L. M. GHOSH, J. ( 1 ) THE judgement we render now governed two appeals being F. A. No. 525 of 1974 and F. A. No. 555 of 1974. Two cross objections have also been filed. F. A. No. 525 of 1974 arises out of the judgement and decree in T. S. No. 65 of 1971 (previously numbered as T. S. No. 107 of 1957) of the 7th Court of Subordinate Judge, Alipore. F. A. No. 555 of 1974 arises out of the judgement and decree in T. S. No. 66 of 1971 (previously numbered as T. S. No. 115 of 1959) of the same court. It may be mentioned that the learned Subordinate Judge heard both the suits analogously and disposed of them by one common judgement. Title Suit No. 65 of 1971 was dismissed on contest. Title Suit No. 66 of 1971 was decreed in part on contest. Manindra Nath Mukherjee was the appellant in F. A. No. 525 of 1974. The heirs of Sidheswari Debi have filed the appeal, F. A. No. 555 of 1974. ( 2 ) TITLE Suit No. 65 of 1971 was filed by the plaintiff, Manindra Nath Mukherjee, for partition of the suit properties and for accounts. That is the main suit and the other suit, namely Title Suit No. 66 of 1971, can be legitimately called and off spring of the first suit. In Title Suit No. 65 of 1971, the plaintiff, Manindra Nath Mukherjee, alleged that the suit properties were purchased by his father with his own money. Late Nanilal Mukherjee was the father of the original plaintiff and the original defendants Nos. 1 to 4 and the husband of the original defendant No. 5, late Sidheswari Debi. It is an admitted case that late Nanilal Mukherjee married twice. His first wife, Sarojini, died at a premature age. Then Nanilal married the original defendant No. 5 in 1903. According to the plaintiff, Sailendra the defendant No. 1 was then only three years old. There is a little divergence on this paint and it is that according to the original defendant No. 1, he was then six years old. Be that as it may, according to the plaintiff, Manindra, Nanilal purchased the property of 1, Lovelock Street on 9-9-12 with his own money, in the benami of the original defendants Nos. 1 and 5 viz. , Sailendra and Sidheswari. Be that as it may, according to the plaintiff, Manindra, Nanilal purchased the property of 1, Lovelock Street on 9-9-12 with his own money, in the benami of the original defendants Nos. 1 and 5 viz. , Sailendra and Sidheswari. In 1912, as per account of the plaintiff, the defendant No. 1 was then only twelve years old and a student of class-IV. It was pleaded that neither the defendant No. 1 nor the defendant No. 5 had any means to purchase the property. Then again, in 1915, the plaintiff's father constructed a house, partly two storeyed and partly three storeyed, with his own money, as stated by the plaintiff. Late Nanilal retired in 1931 as Manager of the Jail Depot. The further account of the plaintiff was that to meet the marriage expenses of his daughter and also to establish a deity somewhere. Nanilal had to mortgage the property, bur as the title deeds stood in the names of Sailendra and Sidheswari, they were made to execute the mortgage deeds. But the plaintiffs father also joined in the mortgage deeds. The plaintiff averred that Nanilal had taken the entire money raised by mortgaging the property. In 1932, a strip of land out of 1/1, Lovelock Street was again purchased in the names of the defendants Nos. 1 and 5. Here also, the plaintiff mentioned that Nanilal himself had purchased the property in the benamis of Sailendra and Sidheswari. The properties of the Lovelock Street are the 'a' Schedule properties of the plaint. The 'b' Schedule properties are the properties in Palpara, District Nadia. They were acquired by Nanilal Mukherjee with his own money, but in the names of Sailendra and his othersons. The plaintiff asserted that Nanilal remained in possession of those properties. It is not disputed that Nanilal died in 1944. ( 3 ) SOME mortgage deeds were executed. Haridas Dey, a mortgagee, filed Title Suit No. 132/50 against the defendants Nos. 1 to 5 and obtained a compromise decree for Rs. 8,000/ -. The plaintiff averred that nothing was explained to the defendant No. 5. Then the legal representatives of one Durga Das Chatterjee. another mortgagee, brought T. S. No. 156 of 1951 (re-numbered T. S. No. 47 of 1952 ). 1 to 5 and obtained a compromise decree for Rs. 8,000/ -. The plaintiff averred that nothing was explained to the defendant No. 5. Then the legal representatives of one Durga Das Chatterjee. another mortgagee, brought T. S. No. 156 of 1951 (re-numbered T. S. No. 47 of 1952 ). The defendant No. 1 paid off the entire mortgage dues, After that, the defendant No. 1 filed a contribution suit against the defendant No. 5 and got a decree for Rs. 4,494/ -. The defendant No. 1 it was stated also put the decree into execution. The plaintiff claimed that on the death of Nanilal, himself and the defendants Nos. 1 to 5 got one-sixth share each in the suit properties. ( 4 ) THERE was a partition deed executed by the defendant No. 5 on 28-9-57. According to the plaintiff the defendant No. 1 fraudulently got the partition deed executed by the defendant No. 5. The deed contained wrong recitals. Particularly, the plaintiff submitted that the recitals in the said partition deed that the defendant No. 1 had half share in the properties were entirely wrong. By the said partition deed the defendant No. 1 was given further allotments out of the alleged share of Sidheswari, in lieu of the mortgage dues. The plaintiff stated that the deed was not explained to the defendant No. 5 and so it was a piece of fraudulent