N. D. V. BHAT, J. ( 1 ) THIS appeal is preferred against the J udgment and decree dated 7-8-1981 passed by the XII Additional City Civil Judge, Bangalore in O. S. No. 7691/1980 (Old O. S. No. 331/1980 ). ( 2 ) THE facts relevant for the disposal of this appeal, briefly stated, are as under: ( 3 ) PLAINTIFF filed the suit at O. S. No. 7691/1980 praying for a decree for partitionby metes and bounds and for allotting the half share, preferably northern half share of the premises to the plaintiff. Among other things, it was alleged by the plaintiff that she purchased the premises (Old No. 189) New No. 55, Subbaram Chetty street, Basavanagudi, Bangalore and that she had given the cash into the hands of the defendant who, in turn, issued a cheque to the vendor at the time of purchasing the property. The property was purchased in the joint name of both the plaintiff and defendant since the defendant was the only son of the plaintiff and since the plaintiff wanted to leave the half share to him after her death. Defendant (since deceased) was the only son of the plaintiff. Everything went on well till his marriage. However, of late defendant and his wife started cooking separately for themselves and plaintiff had to make her own arrangement for her cooking though both have been in the same house. It is, therefore, no longer possible for the parties to live in the same way, plaintiff, therefore, suggested to defendant that the property could be divided into two parts as northern half and southern half and he could take the southern half since that portion contained sufficient open space to park his car. Her notice to that effect to the defendant was not replied to. Therefore, she filed the suit claiming the reliefs referred to herein above. ( 4 ) DEFENDANT resisted the suit of the plaintiff denying that the suit schedule property was purchased from the money belonging to the plaintiff. The allegation in the plaint that plaintiff had given cash and from such cash, the suit schedule house had been purchased was denied by him. ( 4 ) DEFENDANT resisted the suit of the plaintiff denying that the suit schedule property was purchased from the money belonging to the plaintiff. The allegation in the plaint that plaintiff had given cash and from such cash, the suit schedule house had been purchased was denied by him. He took up a contention that the suit schedule property was purchased by him out of his own earning and he alone was the absolute owner of the suit schedule property, though he admitted that the sale deed was taken in the joint name of himself and the plaintiff. He contended that the name of the plaintiff was added only to satisfy her ego and also on the count that she was his mother. According to defendant, plaintiff had no right whatsoever in the suit property and he alone is the absolute owner. He prayed for the dismissal of the suit. ( 5 ) THE lower Court on the basis of the pleadings of the parties raised the following issues: (I) Whether the plaintiff proves that the suit schedule properties were purchased by her with her own monies as contended in para 3 of the plaint? (II) Is plaintiff entitled to any share in the suit schedule properties? (III) Is suit property valued and Court-fee paid is sufficient? (IV) To what reliefs the parlies are entitled? ( 6 ) PLAINTIFF examined herself as a witness. P. W. 2-S. V. Parthasarathy, was examined as a witness. Exts. P. I to P. 4 were marked for the plaintiff. On behalf of the defendant, defendant was examined as a witness. Exts. D. I to D. 3 were marked for the defendant. ( 7 ) THE lower Court on a consideration of the evidence on record and for there asons reflected in its Judgment answered Issue Nos. 1 and 2 in the negative and issue No. 3 in the affirmative. In the result, the suit was dismissed. Hence, the instant appeal by the plaintiff. ( 8 ) WE have heard the learned counsels appearing on cither side. ( 9 ) DURING the pendency of the appeal, defendant expired, with the result, his L. Rs. viz. , the plaintiff and the wife of defendant-Smt. Thangam Bhashyam are brought on record. An additional ground of attack as stated in para-3 is sought to be raised. ( 8 ) WE have heard the learned counsels appearing on cither side. ( 9 ) DURING the pendency of the appeal, defendant expired, with the result, his L. Rs. viz. , the plaintiff and the wife of defendant-Smt. Thangam Bhashyam are brought on record. An additional ground of attack as stated in para-3 is sought to be raised. The additional ground of attack thai is sought to be raised is that the defendant pleaded in his written statement that when he purchased the suit schedule property, plaintiffs name was added to the sale deed as purchaser with due deference to the wishes of an aged mother to satisfy her ego and that he also pleaded that he is the absolute owner of the property and that the above plea of the defendant is that the plaintiff is only a benamidar and the defendant is the real owner and that the said defence is hit by the mischief of provisions of Section 4 (2) of the benami Transactions (Prohibition) Act, 1988. ( 10 ) THE points for