JUDGMENT: 1. This is a second appeal by defendant against the 2. The facts giving rise to this appeal are as follows. Plaintiff is the daughter of one Mohammad Sabir while the defendant no.1 is mother of the plaintiff and ex-wife of deceased Mohammad Sabir. Deceased Mohd.Sabir was serving as a driver in the State Transport Corporation. He died on 15/12/1985. The plaintiff is the only child born to defendant no.1 from Mohd.Sabir. The plaintiff was married in the year 1984 during the life time of Mohd.Sabir. Mohd.Sabir died on 15/12/1985 and soon thereafter i.e. on 3/9/1986, defendant no.1 entered into a marriage with one Abdul Latif. 3. Mohd.Sabir was earning Rs.1000/-per month as a salary on an average. Mohd.Sabir agreed to purchase a plot from one Abdul Rahim s/o Sk.Ibrahim. There was an agreement of sale on 30/12/1977. Mohd.Sabir had paid entire consideration to Abdul Rahim on 30/12/1977 only. The sale deed could not be executed in favour of Mohd.Sabilr due to the Urban Land Ceiling Law. It was agreed that the sale-deed would be executed in favour of Mohd.Sabir on 28/1/1978, however, it came to be executed on concurrent findings. The parties shall hereinafter be referred to as plaintiff and defendant. 17/10/1979. It is the contention of the plaintiff that entire consideration for the purchase of the said house was paid by Mohd.Sabir. Although agreement of sale was in the name of Mohd.Sabir, the sale-deed came to be executed in the name of defendant no.1. The plaintiff submits that defendant no.1 had no source of income whatsoever and she did not contribute even a single pie towards consideration. It is contended that since Mohd.Sabir's relations with his brothers were not cordial, he had apprehension that his brothers may lay claim on the property and therefore, he ostensibly purchased the same in the name of defendant no.1. Further, it is contended that the plaintiff being daughter was entitled to succeed to the amount which was lying with the State Transport Corporation in respect of Government Provident Fund (GPF) and Gratuity of deceased Mohd.Sabir. It is contended that the defendant has collected sum of Rs.16,780/-on account of provident fund and Rs.21,746/-on account of gratuity. The plaintiff claims partition and separate possession of the house to the extent of 7/8th share in respect of the entire property. 4. Defendant no.1 had resisted the suit by filing written statement. It is contended that the defendant has collected sum of Rs.16,780/-on account of provident fund and Rs.21,746/-on account of gratuity. The plaintiff claims partition and separate possession of the house to the extent of 7/8th share in respect of the entire property. 4. Defendant no.1 had resisted the suit by filing written statement. She does not dispute the relationship between her and the plaintiff. She also does not dispute that her husband Mohd.Sabir was serving in the State Transport Corporation. She, however, disputes that his salary was Rs.1000/-per month. She denies that consideration for the purchase of the house was paid by Mohd.Sabir. In fact, her contention is that Mohd.Sbir was addicted to gambling and did not have enough money for consideration. She also contends that her father had given gold ornaments to her at the time of her marriage and from that amount, consideration was paid. She submits that she is the real owner of the property. 5. The learned judge of the trial court framed issues on these pleadings and found that deceased Mohd.Sabir had acquired the suit property from out of his own earnings. He found that defendant no.1 was the sole owner of the plot but plaintiff had a share in the structure standing thereon. He also found that the plaintiff had 7/8th share in the moveables i.e. the amount of G.P.F. and Gratuity. Holding so, he partly decreed the suit. Aggrieved by that judgment and decree, defendant no.1 preferred an appeal while the plaintiff preferred a cross-objection. 6. The appellate judge dismissed the appeal preferred by defendant no.1 and allowed the cross-objection and set aside the finding of the trial court that the defendant was the sole owner of the plot or the structure. Being aggrieved by that judgment and decree, this second appeal has been preferred. 7. I have heard the learned counsel for the appellant and the respondents. 8. The second appeal was admitted by Kulkarni,J. on the following substantial question of law. Being aggrieved by that judgment and decree, this second appeal has been preferred. 7. I have heard the learned counsel for the appellant and the respondents. 