transaction. Such a deed could not affect the right, title and interest of the plaintiff. The plaintiff, it is said, demanded partition. As that was not complied with he had to file the suit. ( 5 ) THE defendant No. 1, Sailendra, filed a written statement and contested the suit. He made out a case that the suit properties were purchased by himself and Sideshwari with their own funds. He submitted that Nanilal was burdened with a big family and his income was not sufficient. Bamapada, the mother's father of the defendant No. 1, was said to have been a man of affluence. According to the defendant No. 1, Bamapada contributed the major part for the acquisition of the land of Lovelock Street and also for construction thereon. The defendant No. 1 also stated that Nanilal himself had all along treated the property as the property of the defendants Nos. 1 and 5. According to the defendant No. 1, Bamapada contributed the major part for the acquisition of the land of Lovelock Street and also for construction thereon. The defendant No. 1 also stated that Nanilal himself had all along treated the property as the property of the defendants Nos. 1 and 5. As per the statement of the defendant No. 1 the building of the entire premises was not Constructed at a time in 1915. The front portion was constructed in 1928 with the money of the defendant No. 1, as claimed by him, and the major portion of the construction costs, other than the front portion construction cost, was said to have been borne by Bamapada. With regard to the mortgages, it was stated that the plaintiffs father did not mortgage the same to meet the marriage expenses of the sister of the plaintiff. As to his own means, the defendant No. 1's case was that he was carrying on a substantial business from long before. With regard to the Palpara properties, the defendant No. 1 just stated that Nanilal did not acquire the same. On the basis of these averments, the defendant No. 1 claimed eight annas share in the properties. As regards the partition deed, the defendant No. 1 stated that after the contribution suit was decreed, there was discussion between the plaintiff, this defendant No. 1 and the defendants Nos. 2 to 4. Sri B. K. Banerjee, an Engineer Commissioner, was engaged by the parties and accordingly a partition plan was prepared. The plaintiff and the defendants Nos. 2 to 4 were said to have been present all along during the discussion and during the survey proceedings. And the defendant No. 1 urged, the partition plan was prepared and the deed was executed by all the defendants with full knowledge. The plaintiff was not present at first because of his office works. It was said that the plaintiff promised to execute the deed later, but subsequently backed out. The defendant No. admitted the execution before the Registrar who visited for registration on commission. The other defendants avoided registration, so registration had to be effected in accordance with the formalities of the Registration Law. It was said that the plaintiff promised to execute the deed later, but subsequently backed out. The defendant No. admitted the execution before the Registrar who visited for registration on commission. The other defendants avoided registration, so registration had to be effected in accordance with the formalities of the Registration Law. As to the attitude of the defendant No. 5, it was the case of the defendant No. 1 that the defendant No. 5 proposed to liquidate her debts for payment of her share of the decretal dues under the mortgage suits by further allotment from her half share of the premises. That agreement by the defendant No. 5 was not performed by her, it was alleged. ( 6 ) THE defendants Nos. 2 to 4 filed one set of written statement. They more or less accepted the plaintiffs case. They stated that the father of the defendants Nos. 2 to 4, that is Nanilal, paid the consideration money for the purchase of the land of Lovelock Street. The plaint case that Nanilal purchased with his own money in the benami of the defendants Nos. 1 to 5 was supported. It was pointed out that the defendant No. 1 was then a mere student and could not have any money. The defendant No. 5 also could not have any source. As to the assertion of the defendant No. 1 that his maternal grand father supplied the money, these defendants 2 to 4 mentioned that that maternal grand father himself was a very poor man and could not pay any money. In short, their case was that Nanilal had acquired the properties himself and exercised acts of possession. The partition deed relied on by the plaintiff was described as void. The defendant Nos. 2 to 4 were signatories in that deed. As to that, the explanation offered by them was that they had implicit faith in Sailendra and so they signed the deed without knowing the contents. ( 7 ) THE defendant No. 5, Sidheswari, filed a separate written statement. She had also taken a stand in line with the plaintiff. She averred that Nanilal had substantial income and had purchased the land of Lovelock Street with his own money and also constructed the house thereon with his own money. She herself had no means. ( 7 ) THE defendant No. 5, Sidheswari, filed a separate written statement. She had also taken a stand in line with the plaintiff. She averred that Nanilal had substantial income and had purchased the land of Lovelock Street with his own money and also constructed the house thereon with his own money. She herself had no means. The defendant No. 1, it was stated, was then a school boy, 12 years old and could not have any