consideration in this appeal arc as under: (I) Whether the plaintiff is entitled to any share in the suit schedule property and if entitled to what share? (II) What is the impact of the provisions of Section 4 of the Benami Transactions (Prohibition) Act, 1988 with reference to the suit claim and the defence taken in that behalf? (III) What order?point Nos. 1 and 2 ( 11 ) HAVING regard to the submissions made at the Bar by the learned counsels on either side, we find that Point Nos. 1 and 2 are inextricably mixed up with each other. We have, therefore, taken these two points for discussion together. ( 12 ) BEFORE considering the question relating to the impact of the provisions of Section 4 of the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as the Act), it would be indeed necessary to have a clear idea as regards the claim made by the plaintiff and the defence taken by the defendant (since deceased ). The details of the pleadings of the parties to the suit are already alluded to earlier. In pith and substance, the plea of the plaintiff is that though the property was purchased in the name of plaintiff and defendant by the sale deed at Ex. The details of the pleadings of the parties to the suit are already alluded to earlier. In pith and substance, the plea of the plaintiff is that though the property was purchased in the name of plaintiff and defendant by the sale deed at Ex. D. I, it is the plaintiff who had supplied the entire amount towards the sale transaction by taking a loan from p. W. 2-Parthasarathy, However, she wanted to leave half a share to the defendant after her death since the property was purchased in the joint names of both plaintiff and defendant. It is also necessary to remember here that she claimed only half share in the property. On the other hand, the plea of the defendant, in substance, is that though the property was purchased jointly in the name of himself and plaintiff, the property was purchased with his sole funds and that therefore, plaintiff has no share in the suit property. The lower Court, on a consideration of the evidence on record, took the view that the loan with the help of which the property was purchased was repaid by the defendant and not by the plaintiff. It, therefore, took the view that plaintiff did not have any interest in the suit schedule property. It is on the basis of this conclusion that the lower Court dismissed the suit. ( 13 ) IT is, therefore, necessary in the first instance, to see as to whether the conclusion reached by the lower Court in the way and manner as has been done can be held as justified on a re-appraisal of the totality of the evidence. Thereafter, it will have to be seen as to whether the lower Court was right in dismissing the suit of the plaintiff on the basis of the conclusion that the loan with the help of which the property was purchased was repaid exclusively by the defendant. ( 14 ) IT is seen that the plaintiff in support of her version has relied on here vidence, the evidence of P. W. 2-Parthasarathy as also on Ex. P. 2 the promissory note, Ex. P,3 the consideration receipt, Ex. P. 4 the sale deed dated 28-4-1973 and a copy of the notice at Ex. P. 5. Defendant on the other hand has relied on his own evidence apart from Ex. D. I cheque, Ex. D. 2 memo of calculation and Ex. P. 2 the promissory note, Ex. P,3 the consideration receipt, Ex. P. 4 the sale deed dated 28-4-1973 and a copy of the notice at Ex. P. 5. Defendant on the other hand has relied on his own evidence apart from Ex. D. I cheque, Ex. D. 2 memo of calculation and Ex. D. 3 counterfoils of the cheques. ( 15 ) WHILE appreciating the evidence in a case like this where both parties have kad evidence the Court is indeed required to take an integrated look at the totality of evidence and while doing so it should be its endeavour to identify the main strands of truth. Bearing this in mind it will have to be seen as to where the truth lies. ( 16 ) AT the earliest point of time as reflected in the notice dated 5-3-1980 Ex. P. 5 plaintiff has taken the stand that she purchased the property with her own money. In para 3 of her plaint she has reiterated the same with a further assertion that she had given the cash in the hands of defendant and defendant issued a cheque to the vendors. At this juncture, it is necessary to remember that plaintiff had not remotely whispered about her having taken a loan of Rs. 25,000/- from P. W. 2-Parthasarathy, muchless on her having executed a promissory note at Ex. P. 2. However, in the course of her evidence she has come out with a version as can be seen from para-2 of her deposition that she had taken the loan from P. W. 2-Parthasarathy and had executed a promissory note as per Ex. P. 2 in that behalf. Even here it is significant to note that it was not the version of the plaintiff that she and defendant had together borrowed the loan or had together executed the promissory note. Further as can be seen from para 9 of her deposition in the course of her cross-examination she has unequivocally stated that P. W. 2-Parthasarathy gave her a loan of Rs. 25,0007- and that it was paid