where a transaction is once made out to be a mere benami, it is evident that the benamidar absolutely disappears from the title. His name is simply an alias for that of the person beneficially interested.” The cardinal distinction between a trustee known to English Law and a benamidar lies in the fact that a trustee is the legal owner of the property standing in his name and cestui que trust is only a beneficial owner, whereas in the case of a benami transaction, the real owner has got the legal title though the property is in the name of the benamidar. It is well settled that the real owner can deal with the property without reference to the latter. The law is succiently stated by Mayne In his Treatise on Hindu Law 11th Edn. at p.953, in the following terms: “A benami transaction is one where one buys property in the name of another or gratuitously transfers his property to another, without indicating an intention to benefit the other. The law is succiently stated by Mayne In his Treatise on Hindu Law 11th Edn. at p.953, in the following terms: “A benami transaction is one where one buys property in the name of another or gratuitously transfers his property to another, without indicating an intention to benefit the other. The benamidar, therefore, has no beneficial interest in the property or business that stands in his name; he represents in. fact the real owner and so far as their relative legal position is concerned, he is a mere trustee for him. In other words, a benami purchase or conveyance leads to a resulting trust in India just as a purchase or transfer under similar circumstances leads to a resulting trust in England. The general rule and principle of the Indian law as to resulting trusts differs but little if at all, from the general rule of English law upon the same subject,” 13. The question in this case is, whether the plea of benami has been made out. As regards the source of purchase money, the plaint states in para 4: “When the said T.N.Govinda Konar wanted to take a second wife plaintiffs’ mother Marimuthammai insisted that some provision should be made for her maintenance. T.N.Govinda Konar taking into consideration her loyalty and faithful service to the family acceded to her request and purchased 2 items of properties described in the schedule annexed to this plaint in her name on two different dates.” As rightly contended by Mr.Sarvabhauman, learned ounsel for the respondents, the marriage of Govinda Konar with Lakshmi Ammal, took place in the year 1944 admittedly. (Underlining is ours). We find Ex.B-2 sale deed, which is one of the sale deeds referred to in para.4, to have been executed on 15.10.1943, viz.. prior to the marriage of Lakshmi Ammal with Govinda Konar. Therefore, this plea cannot at all be accepted. 14. Then in para.5 of the plaint, it is stated that both these sale deeds, viz.. Ex.B-2 dated 15.10.1943 and Ex.B-3 dated 20.6.1947 are in the name of Marimuthammai, mother of the plaintiffs and the above two purchases were effected solely to benefit Marimuthammai and after purchase, Marimuthammal was in exclusive possession and enjoymnet of the said properties. On a careful reading of the plaint, we find nowhere even a casual allegation that their mother provided the consideration. On a careful reading of the plaint, we find nowhere even a casual allegation that their mother provided the consideration. On the contrary, P.W.3, the first plaintiff Jayalakshmi admits in cross examination that it was only the father, who provided the funds for the purchase of both the properties covered by Exs.B-2 and B-3 and he purchased the same in the name of their mother. Therefore, that is the position. 15. Then, with regard to the manner of dealing with the properties, Govinda Konar collected the rent for the suit houses along with his other houses by issuing printed receipts in his name. The same is spoken to by P.Ws.2,3 and 4. Exs.B-4 to B-20 are the counter-foils of receipts for item 1, while Exs.B-21 to B-24 are the counter-foils of the receipts for item 2 of the suit properties. 