independent income. The maternal grand father of the defendant No. 1 was also described as having been a very poor man. As to the mortgage deeds, she submitted that Nanilal himself took loans for meeting the marriage expenses of his daughter. Umasashi, as well as for establishing, a Shiva deity in Benaras. As the original deeds stood in the names of the defendants No. 1 and 5, they, along with Nanilal, had to join in the mortgage deeds. All the 'b' Schedule lands, according to the defendant No. 5, were also purchased by Nanilal himself - some in the names of his other sons and some in the name of the defendant No. 1. The defendant No. 5 also pleaded that she signed the partition deed without knowing its contents. ( 8 ) TITLE Suit No. 66 of 1971 was filed by Sailendra Nath Mukherjee against Sidheswari mainly. Her sons, Jatindra, Manindra, Sachindra and Girindra were made pro forma defendants. That suit vas founded on the contract contained in the partition deed. As stated before, the terms of the partition deed were that the suit premises would be partitioned in two equal shares between Sailendra and Sidheswari. On account of the dues of the mortgage suits, Sailendra claimed a sum of Rs. 10,000/- from Sidheswari. Rs. 11,000/- was assessed as the total amount payable by Sidheswari to Sailendra on account of the mortgage suits and the corporation taxes. In lieu of this Rs. 11,000/-, some allotment out of the allotment of Sidheswari was made in favour of Sailendra. Sidheswari as per the terms of the partition deed, was to transfer and convey that portion to Sailendra by execution and registration of a deed of conveyance within fifteen days. As Sidheswari did not perform that part of the said contract, Sailendra filed Title Suit No. 66 of 1971 for specific performance of contract. Sidheswari as per the terms of the partition deed, was to transfer and convey that portion to Sailendra by execution and registration of a deed of conveyance within fifteen days. As Sidheswari did not perform that part of the said contract, Sailendra filed Title Suit No. 66 of 1971 for specific performance of contract. Alternatively, Sailendra prayed for a decree for partition and for decree for specific sums. ( 9 ) THE defendants Nos. 1, 2, 4 and 5 in that suit, i. e. , Sideshwari, Jatindra, Sachindra and Girindra filed one set of written statement. The defendant No. 3 in that suit, who was the plaintiff in Title Suit No. 65 of 1971, filed another written statement. The case of the defendants Nos. 1, 2, 4 and 5 was that not only the plaintiff and the defendant No. 1 were liable to pay all the taxes, but that liability was also a liability for the pro forma defendants as well, inasmuch as, they were also the co-owners in possession of the properties. That submission was made on the footing that the properties in suit belonged to Nanilal. With regard to the partition deed, it was described by them as fraudulent, void and inoperative. The suit, it was urged, was liable to be dismissed. ( 10 ) SIMILAR was the contention of the defendant No. 3 in his written statement. It was denied by the defendant No. 3 in that suit that he was ever approached by the plaintiff for any settlement. With regard to the partition deed, he submitted that there was no occasion for him to arrange for executing the deed in the evening on 28-9-1957. Referring to the suit filed by him, i. e. Title Suit No. 65 of 1971, he submitted that the partition deed was void fraudulent and nullity and could not affect his right, title and interest. ( 11 ) THE learned Subordinate Judge, 7th Court, Alipore disposed of both the suits by a common judgement. Title Suit No. 65 of 1971 was dismissed on contest and Title Suit No. 66 of 1971 was decreed in part on contest. In the last mentioned case, a decree for specific performance of contract was passed in favour of the plaintiff in that suit, i. e. Sailendra. ( 12 ) AGAINST the judgement and decrees passed by the learned court below, two appeals were filed. In the last mentioned case, a decree for specific performance of contract was passed in favour of the plaintiff in that suit, i. e. Sailendra. ( 12 ) AGAINST the judgement and decrees passed by the learned court below, two appeals were filed. F. A. No. 525 of 1974 was filed by Manindra Nath Mukherjee, the plaintiff in Title Suit No. 65 of 1971. Sideshwari, Jatindra, Sachindra and Girindra filed F. A. No. 555 of 1974 against the judgement and decree in T. S. No. 66 of 1971. That is directed against the decree for specific performance of contract against Sidheswari. ( 13 ) TWO cross-objections have been filed by two sets of the heirs of Sailendara, since deceased. One cross-objection has been filed by the respondents 1 (b), 1 (f) and 6. The other cross-objection has been filed by respondents 1 (a), 1 (c) and 1 (e ). The cross-objections are mainly directed against the finding of the court below that Nanilal purchased the properties with his own money. ( 14 ) AS indicated earlier, the learned court below found that Nanilal himself had actually acquired the Calcutta properties with his own money. But the learned court below disposed the suit on the ground that Nanilal himself never wanted to treat the Calcutta properties as his own. He had, in a way, given effect to the doctrine of advancement in India. Finding that Sideshwari and Sailendra were the owners of the Calcutta properties, he refused to go into the ownership of the other properties on the ground that he lost jurisdiction to deal with the 'b' schedule properties, situated in a different district. ( 