Judgment Gurusharan Sharma, J. 1. On 25.9.1972, the plaintiffs-respondents filed Title Suit No. 157 of 1972 (partition) in the Court of First Subordinate Judge, Munger against the defendants-appellants for declaration that the defendant No. 2 was a mere farzidar of the lands described in schedule 2 to the plaint and those lands were joint family properties of the defendant No. 1, his pre-deceased son, Radha Kishun Singh and the plaintiff, and the properties described in scheduled to 4 to the plaint were not the self acquired properties of the defendant No. 2 A further declaration was sought that the sale deeds detailed in schedule 5, covering properties of Schedule 4 to the plaint were illegal, void, without consideration not bindings on the plaintiffs. A preliminary decree for partition of the lands described in schedules 1 and 2 to the plaint of the plaintiffs share was prayed to be passed in the suit. 2. According to plaintiffs, Nunubabu Singh defendant No. 1 of village Barahiya Tarafdari, district-Munger had a son Radha Kishun Singh, Rajendra Singh, the plaintiff No. 1 and Indra Devi, the plaintiff No. 4 were son and daughter of said Radha Kishun Singh. Shyam Kishore Singh and Jai Kishore Singh, the plaintiffs 2 and 3 respectively were minor sons of Rajendra Singh. His first wife died on 13.5.1967. Radha Kishun Singh had married Draupati Devi, defendant No. 2 as his second wife and got six daughters, the defendants 3 to 8 from her. One of the daughters, namely, Satan Devi was major, whereas other five daughters were minor. Radha Kishun Singh died on 20.10.1970. 3. According to plaintiffs, on account of old age of the defendant No. 2, his son Radha Kishun Singh used to look after the family affairs as defect manager of the joint family. The lands described in schedules 1 and 3 to the plaint were the ancestral and joint family lands. Those described in schedule 2 to the plaint originally belonged to proforma defendants first party Nos. 11 to 15. After finalising purchase of schedule 2 lands for a sum of Rs. 45000.00 , Radha Kishun Singh managed Rs. 36000.00 and in order to arrange the balance amount of Rs. 9000.00 , he alone executed sale deed on 14.1.1964 and sold joint family lands, described in schedule 3 to the plaint for a sum of Rs. 11 to 15. After finalising purchase of schedule 2 lands for a sum of Rs. 45000.00 , Radha Kishun Singh managed Rs. 36000.00 and in order to arrange the balance amount of Rs. 9000.00 , he alone executed sale deed on 14.1.1964 and sold joint family lands, described in schedule 3 to the plaint for a sum of Rs. 8998.00 to the father of performa defendant second party No. 16. Thereafter, schedule 2 lands were purchased by registered sale deed dated 24.1.1964 in the name of the defendant No. 2 alone as farzidar in order to save it from the mischief of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus) Land Act, 1961. 4. It was further pleaded that the defendant No. 2 emboldend by the said purchase in her name executed two fictitious and sham sale deeds dated 8.8.1972 in favour of the principal defendant second party Nos. 9 and 10, showing consideration money of Rs. 20,000.00 and Rs. 19,500.00 respectively. Those lands were described in schedule 4 to the plaint. However, by a registered deed of gift dated 15.6.1973 the defendant No. 1 gift his half share in the ancestral joint family lands to the plaintiff No. 1 As such, the plaintiffs claimed 7/9th share in schedule 1 and ll/36th share in schedule 2 properties. On 4.7.1973, during the pendency of the suit Nunubabu Singh, the defendant No. 1 expired. 5. On 16th September, 1974, the defendant No. 2 filed written statement stating, inter-alia, that she purchased the lands detailed in schedule 2 to the plaint from defendants 11 to 15, from her own money, by selling her ornaments and she was not a farzidar. It was incorrect to say that Radha Kishun Singh had sold Schedule 3 lands in order to purchase the schedule 2 lands. She sold lands detailed in Schedule 4 of the plaint to the defendants 9 and 10 for consideration (sic) order to meet the expense of the marriage of her daughter and other necessities. The extent of share claimed in the joint family properties by the plaintiffs was quite incorrect. The plaintiffs and defendants 2 to 8 were never in joint possession of schedule 2 properties. The movable properties detailed in Schedule 1(b) of the paint were herself acquired properties. 