Judgment :- 1. This Second Appeal is by the plaintiff who has lost his case for partition in both the courts below. 2. According to the plaintiff the suit first schedule house property and the second schedule movable properties belonged to his father Mohammed Ibrahim. He is the son of Mohammed Ibrahim through his deceased third wife. Defendant is his fourth wife. Mohammed Ibrahim purchased the site of the first schedule property benami in the name of his fourth wife-the defendant with his own funds and then he constructed the superstructure and he was paying tax for the same. Mohammed Ibrahim died on 14.5.1975. The plaintiff who was a Police Officer was away from their place on duty and therefore the defendant was residing in the house. The second schedule movable properties which are in the house were left by Mohammed Ibrahim. When the plaintiff wanted partition of the properties the defendant refused. Therefore the suit for partition of his 7/8 share. 3. The defendant denied that the site was purchased by Mohammed Ibrahim benami in her name and contended that she purchased it for Rs. 100/- with her own funds on 29.11.1954 under Ex. B23. She denied that the house was constructed with the funds of Mohammed Ibrahim and she contended that it was with her own funds she put up the superstructure. She further contented that the assessment of the house which was in the name of Mohammed Ibrahim in 1973 was changed into her name at the instance of Mohammed Ibrahim himself. She further contended that the second schedule movable properties belonged to her and the plaintiff has no right in it. On these grounds she prayed for dismissal of the suit. 4. The trial court on consideration of the evidence held that it is not true that the site of the house was purchased benami in the name of the defendant by her husband Mohammed Ibrahim and it was purchased by the defendant herself with her own funds. It further held that it is not true that it was Mohammed Ibrahim who put up the construction. It also held that there is nothing to prove that Mohammed Ibrahim was the owner of the movables. On these grounds the trial court dismissed the suit. On appeal by the plaintiff the appellate Court concurred with the findings of the trial court and dismissed the appeal. 5. It also held that there is nothing to prove that Mohammed Ibrahim was the owner of the movables. On these grounds the trial court dismissed the suit. On appeal by the plaintiff the appellate Court concurred with the findings of the trial court and dismissed the appeal. 5. Now in the second appeal it is contended that the findings of the courts below that the site was not purchased by Mohammed Ibrahim benami in the name of the defendant is erroneous and contrary to the evidence. But I do not think that this plea is open to the plaintiff in view of the Benami Transactions (Prohibition) Act, 1988. Under S. 4 of the Act such a plea is prohibited. It is however contended by Mr. T. Arulraj, learned counsel for the plaintiff that the plaintiffs case comes under S. 4 (3)(b) which is one of the exceptions to the general rule of Prohibition. As per this section the general prohibition will not apply 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. But it must be remembered, the suit property stands in the name of the wife who cannot be said to be standing in a fiduciary capacity as envisaged in the said S. 4(3)(b). Therefore there is no merit in the contention of the learned counsel. 6. Even otherwise, on facts, both the Courts below have found that the site has not been purchased by Mohammed Ibrahim in the name of the defendant and it has been purchased by her with her own funds. Further the Courts below have, on consideration of the evidence, concurrently found that the defendant had sufficient funds to purchase the site, the sale price being Rs. 100/-. This concurrent finding cannot be interfered with in the second appeal. It is contended by the learned counsel that Exs. A1 and A2 have not been considered by the Courts below. But both these documents are of no use to the plaintiff. Ex. 100/-. This concurrent finding cannot be interfered with in the second appeal. It is contended by the learned counsel that Exs. A1 and A2 have not been considered by the Courts below. But both these documents are of no use to the plaintiff. Ex. A1 has been filed for the purpose of showing that the defendants sisters son has written a letter to the plaintiffs father telling him that his mother told him that his father had written three letters to uncle A.B.A. Sahib about the house site. This in no way will help to prove that the site was purchased by Mohammed Ibrahim. Ex. A2 shows that the vendor Mohammed Ibrahim has written a letter to the plaintiffs father wherein he has stated that he would pay the amount due to him shortly and he has further stated that before 15th of next month he would decide about the site. This also in no way will help the plaintiff to prove that the site was purchased by his father. It must be remembered, whereas these two letters are dated 30.11.1951 and 4.2.1952, the sale deed Ex. B23 was executed on 29.11.1954. Therefore, there is absolutely no reason to disagree with the said concurrent findings of the courts below that Mohammed Ibrahim has not purchased the site benami in the name of his wife-defendant. 7. As regards superstructure, in the normal course, whoever is the owner of the site would erect the superstructure. Therefore, the legitimate presumption is that the defendant has build the house. If it is the case of the plaintiff that the house was built by his father inspite of the fact that the site stands in the name of the defendant, then it must be proved by strong evidence. No such evidence has been adduced. For this Mr. Arulraj would submit that Exs. A6, A7 and A10 would show that the house was built by Mohammed Ibrahim. Ex. A6 is a letter by Mohammed Ibrahim to the Tenkasi Panchayat seeking permission to construct a house and Ex. A7 is the permission. Ex. A10 is a small book of accounts wherein, according to the plaintiff, Mohammed Ibrahim has mentioned about the expenditures incurred for construction of the house. Ex. A6 is a letter by Mohammed Ibrahim to the Tenkasi Panchayat seeking permission to construct a house and Ex. A7 is the permission. Ex. A10 is a small book of accounts wherein, according to the plaintiff, Mohammed Ibrahim has mentioned about the expenditures incurred for construction of the house. But Mohammed Ibrahim being the husband and the defendant being his wife, it is quite understandable he might have sent the letter of request for permission in his name to construct the house and permission has been granted. A look at Ex. A10, if at all it is genuine one, will only show that Mohammed Ibrahim has mentioned some expenditure for constructing a house. From this it cannot at all be said that for the construction he spent his own money and not that of the defendant. It must always be remembered that Mohammed Ibrahim is none other than the husband of the defendant and therefore, there is absolutely nothing strange in him maintaining accounts of the money spent by his wife for construction. Therefore there is nothing to show that the construction was put up by Mohammed Ibrahim. Hence the courts below have rightly held that the first schedule property belongs to the defendant absolutely. 8. As regards the second schedule movables, the Courts below have correctly stated that there is nothing to show that these movables were purchased by Mohammed Ibrahim. It is the definite case of the defendant that they all belonged to her. In the absence of any evidence that they were purchased by Mohammed Ibrahim the plaintiff cannot get any right in them. Mr. Arulraj in support of his contention relied on a decision of Rangoon High Court in Marhatur and another v. Ra Bi Bi and others AIR 1933 Rang. 393 wherein it appears that the court has, in the circumstances of that case, held that the Commissioner has expressed his view that in a Mohamedan family there is a presumption that cash and household furniture belong to the husband, and there is nothing to suggest that this view is not correct. But no basis for this view seems to have been stated by the Commissioner. Before me no text book on Mohamedan law has been read which would show that there is such a presumption in the Mohamedan law. But no basis for this view seems to have been stated by the Commissioner. Before me no text book on Mohamedan law has been read which would show that there is such a presumption in the Mohamedan law. The general law is that whoever alleges that a particular movable property belongs to any person, when that allegation is denied, he must prove that allegation is true. Therefore, with great respect I am unable to agree with the said Judgment of Rangoon High Court. 9. Thus I find no merit in the appeal. Accordingly it is dismissed. However there will be no order as to costs.