15 ) MR. Dutta, appearing for the appellants, has argued that the evidence on the record clearly establishes that Nanilal had purchased the properties in the benami of Sailendra, Sidheswari and the other sons. He has next argued that the learned court below should not have invoked the doctrine of advancement. Nanilal, according to him, should be held to have been the real owner and on his death his interest devolved on his sons and Sideshwari. ( 16 ) MR. Dasgupta, appearing for the respondent No. 1 group, has contended that the lower court should have found that Sailendra and Sidheswari had acquired the properties with their own money. The second branch of argument of Mr. ( 16 ) MR. Dasgupta, appearing for the respondent No. 1 group, has contended that the lower court should have found that Sailendra and Sidheswari had acquired the properties with their own money. The second branch of argument of Mr. Dasgupta has been that in any case, even if the consideration money came from Nanilal, he having always treated the properties as the properties of Sailendra and Sidheswari, the last named persons should be treated to be the real owners. ( 17 ) THE first and foremost question is who paid the consideration money for the acquisition of the properties. It appears that the learned court below treated the 'a' scheduled and the 'b' schedule properties in isolation. The learned court below first concentrated on the 'a' scheduled properties and having found that 'a' scheduled properties belonged to Sailendra and Sidheswari, he refused to determine the colour of the 'b' schedule properties. We feel that the approach is not scientific. The totality of the circumstances has to be taken into consideration. Whether the 'a' schedule properties could have been purchased by Nanilal himself, may be determined upon a consideration of all the facts, including the factum of acquisition of the 'b' schedule properties. Now it is settled law that the burden of proving that the transfer is a benami transaction lies on the persons who asserts that it is such a transaction. If it is proved that the purchased 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 the contrary. The true character of the transaction is governed by the intention of the person who had contributed the purchase money. These guidelines were laid down in the decision reported in AIR 1980 SC 727 , cited by Mr. Dutta. In AIR 1977 SC 409 , also cited by Mr. Dutta, it was further pointed out that although the onus of establishing that the transaction was benami was on the plaintiff, where it was not possible to obtain evidence which conclusively established or rebutted the allegation, the case must be dealt with on reasonable probabilities and legal inference arising from the proved or admitted facts. The same view was expressed in the decision reported in AIR 1949 FC 88. The same view was expressed in the decision reported in AIR 1949 FC 88. Bearing these guidelines in mind, we now propose to turn to the facts of this case. ( 18 ) BOTH sides have led oral and documentary evidence. On behalf of the plaintiff, Manindra, six witnesses were examined. Besides, D. W. 1 and D. W. 2, who were the defendants in the first suit, supported the plaintiff's case. On behalf of the defendant, Sailendra, six witnesses were examined. They are D. Ws. 3 to 8. P. W. 1 is Hiralal Mukherjee, a brother of Nanilal. His version is that Nanilal himself had purchased the lands of 1 Lovelock Street with his own money and raised structures thereon out of his funds. 1/1, Lovelock Street, was purchased later on. As to that, his version is that Nanilal himself had purchased the property and this witness took a loan from the co-operative society to make the fund available to Nanilal. There is a general statement that his elder brother, Nanibabu, also acquired several properties in the district of Nadia. It is also affirmed by him that Nanilal possessed all the properties. This witness, however, is not very systematic. According to him, Nanibabu paid Rs. 3,000/- as consideration of one of the Kobalas. But in the next line he says that he does not remember whether he was present at the time of execution of the Kobalas. The house at Premises No. 1, Lovelock Street was constructed, according to him, in 1350 B. S. or so. But actually, the main portion was constructed in 1915. The next witness, P. W. 2, is a clerk of a school and his evidence is not important. P. W. 3, Narendara Nath Banerjee, is a cousin of the plaintiff and the defendants Nos. 1 to 4. He says that Nanilal purchased the property of No. 1, Lovelock Street with his own money in the benami of the defendants Nos. 1 and 5, in 1912. He further states that the defendant No. 1, Sailendra, was then only twelve years old and a student. Construction was started by Nanilal in 1914 or 1915. This witness claims that he looked after the constructions. This witness, as well as P. W. 1, states that the father of the mother of the defendant No. 1 was never affluent. He further states that the defendant No. 1, Sailendra, was then only twelve years old and a student. Construction was started by Nanilal in 1914 or 1915. This witness claims that he looked after the constructions. This witness, as well as P. W. 1, states that the father of the mother of the defendant No. 1 was never affluent. But in his cross-examination, this witness has admitted that he was not present when the lands were purchased. With regard to the construction, however, he claims that the payments to the labourers were made in his presence. He even looked after