P. N. Nag, J. ( 1 ) THIS regular second appeal is directed against thejudgment and decree dated 4. 2. 1976 passed by Shri Jaspal Singh, Additionaldistrict Judge, Delhi (as he then was) whereby he has allowed the appeal andset aside the judgment and decree dated 30. 4. 1974 passed by Shri Gopalkrishan, Sub-Judge 1st Class, Delhi and dismissed the suit. ( 2 ) THE appellant-plaintiff filed a suit for declatation to the effect thatthe property No. WZ-61, Mahabir Nagar. New Delhi vested in the entirebody of legal heirs of deceased, Shri Malik Chand. He claimed that theplaintiff and defendants 1, 3 to 5 are the children of Shri Malik Chand anddefendant No. 2 is his widow. The plaintiff s father Shri Malik Chand hadpurchased one plot of land No. 47, measuring 200 sq. yards in Mahabirnagar, New Delhi in the benami name of defendant No. 1, i. e. , Shri Vedparkash, out of his own earnings and thereafter constructed a house thereonbearing the aforementioned house No. WZ-61 and also enjoyed the profitsthereof throughout his life. Defendant No. 1 is not the real owner of theproperty as he could not purchase the plot and raised construction thereon. In the year 1954, when the plot m question was purchased and constructionraised thereon, defendant No. 1 was only a student, and had no source ofincome and was only a minor of 13 years. Since Shri Malik Chand had diedwithout a Will, the plaintiff along with the defendants had become jointowners as the legal heirs of said Shri Malik Chand and defendant No. 1exclusively could not be the owner of the property. ( 3 ) DEFENDANT No. 1 contested this suit and denied that his father hadpurchased the plot or raised constructions thereon from his own earnings. According to him, the plot was purchased by him from his own savings andconstruction had been raised thereon by him with the assistance of his lateuncle Shri Wazir Chand, who was issueless. Being the eldest child of hisparents and his uncle being issueless, defendant No. 1 used to get pocketmoney from his parents and uncle and from those savings he purchased theplot and raised construction thereon. Defendants 2 to 5 supported the caseof the plaintiff. ( 4 ) ONE of the relevant issues framed in the suit was. Issue No. 2,which reads as under : "2. Defendants 2 to 5 supported the caseof the plaintiff. ( 4 ) ONE of the relevant issues framed in the suit was. Issue No. 2,which reads as under : "2. Whether Shri Malik Chand, father of the plaintiff purchased the plot in question in the Benami name of defendant No. 1vide sale deed dated 20. 7. 1954 as detailed in para 2 of the plaint?opp" ( 5 ) THE learned Trial Court after scrutinizing the evidence, vide bisjudgment dated 30. 4. 1974, held that the property was purchased by Shrimalik Chand in the name of defendant No. 1 and the sale deed dated20. 7. 1954 which is Ext. D 1 is benami in the name of defendant No. 1. Thetrial Court, therefore, decreed the suit. However, this judgment was setaside by the learned appellate Court in appeal vide order dated 4. 2. 1976,which is under challenge in this regular second appeal. ( 6 ) WHAT should be the standard proof and on whom onus and prooffor determining whether or not a particular transaction of transfer of properly was a Benami sale was considered by the Supreme Court in Jaydayalpoddar (Deceased) through L. Rs. and Another v. Mst. Bibi Hazra and Others,air 1974 SC 170 ). In that case, the Supreme Court has explained in Para 6as under: "6. It is well settled that the burden of proving that a particular sale is Benami and the apparent purchaser is not the realowner, always rests on the person asserting it to be so. This burdenhas to be strictly discharged by adducing legal evidence of a definitecharacter which would either directly prove the fact of Benami orestablish circumstances unerringly and reasonably raising an inference of that fact. The- essence of a Benami is the intention ofthe party or parties concerned; and not unoften such intention isshrouded in a thick veil which cannot be easily pierced through. Butsuch difficulties do not relieve the person asserting the transactionto be Benami of any part of the serious onus that rests on him; norjustify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn documentprepared and executed after considerable deliberation, and theperson expressly shown as the purchaser or transferee in the deed,starts with the initial presumption in his favour that the apparentstate of affairs is the real state of affairs. The reason is that a deed is a solemn documentprepared and executed after considerable deliberation, and theperson expressly shown as the purchaser or transferee in the deed,starts with the initial presumption in his favour that the apparentstate of affairs is the real state of affairs. Though the questionwhether a particular sale is Benami or not, is largely one of fact,and for determining this question, no absolute formulae or acidtest, uniformally applicable in all situations, can be laid down; yetin weighing the probabilities and for gathering the relevant indicia,the Courts are usually guided by these circumstances: (1) thesource from which the purchase money came; (2) the nature andpossession of the property, after the purchase; (!) motive, if any,for giving the transaction a Benami colour; (4) the position of theparties and the relationship, if any, between the claimant and thealleged benamidar; (5) the custody of the title-deeds after the saleand (6) the conduct of the parties concerned in dealing with theproperty after the sale. The above indicia are not exhaustive and their efficacy variesaccording to the facts of each case. Nevertheless No. 1, viz. , thesource whence the purchase money came, is by far the most important test for determining whether the sale standing in the name ofone person, is in reality for the benefit of another. ". ( 7 ) SIMILAR view has also been expressed by the Supreme Court inbhim Sittgh (dead) by L. Rs. and Another v. Kan Singh, ( AIR 1980 SC 727 ). ( 8 ) IN case the present appeal is examined in the context of the