Judgment :- 1. Defendant in O.S.No.218 of 1983 on the file of Principal Subordinate Judges Court Coimbatore is the appellant 2. The following substantial questions of law have been raised in the memorandum of appeal: (i) Whether the lower appellate court is right in holding the question of benami transaction does not survive in for consideration after the recent enactment of the Benami Transactions (Prohibition) Act, 1988, in view of the decision reported in (1995)2 MLJ. 84 (S.C.).Which has taken a contrary view. (ii) Whether the courts below are right in holding that the suit is maintainable. (iii) Whether the lower appellate court is right in holding the Ex.B-2 the family arrangement is true and valid. (iv) Whether the lower appellate court is right in holding that the possession of the defendant of item 1 of the ‘B’ schedule property is true. 3. The material facts could be summarised thus: Suit was laid by respondents for recovery of possession of items 1 and 2 of ‘B’ schedule and for permanent prohibitory injunction restraining defendant from in any way interfering in plaintiffs possession and enjoyment of the remaining portion of properties described in ‘A’ schedule. 4. Defendant is none other than one of the sons of first plaintiff, who died pending suit. It is the case of first plaintiff that property was purchased by her on 19.10.1945 as per decree in a suit for specific performance of contract for sale. It is her further case that defendant is only licensee in respect of item No.1 in ‘B’ schedule property and while so. he forcibly kept item No.2 of ‘B’ schedule property. Plaintiff does not want the permission to continue and consequently, licence permission was cancelled as per lawyers notice dated 18.4.1983, plaintiffs 2 and 3 also joined suit on the allegation that first plaintiff executed a will on 30.5.1979, whereby they have become owners of the property. 5. Defendant seriously disputed the claim of plaintiffs and alleged that the property was not the self-acquisition property of deceased first plaintiff. But belonged to his grandfather late Rajagopala Sastriyar. He also denied the permission alleged to have been given and alleged encroachment over item No.2 of ‘B’ Schedule. he prayed for dismissal of the suit. 6. Trial court marked Exs.A-1 to A-72 and Exs.B-1 to B-24 apart from Exs.C-1 and C-2, Commissioners report and plan. But belonged to his grandfather late Rajagopala Sastriyar. He also denied the permission alleged to have been given and alleged encroachment over item No.2 of ‘B’ Schedule. he prayed for dismissal of the suit. 6. Trial court marked Exs.A-1 to A-72 and Exs.B-1 to B-24 apart from Exs.C-1 and C-2, Commissioners report and plan. Oral evidence consist of P.Ws.1 to 3 and D.Ws.1 and 2. 7. After evaluating entire evidence, trial court came to the conclusion that the property absolutely belonged to first plaintiff and she has sufficient funds to purchase the property and the contention that she has purchased benami for grandfather is not true. Trial court further held that the occupation of building by defendant is only permissive and as a family member and therefore, he is liable to vacate the premises. It further held that plaintiffs 2 and 3 have become owners of the property. It decreed the suit as prayed for. 8. Appellant preferred A.S.No.51 of 1996 on the file of Second Additional District Judge, Coimbatore. Lower appellate court confirmed all the findings of trial court. 9. While confirming the decree of trial court, lower appellate court found that the property absolutely belonged to first plaintiff and it was her self-acquisition. At the same time, it found that under Benami Transactions (Prohibition) Act; this question cannot be allowed to be agitated and defendant is barred from questioning the title of the plaintiff. It further came to the conclusion that defendant is only a licensee. Contention of defendant that there was family arrangement and first plaintiff executed varthamana letter in his favour are all not genuine. It came to the conclusion that the occupation is only that of licensee. It held that when the relationship between first plaintiff and defendant is that of mother and son, it can be presumed that the occupation is only that of licencee. The case of plaintiffs was believed while dismissing the appeal. It also held that plaintiffs 2 and 3 have every right to continue the suit and get relief sought for since they are the legatees of the will executed by deceased first plaintiff. 10. The concurrent Judgments of courts below are assailed in this appeal on the substantial questions of law, stated above. 11. It also held that plaintiffs 2 and 3 have every right to continue the suit and get relief sought for since they are the legatees of the will executed by deceased first plaintiff. 10. The concurrent Judgments of courts below are assailed in this appeal on the substantial questions of law, stated above. 