the construction, as stated by him. P. W. 4 is Manindra Nath Mukherjee himself. He was the plaintiff and he must support the plaint case. P. W. 5 is Heramba Chakraborty, son of one Aswini Chakraborty. He comes to prove that his father was a 'nayeb' under Nanilal and looked after the Palpara properties. His evidence is to be weighed along with the evidence on the defence side. It is curious to note that during his cross-examination on behalf of Sailendra, it was suggested that his father was dismissed by Nanilal for his misconduct. The defence case was that Aswini was never the 'nayeb' under Nanilal. So this suggestion to P. W. 5 in a way militates against the defence case. P. W. 6, Lalmohan Das, comes to prove that he rented a room above the garage from Nanilal Babu in 1943 and paid rent to him. Then D. W. 1 Girindra Nath Mukherjee (the defendant No. 4 in the main suit) says that his father purchased the properties in the benami of the defendants Nos. 1 and 5. This witness had signed a partition deed between Sailendra and Sideshwari. As to that, his explanation during evidence has been that he signed the same without knowing the contents, having implicit faith in Sailen. He also avers that Nanilal mortgaged the property to meet the marriage expenses of Umasashi. D. W. 2 is Sidheswari Debi. She supports the plaint case. The witnesses coming to support defence case start from D. W. 3, Panchanan Majhi. He claims that he cultivates the lands of Sailendra on bhag basis and has taken settlement of orchard on falkar basis. He is emphatic that the sons of Sidheswari never possessed. D. W. 2 is Sidheswari Debi. She supports the plaint case. The witnesses coming to support defence case start from D. W. 3, Panchanan Majhi. He claims that he cultivates the lands of Sailendra on bhag basis and has taken settlement of orchard on falkar basis. He is emphatic that the sons of Sidheswari never possessed. He has even said he had to file a case against the sons of Sideshwari when they went to pluck mangoes. D. W. 4, Benoy Kumar Banerjee, is the Engineer Commissioner. He says that once he acted as Commissioner, being appointed by Court, and on another occasion to effect amicable partition. We are told by the witness that Sidheswari and Sailendra signed a letter requesting him to divide the entire premises in two halves. Ext. L is the plan of allotment prepared by him. According to him Sailendra, Sidheswari and her sons attended during the proceedings conducted by him. D. W. 5 is an employee of the Calcutta Corporation and his evidence is not important. D. W. 6 is Soumen Mukherjee, the son of Sailendara. He is in the category of parties. D. W. 7 is Amarendra Kumar Sanyal, an Advocate. His version is that he acted for Sidheswari and her sons. D. W. 8 is Chandi Pada Banerji. Nanilal was the father of the mother of this witness. The picture depicted by him is that Nanilal was in difficult financial circumstances. There were fifteen members in the family of Nani Babu during the period 1912 to 1915. We are told that Nanilal alone used to meet the expenses of the said family. On the other hand, he has tried to impress upon the court that Sailen had business. As to the acquisition of the Calcutta property, it is his categorical version that Bamapada Babu by selling ornaments of Sarojini financed the half portion of money for the purchase of the lands and construction of house. There, he has introduced a new case; the defendant's case is that Bamapada himself supplied the major part of the money for the purchase of the land and construction of house. There is no case in the written statement that Bamapada sold the ornaments of Sarojini, Sailen's mother, and the first wife of Nanilal. ( 19 ) THIS is the entire oral evidence on the point. There is no case in the written statement that Bamapada sold the ornaments of Sarojini, Sailen's mother, and the first wife of Nanilal. ( 19 ) THIS is the entire oral evidence on the point. The oral evidence is not sufficient to enable the court to come to a definite conclusion. On the side of the defendants, no witness has clearly proved that Sidheswari and Sailendra paid the consideration money. On the side of the plaintiffs, P. W. 1 and P. W. 3 have endeavoured to prove that Nanilal paid the consideration money. But P. W. 3 was not present when the lands were purchased. And P. W. 1's evidence is in some respect inconsistent. It is necessary. therefore, to look more closely to the documentary evidence on the record and the circumstances of the case. As already mentioned, when direct evidence is not available, or is hazy, the matter has to be decided on the basis of probabilities. We have to visualise a case where the properties might have been acquired either by Nanilal or by Sailendra and Sidheswari. One thing to be noticed is that it has never been shown clearly that Sideshwari had means to purchase properties. Sideshwari herself said that she had no independent source of income. Although she was a party, this statement of hers cannot be brushed aside, if we do not find on the basis of other cogent evidence that she had any independent income. The defence case is that Bamapada, the maternal grand father of Sailendra, had supplied the major part of the money for the acquisition of the properties. But it remains inexplicable why Bamapada, in that case, would acquire the properties in the names of Sailendra and Sidheswari. It is unlikely that Bamapada would introduced Sidheswari, if he had advanced the money for the benefit of Sailendra This aspect of Sideshwari's capacity