lawlaid down by the Supreme Court I am of the considered opinion that theplaintiff has failed to substantiate his case that the sale in favour of defendant No. 1 is only Benami. In fact the learned appellate Court has, afterappreciating evidence in the right context, has correctly come to this conclusion that theplaintiff has failed to prove that the sale in favour of respondent No. 1 was Benami. There is no dispute that the sale deed of the plotin question has been effected in the name of the defendant No. 1. In fact the learned appellate Court has, afterappreciating evidence in the right context, has correctly come to this conclusion that theplaintiff has failed to prove that the sale in favour of respondent No. 1 was Benami. There is no dispute that the sale deed of the plotin question has been effected in the name of the defendant No. 1. No docu-mentary evidence has been led to prove by the plaintiff to show that the payment of the consideration money for the purchase of the plot has been paidby Shri Malik Chand nor has he stated in his testimony that the consideration was paid by his father in his presence. It has further not been provedby documentary evidence or otherwise satisfactorily that after the purchaseof plot the construction was raised by Shri Malik Chand. It has also been revealed during the course of evidence that Shri Malik Chand, the father ofthe plaintiff, had a bank balance of Rs. 1,100. 00, Rs. 1,200. 00 and no attemptwhatsoever has been made by the plaintiff to demonstrate that Shri Malikchand withdrew the money from the bank for the purchase of the plot orfor the construction thereon. Furthermore, the case set up by the plaintiff-appellant is that the plot was purchased and building constructed by hisfather with a view to benefit him. However, no tenant has been examinedand no document has been placed on record to show that he bad let out thebuilding and recovered the rent from the tenants. ( 9 ) IT has been further revealed from the cross-examination of theplaintiff that Shri Malik Chand had filed the eviction petition and after hisdeath, the appellant-plaintiff had made an application to be made party asone of the L. Rs. but that application has not been placed on record. Aboveall Shri Malik Chand never disclosed to anybody, during his life time, that the property in dispute was Benami nor any evidence produced to show thathis father had purchased the property as Benami. ( 10 ) THE appellant Court has discussed all such pieces of evidence,amongst others, and has rightly come to the conclusion that the burden ofproof that the sale was Benami has not been properly discharged by theplaintiff as is clearly laid down by the Supreme Court in Jaydayal Poddar (Deceased) through L. Rs. ( 10 ) THE appellant Court has discussed all such pieces of evidence,amongst others, and has rightly come to the conclusion that the burden ofproof that the sale was Benami has not been properly discharged by theplaintiff as is clearly laid down by the Supreme Court in Jaydayal Poddar (Deceased) through L. Rs. and Another (supra) that the burden of proving thata particular sale is Benami and the apparent purchaser is not the real owner,always rests on the person asserting it to be so. This burden has to bestrictly discharged by adducing legal evidence of a definite character whichwould either directly prove the fact of Benami or establish circumstances unerringly and reasonably raising an inference of that fact. Therefore, nointerference is called for in this appeal. ( 11 ) EVEN otherwise, the learned appellate Court has, after appreciation of evidence, come to the conclusion that the transaction of sale in favourof defendant No. 1 was not Benami and such finding essentially in the presentfacts and circumstances of the case, is a finding of fact. At the cost of repetition in Jaydayal Poddar (Deceased) through L. Rs. and Another, (supra) the Supreme Court has laid down whether or not a particular sale is Benami, islargely one of fact. Therefore, under Section 100 of the Code of Civilprocedure the Court cannot interfere with a finding of fact. ( 12 ) WITH the result, the appeal fails and has to be dismissedaccordingly. ( 13 ) HOWEVER, I may note down the submissions of Mr. Saini, learned Counsel for the appellant, that defendant No. 1 could not purchase the property in dispute andraise construction thereon as at the time of the transaction in 1954 he was only a student, a minor aged 13 years. The learnedappellate Court has rightly held that his late uncle Shri Wazir Chand, whowas issueless and being the eldest child of his parents, defendant No. 1 usedto get pocket money from his parents and uncle and from those savings hepurchased the plot and raised construction thereon. Mr. Saini has tried toassail the judgment by pointing out that it has not been proved on record bydefendant No. 1 that the defendant No. 1 has purchased the plot and raisedconstruction thereon. Mr. Saini has tried toassail the judgment by pointing out that it has not been proved on record bydefendant No. 1 that the defendant No. 1 has purchased the plot and raisedconstruction thereon. In this context, it is only sufficient to say that in thecontext of the law laid down by the Supreme Court, the plaintiff was toestablish his case and place sufficient material to substantiate his case to theeffect that the plot was purchased and building constructed thereon by Shrimalik Chand and the burden of proof that a particular sale was Benami wason him and not on defendant No. 1 and the learned appellate Court hasrightly come to the conclusion which is essentially a finding of fact. ( 14 ) MR. Saini next contended that some will was executed by Shrimalik Chand in which there is a recital that the plot in question was purchased by him in the name of defendant No. 1, his son. This document hasneither been proved nor exhibited and cannot be looked into and in theabsence of which this contention cannot be accepted. ( 15 ) IN view of the above discussion, the appeal fails and is dismissedwith no order as to costs.