8. The second appeal was admitted by Kulkarni,J. on the following substantial question of law. The decisions of the Supreme Court of 1989 and 1995 as discussed in the judgments of the Courts below were referred, for the purpose of retrospective or prospective applicability of the Prohibition of Benami Transaction Act but then a substantial question of law that is sought to be raised is that whosoever comes before the Court with a plea that the transaction is a benami transaction has to prove that the benami nature was for the benefit of true owner and on facts it was contended that this aspect has not been properly proved. I have been taken through the judgment of the appellate /Court which on this point seems to have laboured more on the question of prospectivity and the retrospectivity and in para 14 prima facie misapplied the proposition of law reported in 1995(2) M.L.J.639 (Nand Kishore ..vs.. Sushila). It was contended that the case of the daughter who went before the civil court as a plaintiff was that the transaction was a benami and in defence to which the wife/mother had set up a plea that she was the exclusive owner of the immovable property. Having regard to the observations that retrospectivity or otherwise of the law, basically it seems that the person who sets up benami transaction has to prove it. The observations in para 14 seem to cast a burden on the defendant no.1. Having regard to the debatable question regarding benami transaction and nomination making a person entitle in law to receive the amount, the appeal deserves to be admitted for final hearing on these questions raised. Admit. 9. The plaintiff is the daughter of one Mohd.Sabir and defendant no.1 is her real mother. Defendant no.1 remarried after Mohd.Sabir died. The dispute relates to the house property as well as the amount of G.P.F. and Gratuity. Mohd.Sabir died on 15/12/1985. A plot was purchased on 17/10/1979. A house was constructed thereon. Admit. 9. The plaintiff is the daughter of one Mohd.Sabir and defendant no.1 is her real mother. Defendant no.1 remarried after Mohd.Sabir died. The dispute relates to the house property as well as the amount of G.P.F. and Gratuity. Mohd.Sabir died on 15/12/1985. A plot was purchased on 17/10/1979. A house was constructed thereon. It is the case of the plaintiff that Mohd.Sabir had purchased the plot ostensibly in the name of his wife – defendant no.1 since he had an apprehension that his brother, who had strained relations with him, may lay claim on the property. It is, therefore, obvious that plaintiff comes out with a case of Benami transaction. She contends that her father was in service in State Transport Corporation and he provided entire consideration for the plot and construction of the house. The defendant no.1's contention, as seen earlier, is that she purchased the plot and constructed the house from the money obtained by sale of ornaments given to her by her father. 10. It is in this background that the controversy needs to be resolved. The appellate court has given findings in favour of the plaintiff that the property was purchased from consideration provided by Mohd.Sabir. In this regard, one thing that needs to be seen before dwelling on this controversy as to what is the effect of the Benami Transaction (Prohibition) Act, 1988. In the instant case, the suit came to be filed in the year 1986 i.e. much before coming into force of the 1988 Act. The Supreme Court has held in cases reported in 1995 Mh.L.J.(1), Pg.544 (R.Rajagopal Reddy ..vs.. Padmini) and 1995(2) Mh.L.J. 639 (Nand Kishore Mehra ..vs.. Sushila Mehra), that Act is not retrospective in operation. With these decisions, it is clear that filing of the suit for declaration that transaction was Benami is not prohibited. Since the suit was filed before coming into force of the Act and the Act is not held to be retrospective, the suit was quite maintenable. 11. This takes me to the main question as to whether the defendant is ostensible owner and deceased Mohd.Sabir was the real owner. Before discussing the evidence, following observations of the Supreme Court reported in AIR 1980 SC 1040 (Gapadibai ..vs. The State of Madhya Pradesh) need to be borne in mind. The Supreme Court observed as follows 3. 