has not at all been explained by the defendants. As to the capacity of Sailendra himself, Ext. 9 series, the letters written by Nanilal, show that he was expressing the lack of capacity to earn on the part of Sailendra. Exts. 9 (m) and 9 (p) clearly bear out Nanilal's lack of confidence about the earning capacity of Sailendra. Ext. 9 (s ). another letter dated 7-12-28, written by Nanilal, indicates that he had to pay municipal taxes and spend a sum of Rs. 57/- for two tyres. Exts. 9 (m) and 9 (p) clearly bear out Nanilal's lack of confidence about the earning capacity of Sailendra. Ext. 9 (s ). another letter dated 7-12-28, written by Nanilal, indicates that he had to pay municipal taxes and spend a sum of Rs. 57/- for two tyres. Ext. 9 (t) indicates that Nanilal was taking active interest in the Palpara properties. The letters indicate that nobody other than Nanilal could have acquired the properties, as there was much of anxiety over Sailen's lack of capacity to earn. They also support the conclusion that Nanilal was taking active interest in the properties and exercised acts of possession. Then come the different Kobalas, Exts. 26 series and Exts. K series. Exts. M and N are the Kobalas in respect of the suit properties, namely properties of Lovelock Street. They no doubt stand in the names of Sailendra and Sidheswari and that is exactly what we have to decide : whether these properties were purchased by Nanilal in the benami of these two persons. Ext. K is a Kobala dated 6-8-21 in favour of Sailendra alone in respect of the Palpara properties. Ext K (1) is another Kobala dated 15-10-28 by Jogeswar in favour of Sailen for Rs. 400/- in respect of some Palpara properties. Apparently, this deed also stands in the name of Sailen alone. But along with that, we have to look into Ext. 15, accounts dated 14-4 and 16-10-28 of Nanilal. In Ext. 15, it is clearly mentioned that Nanilal paid in cash Rs. 412/- on account of purchase of property from Jogeswar. That suggests that although Ext. K (1) stood in the name of Sailendara, it was Nanilal who furnished the consideration money. Exts. K (2) and K (3) are the Kobalas dated 18-9-23 and 14-11-29 respectively in the name of Sailendra. They are regarding some items of the 'b' Schedule properties, i. e. the Palpara properties. Now the interesting feature about these transactions is that it has not been explained how Sailendra could find the money to purchase the properties. All the explanations offered on his behalf have been with regard to the Lovelock Street properties, it is said that Bamapada had supplied the consideration money. But no explanation has been given about Ext. K series. It is true that when the properties covered by Ext. K series were acquired, Sailendra had attained majority. All the explanations offered on his behalf have been with regard to the Lovelock Street properties, it is said that Bamapada had supplied the consideration money. But no explanation has been given about Ext. K series. It is true that when the properties covered by Ext. K series were acquired, Sailendra had attained majority. But still, as we would have occasion to refer, there is no clear indication that Sailendra had earning capacity. It has already been referred to that in the letters, Ext. 9 series, Nanilal was all along expressing his anxiety as regards the lack of earning capacity of Sailendra. Then again, it is noticed that although the documents in respect of some of the Palpara properties stand in the name of Sailen, there are many other documents relating to the Palpara properties, standing in the names of the other sons of Nanilal. Ext. 26 is a sale deed dated 30-8-24 by Jatish Chandra Chatterjee and others in favour of Sailendra Nath Mukherjee and the other sons of Nanilal Mukherjee, including some minor sons of the said Nanilal Mukherjee. Manindra, Sachindra and Girindra were all minors at the time of the sale deed, Ext. 26, was executed in their names and in the name of Sailen. The pertinent question remains who supplied the consideration money for the minor sans. Undoubtedly, nobody other than Nanilal could have paid the consideration money at least for the minor sons. Ext. 26 (a) is another Kobala dated 13-6-22 in favour of Sailendra, Jatindra and Manindra, who was then minor. Ext. 26 (b) is a Kobala dated 29-6-22 in the names of Sailendra, Jatindra, Manindra and Sachindra Manindra and Sachindra were then minors and represented by their father. Ext. 26 (c) is the Kobala dated 25-10-24 in the names of Sailendra, Jatindra, Manindra, Sachindra and Girindra Manindra, Sachindra and Girindra were then minors. Thus, these transactions, Ext. 26 series, furnished clear intrinsic evidence that Nanilal paid the consideration money for purchasing properties in the names of his minor sons; for it is nobody's case that Sailendra or Sidheswari paid the consideration money for the minors in respect of the Kobalas, Ext. 26 series. It is evident, therefore, that Nanilal was in the habit of purchasing properties in the names of his sons, including minor sons. It is also clear that Nanilal had the means to purchase the properties. 