6. The extent of share claimed in the joint family properties by the plaintiffs was quite incorrect. The plaintiffs and defendants 2 to 8 were never in joint possession of schedule 2 properties. The movable properties detailed in Schedule 1(b) of the paint were herself acquired properties. 6. On the basis of alleged sale deed dated 15.6.1973 said to be executed by Nunubabu Singh in his favour one Hargovind Singh, the maternal uncle of the plaintiff No. 1 intervened in the suit and was added as defendant No. 17. He also filed a separate written statement claiming to have purchased some lands out of the schedule 1 lands from Nunubabu Singh, the defendant No. 1 for a consideration of Rs. 11,000.00 . 7. By the impugned judgment and preliminary decree dated 25.9.1975, the Second Subordinate Judge, Munger decreed the suit in part declaring the properties mentioned in item No. 2 of schedule 2 to the plaint to be joint family properties of the parties standing in the benami name of the defendant No. 2. Consequently, the sale deeds Exts. A/3 and A/4 executed by the said defendant No. 2 was declared not binding on the plaintiffs. A preliminary decree was passed for giving effect to the sale deed, Ext 1/c and the deed of gift, Ext. 2 executed by Nunubabu Singh out of his half share and separate pattis were to be carved out therefore in the names of defendant No. 17 and the plaintiff No. 1 respectively, Further in the remaining joint family properties, the plaintiff No. 1 got 1/6th share in his own right and both plaintiffs 1 and 4 got 1/27th share out of 1/6th share of their father. However, no decree for partition in respect of movable properties mentioned in schedule 1 (b) of the plaint was passed, as there was no evidence about existence of ownership of the joint family thereon. This appeal was, therefore, filed by the defendant Nos. 2 to 8 against the aforesaid judgment and preliminary decree. 8. However, no decree for partition in respect of movable properties mentioned in schedule 1 (b) of the plaint was passed, as there was no evidence about existence of ownership of the joint family thereon. This appeal was, therefore, filed by the defendant Nos. 2 to 8 against the aforesaid judgment and preliminary decree. 8. During the pendency of this appeal dated 18.2.1977 the plaintiffs-respondents 1 to 4 herein filed a cross-objection challenging the findings of the trial court holding notional partition of the joint family properties into three shares, namely, for Radha Kishun Singh, for Rajendra Singh and for Draupati Devi, whereas according to the provisions of Sec. 6 of the Hindu Succession Act, 1956, the properties in suit ought to have been partitioned half and half between Radha Kishun Singh and at any rate the Draupati Devi was not entitled to equal share alongwith those two persons. She or her children were not entitled to any share in the estate, if any left by late Nanubabu Singh. The trial Court held that 35 decimals land of schedule 1 to the plaint was a joint family property and not exclusive property of the defendant appellant No. 1. According to her the sale deeds, Exts. A and A/1 must be held to be farzi transactions. 9. Inspite of appearance, nobody on behalf of the cross-objector respondents appeared in this appeal to press the crosss objection dated 18.2.1977 and as such it is dismissed as not pressed. 10. Mr. Mazumdar, Senior counsel on behalf of the appellants submitted that the appellant No. 1 was married with Radha Kishan Singh after the death of his first wife. She acquired 35 decimal land by selling her ornaments and consideration money for purchasing schedule 2 properties was arranged from the accumulated income of the said 35 decimals of lands. She was not the benamidar. The sale deed Ext. 1(a) in favour of the intervenor defendant, Hargovind Singh, who was none else, but the maternal uncle of the plaintiff No. 1 and the deed of gift Ext. 2 in favour of the plaintiff No. 1 was void, invalid, inoperative and not binding on the defendants Nos. 2 to 8, whereas the trial court erred in holding the two deeds to bed effective to the extent of the half share of Nunubabu Singh. 