in cash. However, it is relevant to note at this stage that P. W. 2 who is examined as a witness for the plaintiff has stated at para-5 of his deposition that he gave a loan of Rs. 25,0007- and that it was paid in cash. However, it is relevant to note at this stage that P. W. 2 who is examined as a witness for the plaintiff has stated at para-5 of his deposition that he gave a loan of Rs. 25,000/-by issue of a cheque in favour of defendant and on the same day defendant gave him an undated cheque for Rs. 27,000/ -. It will suffice at this stage if it is stated that the answer elicited from P. W. 2 as above apart from rendering the version of the plaintiff false in substance, lends credibility and corroboration to the version of defendant as disclosed in para-1 of his deposition. Further the promissory note at Ex. P. 3 said to have been executed by plaintiff and defendant as per Ex. P. 2 bristles with various infirmities and incongruities. We have pointed out earlier, as to how plaintiff hud maintained a studious silence with reference to Exts. P. 3 and P. 4 in her notice and plaint. Apart from that evidence of plaintiff in this context is revealing and casts a cloud of doubt on Exts. P. 3 and P. 4. At para 9 of her deposition, plaintiff has stated as under:"9. Exts. P. 2 and P. 3 were returned to me after I repaid the loan of parthasaralhy. I repaid loan two or three years after I purchased the house. I cannot tell in whose hand the hand-written portion in Exts. P. 2 and P. 3 is. I was not present when Exts. P. 2 and P. 3 were written. I signed Exts. P. 2 and Ex. P. 3 in my house. I might have signed in my name. I do not now remember it if 1 signed it in my house or in the house of Parthasarathy. I do not remember who all were present when I signed Exts. P. 2 and P. 3. 1 cannot tell who else have signed Ex. P. 2 and Ex. P. 3. . Parthasarathy gave me loan of Rs. 25,000/ -. It was paid in cash. I do not remember how many days after I took loan I purchased the house. I cannot say if Parthasarathy paid me consideration under Ex. P. 2 and Ex. P. 3 on the date on which I executed them or subsequently. P. 3. . Parthasarathy gave me loan of Rs. 25,000/ -. It was paid in cash. I do not remember how many days after I took loan I purchased the house. I cannot say if Parthasarathy paid me consideration under Ex. P. 2 and Ex. P. 3 on the date on which I executed them or subsequently. " ( 17 ) IT is needless to say that the answers elicited as above bring into being justifiable suspicion about the genuineness of Ex. P. 2 and Ex. P. 3, It is no doubt true that P. W. 2-Parthasarathy has tried to support the version of plaintiff. However, we are constrained to observe for reasons more than one that the evidence of this witness is also tarred with the same brush. P. W. 2-Par at h as ar a thy has tried to support plaintiffs version in his cxamination-in-chief. He has stated in para-2 of his deposition that he had paid loan to the plaintiff and that plaintiff had executed a pronote in his favour as per Ex. P. 2 and she paid Rs. 15,000/- and Rs. 9,000/- and the balance was paid by her in small sums of money. He has stated that the entire debt was paid by the plaintiff and he has made an endorsement in that behalf on the pronote. However his cross-examination at para-5 of his deposition would go to show as to how he has come out with a different version. He has stated at para-5 of his deposition in the course of his cross-examination as under:"5. I have not given any loan to the plaintiff. I gave loan to both plaintiff and defendant together for purchasing the house. Both had asked me for loan. I gave loan of Rs. 25,000/- by issue of a cheque in favour of defendant. On the same day in repayment of loan the defendant gave me an undated cheque in Rs. 27,000/ -. I see Ex. D. I. It is the same cheque in Rs. 27,000/- which defendant had issued to me (Ex. D. I is produced by the plaintiff ). 1 returned Ex. D. I to the plaintiff after my loan was repaid. I returned Ex. D. I to the plaintiff five years ago. At no other time I had given loan to plaintiff. To defendant I have given loan many a times. 27,000/- which defendant had issued to me (Ex. D. I is produced by the plaintiff ). 1 returned Ex. D. I to the plaintiff after my loan was repaid. I returned Ex. D. I to the plaintiff five years ago. At no other time I had given loan to plaintiff. To defendant I have given loan many a times. For having given loan to defendant at no time I had taken pronote from the defendant. At no time I had taken undated cheque as security for ioan given. It is not true that when I had given loan to defendant, I had taken blank pronotes with his signature. "it will suffice if it is stated that the portion of his evidence culled out hereinabove speaks for itself. Further, the answers elicited at para-7 of his deposition in the course of his cross-examination would indeed act as a nail on the coffin of the case of the plaintiff. P. W. 2 has stated therein as under:"7. On the date on which I gave loan of Rs. 25. 