26 series. It is evident, therefore, that Nanilal was in the habit of purchasing properties in the names of his sons, including minor sons. It is also clear that Nanilal had the means to purchase the properties. Therefore, the contention on behalf of Sailendra that Nanilal had no means to purchase the properties of Lovelock Street, cannot be sustained. That is why the Lovelock Street properties cannot be considered in isolation and the other transactions have also to be taken into consideration, in finding out whether Nanilal had the means to acquire the properties. The learned court below made this mistake that he considered the Lovelock Street properties in isolation, not considering the other circumstances, furnished by the other transactions, Exts. 26 series and K series, Coming back to the Lovelock Street properties again, it is found that Sailen was then only twelve years or, at most, fifteen years old. On the other hand, Nanilal was in service and had some means. The defence case that Bamapada supplied the consideration money, cannot be accepted for several reasons. Firstly, it is not explained why Bamapada would be supplying money for purchasing property in the joint names of Sailendra and Sidheswari. Secondly, the case in the written statement has been that Bamapada himself had furnished the consideration money. But at the time of trial, a case has been developed that Bamapada sold the ornaments of his deceased daughter, Sarojini to find the money for purchasing the properties. Moreover, there are documents on record going to indicate that Bamapada himself was not in affluent circumstances. Ext. 29 (a) evidence that Bamapada mortgaged his-property by a mortgage deed dated 5-11-08. Ext. 29 (b) is another mortgage deed dated 8-5-11 by Bamapada. By Ext. 29 (c), Bamapada was again mortgaging on 11-7-13. Ext. 29 (d) dated 23-8-16 is another mortgage deed by Bamapada. Then there is Ext. 29 (e), showing that Bamapada once again mortgage his property on 28-6-18. Ultimately, by Ext. 29 (f) dated 10-7-26, Bamapada sold his property to Jogendra as he was deeply in debt. Thus we find that right from 1908 to 1918, Bamapada was all along mortgaging his property. And ultimately he sold out his property in 1926. Clearly, that makes out a picture of utmost distress. It is unacceptable that such a person would come forward during the relevant period to supply money to Sailendra. Thus we find that right from 1908 to 1918, Bamapada was all along mortgaging his property. And ultimately he sold out his property in 1926. Clearly, that makes out a picture of utmost distress. It is unacceptable that such a person would come forward during the relevant period to supply money to Sailendra. Evidence has no doubt been led that Bamapada was a renowned artist. But that is a different matter. The documents on record clearly make out that although he was a renowned artist, he was in distress himself. ( 20 ) IT comes to this that Bamapada could not come forward to help Sailendra to acquire property. It is also not acceptable that Bamapada would help Sailendra to acquire property not only in his own name but in the name of Sidheswari. If Bamapada goes out of the picture, then Sailen's capacity to acquire the properties becomes the pre-eminent question. So far as Ext. M, that is the land of Lovelock Street is concerned, it was impossible for Sailendra to acquire the properties at the age of twelve, or at most, fifteen. Even regarding the other properties, it is not shown that Sailen had sufficient income. Ext. I shows that there was a trade licence in the name of Sailen for doing some business and Ext. E furnishes that some rent bill is in the name of Sailen, proprietor of Chatterjee and Mukherjee and Company. But it is not clear for how long the business of Sailen continued and what profits he earned. It is obvious, however, that Sailen was not in a position to make much earning. Ext. 9 series, the letters from Nanilal, already referred to, disclosed that he was always expressing his anxiety for lack of ability on the part of Sailen to earn. Mr. Dasgupta, the learned Advocate, appearing for the respondents, has sought to demonstrate that Nanilal himself had not much income. But it is an admitted fact that Nanilal was in service and ultimately was promoted to the post of Manager, Jail Depot. Ext. 31 is the history of the service of Nanilal. It has been contended that at the outset, he had a meagre pay. And in or about the time when the Land of Lovelock Street was acquired, his pay was something between Rs. 90/- and Rs. 150/ -. Ext. 31 is the history of the service of Nanilal. It has been contended that at the outset, he had a meagre pay. And in or about the time when the Land of Lovelock Street was acquired, his pay was something between Rs. 90/- and Rs. 150/ -. It has been argued that Nanilal had to bear the burden of a big family and had to pay house rent. It was suggested that after meeting the family expenses Nanilal could not have such saving as to enable him to acquire the land. But it is to be noted that the very fact that Nanilal had himself to bear the burden of a big family indicates that he had some income. Sidheswari herself has stated that Nanilal used to do some other works and augmented his income. And Ext. 10 shows that Nanilal made some extra incomes by way of commissions. What Ext. 10 shows may not be a big sum, but it at least shows that Nanilal had some extra incomes. Undoubtedly Nanilal was earning and that is not disputed. As against that, Sailen could not earn anything as he was in 1912 a minor and a student. Such being the position, the case has to be decided on probabilities. The decisions reported in AIR 1980 SC 727 , AIR 1977 SC 409 and AIR 1949 FC 88, cited by Mr. Dutta, have already been referred to. These decisions clearly lay down that in matters where benami question is raised, the most important test is from whom the purchase money came. The real test is the source whence the consideration came. It