11. This takes me to the main question as to whether the defendant is ostensible owner and deceased Mohd.Sabir was the real owner. Before discussing the evidence, following observations of the Supreme Court reported in AIR 1980 SC 1040 (Gapadibai ..vs. The State of Madhya Pradesh) need to be borne in mind. The Supreme Court observed as follows 3. It was suggested by the State that plaintiff was really a benamidar for Defendant no.5. Apart from the fact that there was no such plea taken by the State, no issue on this point was suggested by it before the trial court. In order to prove the benami nature of the transaction the State could have led evidence to show (i) that defendant no.5 paid the consideration, (2) that he had the custody of the sale-deed, (3) that he was in possession of the property and (4) the motive for the transaction. None of these factors has been proved by the State. The High Court appears to have misplaced the onus on the plaintiff to prove that she was the real owner of the house in question instead of finding whether or not. Defendant no.5 had any title to it. The evidence of PWs.1,2,3 and 6 clearly provided that the house was purchased by the plaintiff. The trial court believed the evidence of these witnesses which was supported by the documents including Exhibits P 2 and P 4 as also a revenue receipt. The High Court made no serious attempt to examine the intrinsic merits of the testimony of these witnesses. Even if the evidence of these witnesses is excluded from consideration, the registered sale-deed duly executed was sufficient to prove the title of plaintiff in respect of the house in absence of any plea of benami or evidence by the State to show that defendant no.5 was the real purchaser. For these reasons we find ourselves unable to agree with the decision of the High Court and hold that in dismissing the plaintiff's case it has committed an error of law. The appeal is allowed, the judgment and decree of the High Court are set aside and the plaintiff's suit stands decreed. The appellant will be entitled to her costs throughout. Similar is the ratio in case reported in (2007)6 SCC 100 (BinapaniPaul ..vs.. Pratima Ghosh and others). The above factors need to be taken into consideration. The appeal is allowed, the judgment and decree of the High Court are set aside and the plaintiff's suit stands decreed. The appellant will be entitled to her costs throughout. Similar is the ratio in case reported in (2007)6 SCC 100 (BinapaniPaul ..vs.. Pratima Ghosh and others). The above factors need to be taken into consideration. For deciding the question, the burden of proof apparently must lie on plaintiff, since she alleges that defendant is the ostensible owner while deceased was the real. 12. Shri Masood Shareef, leaned counsel for the respondent/plaintiff, submitted that in second appeal this court cannot lightly interfere with the findings of the appellate court and particularly if there are concurrent findings. He relied on a decision of the Supreme court in AIR 1999 SC 2213 (Kondiba Dagadu Kadam .vs.. Savitribai Sopan Gujar and ors.). The Supreme Court observes as follows - “It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so. In a case where from a given set of circumstances two inferences are possible, one drawn by the lower appellate court is binding on the High Court in second appeal. Adopting any other approach is not permissible. The High Court cannot substitute is opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex court, or was based upon inadmissible evidence or arrived at without evidence. It is thus obvious that the High Court cannot substitute its own opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the first appellate court were contrary to the settled law or based on inadmissible evidence or arrived at without evidence. It is thus obvious that the High Court cannot substitute its own opinion for the opinion of the first appellate court unless it is found that the conclusions drawn by the first appellate court were contrary to the settled law or based on inadmissible evidence or arrived at without evidence. Bearing in mind the above discussion, the question in appeal has to be dealt with. 13. Now, the plaintiff comes out with a case that her father was in service of State Transport Corporation and had enough source of money to purchase the house. It is also her case that house was purchased in the name of defendant no.1 – wife since Mohd.Sabir had an apprehension that his brothers may lay claim in the suit house. Thus, the plaintiff in fact pleads about source of money and motive. These two factors alone assume importance in this matter. The court would also be required to look into the custody of the sale-deed. 14. Shri Shabbir Hussain, learned counsel for the appellant, contended that though burden of proof lies on the plaintiff alone, she has not entered in the witness box. He submits that Power of Attorney entered into witness box and he could not have personal knowledge as to who provided