2 in favour of the plaintiff No. 1 was void, invalid, inoperative and not binding on the defendants Nos. 2 to 8, whereas the trial court erred in holding the two deeds to bed effective to the extent of the half share of Nunubabu Singh. Both the sale deed and the gift by Numubabu Singh related to schedule 2 properties only. 11. On behalf of the appellant reliance was placed on the decision of Apex Court in Kanakarathanammal V/s. Loganatha Mudaliar and Anr. -- , wherein it was held that the purchase was not benami in the name of the wife rather the property was acquired by plaintiffs father with his own money for her mother. In effect it was the father who purchased the property with the intention of conferring the beneficial interest solely upon the mother. Such transaction must, therefore, amount to a gift. 12. in Tulsi Ammal V/s. Official Receiver, Coimbatore AIR 1934 Madras 671 it was held that if the husband purchased property in the name of his junior wife and the money for the purchase came from his purse, with a view to defeat the claim of his elder wife and her son, it was intended to be a real and such transaction could not be regarded as a mere naked benami conveyance, rather the beneficial interest passed to the wife. 13. In Chittaluri Sitamma and Anr. V/s. Saphar Sitapatirao and Ors. AIR 1938 Madras 8, it was held that the onus at the first instance was on the person who pleaded that the transaction was benami. The mere suspicion that the purchase might not have wholly been made with the ladys money would certainly not suffice to establish that the purchases were benami nor have wholly been made with the ladys money would certainly not suffice to establish that the purchases were benami nor even the suspicion that money belonged to the husband. Even in cases where there was positive evidence that money had been contributed by the husband and not by the wife, that circumstances was not conclusive in favour of the benami character of the transaction, though it was an important criterion. 14. Even in cases where there was positive evidence that money had been contributed by the husband and not by the wife, that circumstances was not conclusive in favour of the benami character of the transaction, though it was an important criterion. 14. It is well settled that money may "have been contributed by another towards a purchase with the intention of giving by another towards a purchase with the intention of giving by another interest to the person in whose name the purchase was made. The relationship of husband and wife between the person who contributed the money and the person in whose name the sale was taken would be a very important factor in determining whether the transaction was really meant for the benefit of the wife or not. Where the motive alleged for benami transactions itself suggested that the purpose in view could be served only by a genuine transfer and not by a mere benami transaction, the more reasonable inference was that the transfer was intended to be operative as a transfer of the beneficial interest and not as a mere benami transaction. 15. Recently in Md. Abuzar V/s. Akbar Imam Saheb and Ors. (1996) 1 All PLR 1, this Court held that once a registered sale deed was obtained for adequate consideration and somebody felt aggrieved he was required to file a suit for cancellation of the same within a period of three years, as contemplated by Article 59 of the Limitation Act, 1963, but it was not done inspite of knowledge thereof and nothing was said in defence as to why such suit was not filed within three years, the claim and the right of the said aggrieved person, if any was, therefore, barred by limitation. 16. Both the original sale deeds, Exts. A and A/1 were produced by the defendant No. 2 from her own custody. The plaintiffs failed to prove that if Radha Kishun Singh paid the consideration amount thereof, what was the motive for those transactions in the name of his wife. 16. Both the original sale deeds, Exts. A and A/1 were produced by the defendant No. 2 from her own custody. The plaintiffs failed to prove that if Radha Kishun Singh paid the consideration amount thereof, what was the motive for those transactions in the name of his wife. The only motive pointed out by the plaintiffs that it was done to avoid mischief of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 was absurd and not tenable for the reason that under Sec. 2(ee) of the Act the "family" meant and included a person, his or her spouse and minor children and as such the lands standing in the name of the wife was to be treated as the lands of the landholder, Radha Kishun Singh. The trial Court, therefore, erred in law in accepting the said absurd plea of the plaintiffs in the impugned judgment. 