000/- the defendant had issued me a cheque at Rs. 250/ -. It is true that thereafter each month or once in two months the defendant has given me cheques in a sum which was not less thanrs, 250/ -. No payment in cash was made. The defendant has paid me Rs. 1,000/- on 16-3-1973, Rs. 300/- on 12-1-1974, Rs. 500/- on 23-8-1974, Rs. 1,1921- on 15-7-1975, Rs. 2,000/- on 27-12-1974, Rs. 1,000/- on 1-1- 1975, Rs. 2,000/- on 3-7-1976 and Rs. 2,000/- on 24-5-1977. "then again at para-11 of his deposition it is elicited that the defendant had paid him Rs. 2,000/- in cash on 15-11-1979 through Sulochana. ( 18 ) FROM what is slated hereinabove, it is clear that P. W. 2 has condemned himself by his own answers which are at variance with each other at different stages of his deposition. In this view of the matter, we have no hesitation whatsoever in concurring with the conclusion of the learned Additional City Civil Judge that P. W. 2 is not a reliable witness. ( 19 ) AN attempt was made by the plaintiff to show that she had wet lands at Sattega and that she had sold the same and got money and that she used that money to repay the loan of Parthasarathy. ( 19 ) AN attempt was made by the plaintiff to show that she had wet lands at Sattega and that she had sold the same and got money and that she used that money to repay the loan of Parthasarathy. In this connection, the sale deed at Ex. P. 4 (copy) is produced by the plaintiff. The recitals reflected therein would go to show that the property was sold for Rs. 16,000/- and that the same would be received at the time of registration. However, the recitals in the said sale deed would go to show that the property mentioned therein was sold altogether for a different purpose. Further according to the version given by P. W. 2 the amount towards his loan, was paid by the plaintiff once in the month of June, 1973 and for the second time in the year 1977 as disclosed from his evidence at para-9 of his deposition. We have shown earlier as to how P. W. 2 himself has admitted in clear crystal terms at para-7 of his deposition as regards the payment of the several items of amount by the defendant. Under these circumstances, we have no hesitation whatsoever in holding that the version given by the plaintiff and P. W. 2 in this behalf cannot be countenanced at all. ( 20 ) ON the other hand, the version given by ihe defendant is corroborated by the answers given by P. W. 2 in the course of his cross-examination particularly at para-7. Further, he has stated that as recorded in the memo of calculation at Ex. D. 2 he had issued a cheque of Rs. 2,000/- and Rs, 4,000/- in the name of his sister sulochana and that she encashed the cheque and paid the amount in cash to P, W. 2 as desired by P. W. 2 himself. It is necessary to recall here that P. W. 2 has admitted in the course of his cross-examination that defendant had paid Rs. 2,000/- in cash on 15-11-1979 through Sulochana, the daughter of the plaintiff. Though it is no doubt true that P. W. 2 has denied the payment of another sum of Rs. 4,000/- in cash on 29-1-1990, however, having regard to the preponderance of probabilities we are inclined to believe the version of defendant in this behalf. 2,000/- in cash on 15-11-1979 through Sulochana, the daughter of the plaintiff. Though it is no doubt true that P. W. 2 has denied the payment of another sum of Rs. 4,000/- in cash on 29-1-1990, however, having regard to the preponderance of probabilities we are inclined to believe the version of defendant in this behalf. The reason is that this was suggested to P. W. 2 while he was" in the witness box. Sulochana is the daughter of the plaintiff. She was residing with the plaintiff. It was therefore incumbent upon the plaintiff to examine Sulochana. No reason is forthcoming for failure to examine her. We are therefore inclined to accept the evidence of defendant in this behalf. ( 21 ) SRI S. V. Raghavachar, learned counsel for the appellant invited our attention to certain discrepancies in the course of the cross-examination of D. W. 1. However, it will suffice If it is observed that discrepancies do not always affect the testimony of a witness if the core of his evidence is corroborated by independent circumstances. In the instant case, we have shown as to how the evidence of D. W. 1 gains its support from the evidence of P. W. 2 himself and how the different circumstances militate against the case made out by the plaintiff. Under these circumstances, we are not impressed by the discrepancies pointed out by the learned counsel for the appellant. ( 22 ) IT was also argued that the promissory note at Ex. P. 2 and the consideration receipt at Ex. P. 3 bear the signature of the defendant. However, we have shown earlier as to how the alleged execution of the promissory note is highly incredible in the facts and circumstances of the case. It is not necessary for us to risk a repetition here. It is also not as if the defendant has not come out with any explanation in that behalf. In fact, at para-2 of his deposition he had slated that he does not remember when he had made his signature at Exts. P. 2 and P. 3. He has further stated that he had asked P. W. 2 for loan and the latter