11. Learned counsel for appellant submitted that first appellate court is a final court on facts and it is has shirked its responsibility in not entering a finding on the benami nature of the transaction. Even though trial court held that the transaction is not benami, lower appellate court did not answer the same on the ground that defendant is not entitled to take such contention under Benami Transactions (Prohibition) Act, counsel submitted that the suit was filed long before 1986 and therefore the conclusion arrived by the courts below in not considering Benami nature of transaction is not proper. Reliance was placed in the decision reported in R.Rajagopal Reddy v. Padmini Chandrasekaran R.Rajagopal Reddy v. Padmini Chandrasekaran R.Rajagopal Reddy v. Padmini Chandrasekaran (1995)2 S.C.C. 630 wherein their Lordships held that the Act is not retrospective. Their Lordships have overruled the earlier decision reported in Mithilesh Kumari v. Prem Behari Khare (1989)2 S.C.C. 95 . It is further argued by learned counsel that their Lordships in that case have made it clear that in regard to suits instituted prior to the Act came into force. the bar provided under the statute will not apply. 12. Learned counsel for respondents submitted that this contention of learned counsel for appellant is correct, but at the same time argued that even though benami transaction not specifically considered, lower appellate court has held that the property absolutely belonged to first plaintiff. This according to learned counsel will amount to holding that first plaintiff is the owner of property and not holding property as benamidar. 13. In a recent decision of Honourable Supreme Court reported in Pawan Kumar Gupta v. Rochiram Nagdeo 1999 A.I.R. S.C.W. 1420 their Lordships considered this question and held that the burden of proving benami is on the person who taken such contention. In para 25 of the judgment their Lordships further held thus: “…when any party proposes to show something which is at variance with the terms of Ex.P-11. the burden of proof is on him. In para 25 of the judgment their Lordships further held thus: “…when any party proposes to show something which is at variance with the terms of Ex.P-11. the burden of proof is on him. When respondent asserted that the real transaction is not what is apparently mentioned in Ex.P-11 the burden is on the respondent to establish the transaction which he assets to be the real one.” In this case trial court as well as lower appellate court held that first plaintiff is the absolute owner of the property. Trial court further held that it is not benami transaction. 14. At the time Ex.A-1 was purchased, appellant herein was only two or three years old and therefore he will not be in a position to contend that the sale deed in favour of first plaintiff is benami. Apart from the same, evidence have been let in by plaintiff herself by examining her husband as to how the source was made out for purchasing plaint schedule property. It was also brought to the notice of the court that apart from plaint property, first plaintiff had other properties also. In fact, before she got property under Ex.A-3, she had already purchased very same property on 1.6.1943 under Ex.A-43, She sold the same under Ex.A-48 on 24.5.1945 to one Masilamani Asari. The property came to the possession of one Nagamani Ammal with whom first plaintiff again entered into agreement for sale and consequently she had filed a suit for specific performance and only thereafter Ex.A-3 sale was taken through court. Trial court as well as lower appellate court held that as per Exs.A-18 to A-40, first plaintiff was exercising absolute ownership over the property. 15. Learned counsel for respondent submitted that if the transaction was really benami for grandfather, brothers and sisters would not have remained for such long time and they would have claimed shares over the property. I find force in the said submission. 16. The submission of the learned counsel for appellant is that grandfather provided funds for purchasing the property. Even if it is assumed so, I do not think that appellant is entitled to succeed on that submission. Before further proceeding into the matter, I further make it clear that the property purchased by plaintiff is not benami and it is absolute property. I am answering only the case of appellant for the sake of its completeness. 17. Even if it is assumed so, I do not think that appellant is entitled to succeed on that submission. Before further proceeding into the matter, I further make it clear that the property purchased by plaintiff is not benami and it is absolute property. I am answering only the case of appellant for the sake of its completeness. 17. Even if there was some help from grandfather, can it be said to be benami. The same was also answered by their Lordships of Honourable Supreme Court in the case of 1999 A.I.R. S.C.W.1420. In paragraphs 27 to 29 of the judgment, their Lordships held thus: “27. It is true that respondent adduced evidence to show that Ext.P11 was proceeded by an agreement entered into between Pyarelal and Narain Prasad for the sale of the suit building. The High Court adverted to the said agreement. But even with that agreement the respondent has only succeeded in showing that Pyarelal had enough money and appellant was not having so much of funds to pay the purchase money for Ex.P-11. Perhaps the said circumstance may lead to an inference that Pyarelal, the father of the appellant, gave money to his son to pay the consideration for buying the property. 