17. Inspite of knowledge that Schedule 2 lands were purchased by registered sale deeds Exts. A an A/1 in the name of the defendant No. 2. if at all the defendant No. 1 or plaintiff No. 1 felt aggrieved, they did not file any suit for cancellation and declaration of those sale deeds to be void within three years and thereafter their claim and right, if any became barred by limitation. Even in the present partition the plaintiffs did not pay even a declaratory Court fee in respect of the sale deeds, Exts. A and A/1. 18. Another strong circumstance was that after the defendant No, 2 transferred 7.1/2 acres land, out of the lands covered under Exts. A and A/1-Schedule 2 to the plaint to the defendants 9 and 10 by Exts. A/3 and A/4, neither the defendant No. 1 nor the plaintiff No. 1 protested the transaction nor filed any suit for cancellation thereof within the limitation period. 19. P.Ws. 3, 4 and 6 tried to impress in their depositions that there was no negotiation of purchase of Schedule 2 lands with the defendant No. 2, rather here husband negotiated and finalised it. It s not in dispute that the defendant No. 2 was a pardanashin lady and so her husband was the appropriate person to negotiate any purchase on her behalf. There was nothing absurd or abnormal in it and for the said reason it cannot be said that the transactions were benami. It s not in dispute that the defendant No. 2 was a pardanashin lady and so her husband was the appropriate person to negotiate any purchase on her behalf. There was nothing absurd or abnormal in it and for the said reason it cannot be said that the transactions were benami. 20. Entire consideration amount in respect of Exts. A and A/1 was paid in presence of the registering authority, when those deeds were presented for admission of execution and endorsement to that effect was made thereon by the said authority. This also proved that the consideration was paid by the purchaser rand none else. 21. The defendant No. 2 examined herself as D.W. 7 in the suit and supported her case of self acquisition of schedule 2 lands and the plaintiffs, while cross examinationing her did not get anything to discredit her evidence in this regard. 22. P.W. 2, Ambika Singh, who came to support the plaintiffs case of benami purchase was none else, but son of Kuldip Singh, the purchaser through Ext. 1 and so he was the most highly interested witness and his testimony could not have been relied upon. It is important to point out that one of the plaintiffs witnesses, namely, P, W.4 supported the case of defendant No. 2 Further full brother of Ambika Singh, namely, Hardeo Singh deposed for the defendant No. 2 as D.W. 11 and supported her case and claim. D.Ws. 1, 4 and 5 deposed that they had cultivated the lands of the defendant No. 2 on yearly agricultural lease. 23. Even if, consideration amount for schedule 2 lands was paid by the husband of the defendant No. 2,it cannot be ruled out that the said purchase was entirely for the benefit of his wife. In such situation on the ratio of various judicial pronouncements in this regard ennumerated in paragraphs 11 to 15 above, in my opinion, the transactions in question vide Exts. A and A/1 cannot be said to be benami. The finding of the trial court to that extent stands reversed. 24. I, therefore, hood that the schedule 2 properties did not belong to the joint family. There was no unity of title and possession of the parties therein. It was the exclusive property of the defendant No. 2. The plaintiffs were not entitled to ask for partition thereof Consequently the sale deed, Ext. 24. I, therefore, hood that the schedule 2 properties did not belong to the joint family. There was no unity of title and possession of the parties therein. It was the exclusive property of the defendant No. 2. The plaintiffs were not entitled to ask for partition thereof Consequently the sale deed, Ext. 1(b) and the deed of gift (Ext.2) executeed by the defendant No. 1 in favour of the defendant No. 17 and the plaintiff No. 1 respectively in respect of the schedule 2 lands were void and not binding upon the defendant No. 2 and she was entitled to recover possession thereof. 25. Since during the pendency of the suit the defendant No. 1 dies, in the remaining joint family properties the parties i.e. the plaintiffs, 1 to 4 and the defendants 2 to 8 shall be entitled to 1/9th share each. 26. In the result the impugned judgment and the preliminary decree are set aside and modified to the extent indicated above and the Appeal is disposed of accordingly. However, there shall be no order as to costs.