has also been laid down that when it is not possible to obtain evidence which conclusively establishes or rebuts the allegation, he case must be dealt with on reasonable probabilities and legal inferences arising from proved or admitted facts. In this case, it is admitted that Nanilal had some income. It is also established beyond reasonable doubt that at least in 1912, Sailendra had no income. And it stands out that Sidheswari, at no point of time, had any independent income of her own. In such circumstances, the reasonable probability would be that it was Nanilal and none else who could acquire the properties. Mr. It is also established beyond reasonable doubt that at least in 1912, Sailendra had no income. And it stands out that Sidheswari, at no point of time, had any independent income of her own. In such circumstances, the reasonable probability would be that it was Nanilal and none else who could acquire the properties. Mr. Dutta has also referred to some other decisions for establishing his case that Nanilal was the person who acquired the properties in the benamis of others. The case reported in 3 Indian Appeals 144 (sic) lays down that the guideline in such cases in India is to consider from what source the money comes with which the purchase money is paid. The decision reported in 6 Indian Appeals 36 (sic), referred to by Mr. Dutta, lays down that where a purchase of a real estate is made by a Hindu in the name of one of his sons, the presumption of Hindu Law is in favour of its being a benami purchase and the burden of proof lies on the party in whose name it was purchased, to prove that he was entitled to the legal and beneficial interest in such purchased state. Again, in 13 Indian Appeals 232 (sic), cited by Mr. Dutta, the same principle is reiterated. It is laid down that in India, the criterion is to consider from what source the purchase money comes. It is also pointed out that the doctrine of advancement does not apply in India. ( 21 ) MR. Dasgupta has referred to a number of decisions on the point of burden of proof as regards benami transaction. He has first referred to the decision, reported in 31 Cal WN 252. The principle enunciated is that the burden of establishing benami is difficult to discharge, but still the person who alleges that the property conveyed to another really belongs to him must prove his allegation and prove it beyond reasonable doubt. Undoubtedly that is the legal position. Again, the decision reported in AIR 1974 SC 171 lays down that the burden of proving that a particular transaction is benami always rests on the person who asserts it and this burden has to be strictly discharged by adducing legal evidence of definite character. Still, Mr. Undoubtedly that is the legal position. Again, the decision reported in AIR 1974 SC 171 lays down that the burden of proving that a particular transaction is benami always rests on the person who asserts it and this burden has to be strictly discharged by adducing legal evidence of definite character. Still, Mr. Dasgupta has referred to other decisions on the same point : they are AIR 1977 SC 796 , (1866-67) 11 Moo Ind App 28 and 25 Cal WN 409. In all these cases, it has been laid down that the burden of proving that a particular transaction is a benami transaction, is on the person who alleges the same. This undoubtedly is the established principle of law and even the decisions cited by Mr. Dutta, lay down the same principle. It is a cardinal principle of law and nobody has ever disputed that principle throughout ages. But that does not mean that in considering whether a particular person has discharged the burden, the probabilities of the case would not be considered. This principle that the burden of proving the benami nature of a transaction lies on the person alleging the same, is not intended to be a technical or a rigid formula but a rational principle. It is a common sense view that has crystallised into legal dicium. We see that the plaintiff, Manindra has led sufficient evidence about Nanilal's capacity to acquire the properties. We see that Sailen, Sidheswari and the other sons of Nanilal, who were minors at the relevant times, could not have any means to acquire the properties. The question of burden of proof is to be decided in these circumstances prevailing. We feel that on the evidences and circumstances placed by the plaintiff, it has been shown beyond reasonable doubts that it was Nanilal only, who could acquire the properties. These transactions must be held to be benami transactions, unless it appears that Nanilal made the purchases for the benefit of the others or that he intended such others to be the owners from the very beginning. ( 22 ) HAVING found, therefore, that Nanilal made the purchases with his own money, it is now necessary to consider whether he intended to make the persons in whose names the purchases were made to be the real owners. ( 22 ) HAVING found, therefore, that Nanilal made the purchases with his own money, it is now necessary to consider whether he intended to make the persons in whose names the purchases were made to be the real owners. It has been pointed out before that the doctrine of advancement does not apply in India. Still, if the person supplying the money intended that the persons in whose names the purchases were made should be the real owners, there should be no reason to refuse to recognise that. Mr. Dasgupta has referred to the decision reported in AIR 1965 SC 271 for the principle that though consideration for sale transaction proceeded from