28. Sec.3(1) of the Benami Act contains the interdict that no person shall enter into any benami transaction. The aforesaid prohibition has been judicially pronounced as prospective only (Vide: R.Rajagopal Reddy v. Padmini Chandrasekaran R.Rajagopal Reddy v. Padmini Chandrasekaran R.Rajagopal Reddy v. Padmini Chandrasekaran (1995)2 S.C.C. 630 : 1995 A.I.R. S.C.W. 1422. As the Benami Act was passed on 5.9.1988 it would apply to Ext.P11 which was executed subsequently. A contention was bolstered up in the High Court on behalf of the tenant that since the sale consideration was provided by Pyarelal the sale deed would be a benami transaction. 29. Sec.2(a) of the Benami Act defines benami transaction as” any transaction in which property is transferred to one person for a consideration paid or provided by another person“.” The word “provided” in relation to the source or sources from which the real transferee made up funds for buying the sale consideration. The words “paid or provided” are disjunctively employed in the clause and each has to be tagged with the word “conservation”. The words “paid or provided” are disjunctively employed in the clause and each has to be tagged with the word “conservation”. The correct interpretation would be to read it as “consideration paid or consideration provided.” If consideration was paid to the transferor then the word provided has no application as for the said sale, only if the consideration was not paid in regard to a sale transaction the question of providing the consideration would arise. In some cases of sale transaction ready payment of consideration ought not have been effected and them provision would be made for such consideration. The word “provided” in Sec.2(b) of Benami Act cannot be understood in a different sense. Any other interpretation is likely harm the interest of persons involved in genuine transactions, e.g., a purchaser of land might have availed himself of loan facilities from banks to make up purchase money. Could it be said that since the money was provided by the bank it was a benami transaction. [Italics supplied]The concurrent findings of the courts below that first plaintiff is the absolute owner of the property is only to be confirmed. 18. Learned counsel for appellant further argued that his client is not a licensee and the allegation in the plaint describing him as licensee and seeking recovery of possession is not correct. Parties are closely related, i.e., mother and son. 19. David Yates A.J. Hawkins on his book Landlord And Tenant Law, Learned author has said thus: “It may be that, as a result of other factors, the inference that a tenancy was intended is countered in the particular case. As Denying, L.J. observed in Facchini v. Byson: ” In all the cases where an occupier has been held to be a licensee there has been something in the circumstances, such as a family arrangement, an act of friendship or generosity, or such like, to negative any intention to create a tenancy. “ As the passage quoted from the judgment of coming-Bruce L.J. shows, this is perhaps putting the case too strongly, in that a licence can be intended, even in the absence of these special categories. It is, nevertheless, true that the special circumstances surrounding the grant of a right of occupation may, in themselves operate against the normal inference of an intention to create a tenancy….” 20. It is, nevertheless, true that the special circumstances surrounding the grant of a right of occupation may, in themselves operate against the normal inference of an intention to create a tenancy….” 20. In Sohan Lal Naraindas v. Laxmindas Sohan Lal Naraindas v. Laxmindas Sohan Lal Naraindas v. Laxmindas (1971)1 S.C.C. 276 their Lordships considered whether the arrangement in that case was lease or licence. In para 5 of the judgment, their Lordships said thus: “….There is no evidence that the loft was given to the defendant out of sympathy or because of friendship or relationship, or any similar motive. …” [Emphasis supplied] In that case their Lordships consider the document as lease even though its nomenclature was licence. One of the reasons for so holding was that there was no evidence that the left was given to the defendant out of sympathy or because of friendship or relationship, or any similar motive, which according to their Lordships will be an indication of granting licence. 21. Appellant is only a member of the family of deceased first plaintiff. So long as she is alive, appellant cannot have any right over the property nor he could claim right over the same. When mother says that son may be permitted to occupy the property, it is nothing to disbelieve the statement. Under normal circumstances, a licensee is inferred due to close relationship or family arrangement of due to urgent circumstances, etc. In this case, being close relation, such an arrangement could be inferred. The finding of the lower court that appellant can only be a licensee occupying building on permission is only to be confirmed. 22. An argument was also put forward by learned counsel on the basis of Ex.B-2. Both the courts below have found that it is not valid and circumstances under which it came into existence. In fact, there is no serious arguments challenging the findings of the courts below on Ex.B-2. 23. All the questions of law are found against appellant and consequently, the second appeal is dismissed. Taking into consideration the close relationship of the parties. it is only proper to direct parties to suffer their costs. Consequently, C.M.P.No.8955 of 1999 is also dismissed.