told him that he did not have money but would help him in getting a loan from the Finance Corporation and for that a pronote would be required to be executed. P. 2 and P. 3. He has further stated that he had asked P. W. 2 for loan and the latter told him that he did not have money but would help him in getting a loan from the Finance Corporation and for that a pronote would be required to be executed. He has further stated that he does not remember for such a purpose he had given a pronote to P. W. 2. Ordinarily, we would not have been inclined to accept this explanation. However, in the context of the totality of the circumstances which we have alluded to earlier with reference to the execution of the promissory note at Ex. P. 2, we are inclined to accept the explanation. The fact that the plaintiff did not make any mention about the execution of promissory note cither in the notice at Ex. P. 5 or in the plaint, and the fact that she has not stated in her evidence that the promissory note was executed by plaintiff and defendant and the fact that the promissory note itself suffers from certain inherent infirmities and the answers elicited in the cross-examination of p. W. 1 and P. W. 2 which are culled out hcrcinabovc if appreciated together would unmistakably go to show that Exts. P. 2 and P. 3 are trained. Under these circumstances, we have no hesitation whatsoever in concurring with the conclusion reached by the lower Court that these are got up documents. ( 23 ) THUS on a re-appraisal of the totality of the evidence on record we have no hesitation to hold that the loan in fact was given to defendant (since deceased) and the loan was repaid by defendant alone to P. W. 2. ( 24 ) IF that be so, the next question which would arise for consideration is as to whether the transaction in question, that is to say, the transaction reflected in Ex. P. I discloses that it is in the nature of Benami. This question is required to be examined with reference to the concept of benami transaction as explained by the judicial pronouncements next before Act No. 45 of 1988 was enacted as also in the light of the definition given in the Act. In this connection, the authoritative pronouncement of the Supreme Court in the decision in Bhim Singh (dead) byl. Rs. In this connection, the authoritative pronouncement of the Supreme Court in the decision in Bhim Singh (dead) byl. Rs. and Another v Kan Singh, AIR 1980 SC 727 is relevant for consideration. In para-14 therein among other things, it is pointed out that two kinds of benami transactions are generally recognised in India. It is pointed out therein that where a person buys a properly with his own money but in the name of another person without any intention to benefit such other person, the transaction is called benami and in that case, the transferee holds the property for the benefit of the person who has contributed the purchase money, and he is the real owner. It is further pointed out thcrcin that the second type which is loosely termed as a benami transaction is a case where a person who is the owner of the property executes a conveyance in favour of another without the intention of transferring the tille to the property thereunder and that in such a situation the transferor continues to he the real owner. It is also pointed out therein that the question whether a transaction is a benami transaction or not mainly depends upon the intention of the person who has contributed the purchase money in ihe former ease and upon the intention of the person who has executed ihe conveyance in the latter case. Explaining the principle governing the determination of the question whether a transfer is a benami transaction or not, the supreme Court has further pointed out that the burden of showing that the transfer is a benami transaction lies on the person who asserts that it is such a transaction and 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 fade assumed to be for the benefit of the person who supplied ihe purchase money, unless there is evidence to ihe contrary and the true character of the transaction is governed by the intention of the person who has contributed the purchase money and the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motives governing their action in bringing about the transaction and their subsequent conduct, etc. ( 25 ) SECTION 2 (a) (Act No. 45 of 1988) of the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as the Act) defines "benami transaction" as any transaction in which property is transferred to one person for a consideration paid or provided by another person. ( 26 ) A perusal of the provisions of Section 2 (a) of the Act would go to show that the same has brought into being an element of change wil h reference to the meaning to be assigned to "benami transaction", in that, it does not have any reference to the intention of the parlies. However, one thing is very clear that before a transaction can be termed as "benami transaction" the property should be transferred to one person for the consideration paid or provided by another person. It is therefore necessary to see