16. Property tax has been paid by Govinda Konar in his own name. Then remains only the motive. As the Privy Council has often held, benami transactions are so frequent and so common in India that the motive pales into insignificance. Coupled with this, we propose to examine the statement made by Govinda Konar himself under Ex.B-49, the registered will. In no uncertain terms he has stated in Ex.B-49 in para.4 that the two properties forming part of the A schedule have been purchased with his funds and they stand in the name of Marimuthammai as benami and that she is the namelender. Though it be so, they have been in his possession and that he alone has the right, title and interest. After stating so, he bequeathed the property consisting of two items covered by Exs.B-2 and B-3 sale deeds, conferring life estate on Marimuthammai without any power of alienation and after her demise, the properties to devolve on the two plaintiffs in equal moieties as far as item 1 of A schedule is concerned (i.e. item 2 of plaint schedule). As regards item 2 is concerned (i.e. item 1 of plaint schedule) he states that having regard to the fact that the second wife Lakshmi Ammal’s son, Sekar (3rd defendant) had been brought up by Marimuthammai, his elder wife as her foster son, after her lifetime and after performing the obsequies for Marimuthammai, he shall enjoy the said item of property for his life and after his lifetime, it shall devolve on his heirs, absolutely. The matter does not stop there. Even with regard to the house property covered by the B schedule to Ex.B-49, which was admittedly purchased by Govinda Konar in the name of his second wife, Lakshmi Ammal, he makes an equally categorical assertion that the same was purchased benami by him in the name of Lakshmi Ammal and she was only a namelender and he alone was entitled to the same and after making that assertion, he bequeathed the same in favour of Lakshmi Ammal conferring a life estate on her and after her lifetime, the same to devolve upon her four daughters Ramaniboy, Jalaja, Indirani and Susila, each taking an equal share. Therefore, normally speaking, this is not a case of mere assertion, but over and above that, the manner of treatment of. the property. In other words, at no point of time, from the date of purchase, Govinda Konar ever intended to benefit either his first wife or the second wife, though of course we are concerned in this case only with the nature of benami transaction attendant on Exs.B-2 and B-3. If that be so, the question of intention, which has been held as an important test, as laid down by Ismail, J. as he then was, in Kistappa Naicker v. Elumalai Naicker, (1976)2 M.L.J. 470 = 89 L.W.471 is necessary by statement. The argument of Mr.M.R.Narayana-swamy that this alone will not clinch the issue may be alright. But as we have stated already, there are other circumstances as well, which we have just now pointed out. Looked at from this point of view, we do not think the decision in Thakur Bhim Singh v. Thakur Kan Singh, (1980)3 S.C.C.72= A.I.R.1980 S.C.727 could advance the case of the appellants wherein at page 86 in para.24, is stated thus: “It was, however, contended on behalf of the defendant that the statement made by Bharat Singh in the year 1956 could not be accepted as evidence in proof of the nature, of the transaction which had taken place in the year 1940. It was contended that the question whether a transaction was of a benami nature or not should be decided on the basis of evidence about facts which had taken place at or about the time of the transaction and not by statements made several years after the date of the transaction.” But in this case, as we have pointed out, the statement is one of the pieces of evidence, which certainly could be taken into consideration in order to determine the intention, which is one of the vital tests. Viewed in this perspective, the decision in Pattabhiram’s case, (1922)15 L.W.404= A.I.R.1922 P.C.102 wherein the head note reads thus: “A statement in a will suggesting an inference as to a fact in issue, cannot be provided by or on behalf of the person who made it or his represen-tative-in-interest. Even where two executors, who were members of the family, acted upon the will, still the statement cannot be treated as an admission by the members of the family that the statement in the will is true.” again does not assist the appellants. 17. Normally, the principle is that in’ the absence of benami, the person, who had been entitled to the property, is the ostensible title-holder. In this case, it is conceded as the evidence of P.W.3 itself would disclose that Govinda Konar provided the funds. Therefore the intention talked of under section 82 of the Trusts Act, is clearly brought out by the above statement in the Will coupled with this evidence. 18. The fact that Govinda Konar attested Ex.B-2 cannot in any manner be determinative of the question of benami and the learned Counsel for the appellants fairly conceded that there is no question of estoppel by reason of such attestation. 19. For all these reasons, we conclude that there is no warrant for interference. Accordingly, the appeal will stand dismissed. However, having regard to the close relationship between the parties, we do not think the appellants should be mulcted with costs. The parties will therefore, bear their own costs in this appeal.