as to whether the transaction in the instant case vi/. , the transaction reflected in Ex. P. 1-salc deed in such as would come within the compass of Section 2 (a) or for that matter partakes the complexion of a benami transaction in the light of the principles laid down by the Supreme Court in the aforesaid decision. ( 27 ) SRI Ullal, learned counsel for the respondent contended that if a person from whom the consideration is provided is also on record then the transaction cannot partake the nature of benami. The submission made by Sri Ullal cannot be accepted in the context of the definition of benami transaction in the Act. A careful perusal of ihe definition of "benami transaction" would go to show that whenever a property is transferred to one person for the consideration provided by the other, it would constitute a benami transaction. The question for consideration is as to whether it will make any difference to the definition of benami transaction if the property is transferred together to both the persons that is to say, to the person who has not contributed towards the sale price and to the person who provided the entire consideration. In our view, the same will not make any difference except to the extent to which the transaction will partake the nature of benami. If the interpretation sought to be placed by Sri Ullal is accepted the same would defeat the provisions of Section 2 (a) of the Act. In our view, the same will not make any difference except to the extent to which the transaction will partake the nature of benami. If the interpretation sought to be placed by Sri Ullal is accepted the same would defeat the provisions of Section 2 (a) of the Act. An interpretation which does not advance the object of the Act but on the other hand which would, in substance, defea. 1 the provisions of the Act cannot be accepted and the inlcrprctation if can be reasonably culled out from the language employed in the definition and which also advances the object of the legislation will have to be adopted. ( 28 ) IN the instant case, the properly is transferred by the vendors both to the plaintiff and defendant. We have held earlier hereinabove, that the evidence on record goes to show that the entire consideration amount has flown from defendant to the vendors. It is therefore clear that the transaction to the extent to which the property is transferred to the plaintiff by the sale deed at Ex. P. I is a benami transaction. The Supreme Court in the decision in Mithilesh Kumari and Another v prem Behari Khare, ATR 1989 SC 1247 has pointed out that in its sweep Section 4 of the Act envisages past benami transactions also in its rclroactivity. It is further pointed out that when the remedy is barred the right is rendered unenforceable and all the real owners are equally affected by the disability provision irrespective of the lime of creation of the right. It is further pointed out by the Supreme Court that the subsequent events can be taken note of. It is further pointed by the Supreme Court that where a suit is filed by the real owner for declaration that certain property is held by the defendant as benami and that the plaintiff is the real owner was decreed by the lower Court, but an appeal by special leave against the same was pending before the Supreme Court on the date of the commencement of the Act, the appellate Court is competent to lake into account legislative changes since the decision under appeal was given and its power arc not confined only to see whether the lower Court's decision was correct according to the law as it stood at the time when its decision was given. It is further pointed therein that once the decree of the high Court has been appealed against, the matter became sub-judice again and thereafter the Supreme Court had seisin of the whole case. In view of the provisions of the Act, therefore, the plaintiffs suit or action could not be decreed under the law. It is therefore, clear that said ratio would hold good mutatis mutandis to the facts of this case also. If that be so, the next question for consideration is as to what is the extent of the right or share purported to have been transferred in favour of the plaintiff by the sale deed Ex. P. 1. The sale deed at Ex. P. 1 does not define the share or interest of the plaintiff and the defendant. However, it is disclosed from the sale deed at Ex. P. 1 that both the plaintiff and the dcfcndanl were already in possession of the property as lenanls, next before the dale of sale. The relevant recilals therein are as under: "the vendors have hereby delivered and put the purchasers, who have already been in occupation as the tenants of the vendors in possession of the schedule properly free from all encumbrances. " in the conlexl of the recilals referred to hereinabove and having regard to the fact that both plaintiff and defendant were staying in the same house and that the share of the respeclive vendee is not defined in the sale deed, it appears to us that the sale deed purports lo transfer the rights of the vendors in the properly to the plaintiff and defendant equally. It would therefore follow that the sale deed at Ex. P. 1 purports to transfer the righls of the vendors to the transferees i. e. , plaintiff and defendant in equal shares. In this view of the matter it would follow that the transaction to the extent of transfer of half share in the property in favour of plaintiff is a benami transaction, since the consideration in that behalf also proceeded from the defendant. ( 29 ) ONCE when it is held that the transaction lo the extent of transfer in favour of the plaintiff is a bcnami transaction, it is not permissible for the Court to allow any defence based on any rights in respect of the said property held bcnami. ( 29 ) ONCE when it is held that the transaction lo the extent of transfer in favour of the plaintiff is a bcnami transaction, it is not permissible for the Court to allow any defence based on any rights in respect of the said property held bcnami. In other words, it is not permissible for the defendant to say that the plaintiff has no right to the same because she is a 'benamidar'. Section 4 (2) of the Act enjoins an injunction in this behalf. It reads as under:"4. Prohibition of the right to recover property held benami (1) XXX XXX XXX XXX (2) No defence based on any right in respect of any property held benami, whether against the person is whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf a person claiming to be the real owner of such property. "under the circumstances, it would follow that it is not permissible for the defendant to contend that plaintiff has no share in the property on the ground that consideration towards sale price proceeded from him alone and that plaintiff is only a benamidar or a name lender. ( 30 ) SRI Ullal, however, argued that if the transaction dis closes a benamitransaction then Section 4 (3) (b) of the Act will apply to the facts of this case and section 4 (2) of the Act will not apply at all. Section 4 (3) (b) of the Act reads as under:"4. Prohibition of the right to recover property held benami - (1) XXX XXX XXX XXX (2) XXX XXX XXX XXX (3) Nothing in this section shall apply - (a) xxx xxx xxx (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity. "a perusal of the aforesaid provision would indeed go to show that the same has no application having regard to the fact that the conjunctive ingredients do not co-exist in the instant case as between the plaintiff and defendant. "a perusal of the aforesaid provision would indeed go to show that the same has no application having regard to the fact that the conjunctive ingredients do not co-exist in the instant case as between the plaintiff and defendant. In the light of what is slated hereinabove, particularly with reference to Section 2 (a) of the Act, it is not necessary to consider the nature of the transaction in the context of the decision rendered next before the Act came into force. ( 31 ) FOR the reasons stated hereinabove, it would follow that it is not permissible for the defendant to plead that plaintiff has no right in the property on the ground that the entire consideration proceeded from him. ( 32 ) HENCE, we hold that plaintiff and defendant each had half share in the property. It is seen that the defendant has expired during the pendency of appeal. It is well-settled that subsequent events will have to be taken note of and the Courts will have to mould its decree in the light of the same. Necessary amendment with reference to the bringing of legal heirs that is to say, the instant appellant and respondent has been effected. It is not in dispute that the present appellant and rcspondent-Smt. Thangam Bhashyam are the only heirs of the deceased defendant- m. G. Bhashyam. Under these circumstances, it would follow that the half share in the property left by deceased M. G. Bhashyam will devolve on the instant appellant and respondcnt-Thangam Bhashyam equally. In other words, plaintiff will be entitled totally to 3/4th share and the instant rcspondenl-Sml. Thangam Bhashyam will be entitled to 1/4lh share in the property. The different points pressed for decision are answered as above. ( 33 ) IT would, therefore, follow that the J udgment and decree passed by the lower Court in O. S. No. 7691/1980 are liable to be set aside and suit or the plaintiff deserves to be decreed declaring that the plaintiff is entitled to 3/4th share in the suit property and defendant is entitled to 1/4th share in the suit property. ( 34 ) IN the result, we pass the following order: The appeal is allowed, the Judgment and decree dated 7-8-1981 are hereby set aside. ( 34 ) IN the result, we pass the following order: The appeal is allowed, the Judgment and decree dated 7-8-1981 are hereby set aside. We hereby order that the plaintiff-appellant is entitled to 3/4th share in the suit property described in the schedule to the plaint and we direct the same be divided by metes and bounds and allotting 3/4th share to the plaintiff-appellant and 1/4th share to the defendant-respondent viz. , Smt. Thangam Bhashyam. A preliminary decree shall be drawn up accordingly. ( 35 ) WE direct both the parlies to bear their own costs. --- *** --- .