the consideration. There is no doubt that the power of attorney (PW1) Mohd.Ali did not have and cannot have personal knowledge of this transaction. The sale-deed is dated 17/10/1979 and PW 1 Mohd.Ali admits that he went to the defendant's house for the first time in 1984. His evidence, therefore, has to be totally ignored. Further, he says that he was deposing on information supplied by the plaintiff. His evidence would, therefore, be hear-say, which is inadmissible. In view of this, I need not dilate more on the decision reported in 2005(1) Mh.L.J.1170 (Janki Vashdeo ..vs.. Indusind Bank Ltd.). Although the evidence of Mohd.Ali, who is a Power of attorney and does not have personal knowledge is ignored, it is not necessary that the plaintiff's case can be thrown away. From the defendant's evidence also the plaintiff has a right to show that the case as pleaded by her has been amply proved. Shri Shabbir Hussain, learned counsel for the appellant, had contended that the plaintiff avoided to enter witness box and therefore an adverse inference should be drawn. From the defendant's evidence also the plaintiff has a right to show that the case as pleaded by her has been amply proved. Shri Shabbir Hussain, learned counsel for the appellant, had contended that the plaintiff avoided to enter witness box and therefore an adverse inference should be drawn. In the instant case, such an adverse inference cannot be drawn, as, to my mind, it appears that plaintiff had not attained the age of understanding all these things. The age of plaintiff in the plaint instituted in 1986 is shown to be 20. Obviously, in 1977 she was only 12 to 14 years of age when the transaction took place. She could not state about the source of income and who paid it looking to her age then. 15. The undisputed fact is that Mohd.Sabir was in employment of State Transport Corporation as a driver. The plaintiff alleges that his salary was Rs.1000/-per month. DW 1 Zarinabee-his wife feigns ignorance about the salary of defendant. Although there is no exact evidence available with regard to the amount of salary, one can take judicial notice of the same. The driver working in the State Transport Corporation besides salary also gets overtime wages and other allowances. Although in those days, the salary may not be Rs.1000/-, but it could be around Rs.750/-per month. It appears from the evidence of DW 1 Zarinabee that the deceased had substantial savings. It is in her evidence that deceased had spent Rs.40,000/-for marriage of the plaintiff and had Rs.40,000/-in G.P.F. and gratuity also. Considering the fact that he had saved amount of Rs.80,000/-in those days, there is no difficulty in holding that he had a good source of income and did possess money. This conclusion has to be drawn because of the fact that DW 1 Zarinabee i.e. defendant no.1 feigns complete ignorance about the income, for the reasons best known to her and even though she was wife of the deceased and was living with him. In fact, she has to do so, since without that, she cannot support her own case. The fact that she feigns ignorance about it clearly indicates that it must be even substantial in those days. Hence, she had no reason to state before the court that she does not know the salary earned by her husband. The defendant no.1 contends that Mohd.Sabir was addicted to gambling. The fact that she feigns ignorance about it clearly indicates that it must be even substantial in those days. Hence, she had no reason to state before the court that she does not know the salary earned by her husband. The defendant no.1 contends that Mohd.Sabir was addicted to gambling. Learned judge of the trial court has rightly rejected the plea and evidence of defendant considering the fact that he had substantial savings and had spent Rs.40,000/- for the marriage. 16. Let us turn to the pleading and evidence of defendant no.1 with regard to the source of consideration. The defendant in her specific pleadings avers that she was working as a maidservant. She also alleges that she was having gold ornaments which her parents gave her at the time of marriage and out of it she paid Rs.2500/-towards consideration. The evidence of defendant no.1 is, however, not at all according to her pleadings. We have seen that she specifically alleges that she got gold ornaments at the time of marriage, however, she states on oath in cross-examination that she got five tolas of gold 10 years prior to her deposition in the court. She also states that she was married to Mohd.Sabir 30 years before her deposition in the court. In examination-in-chief she says that 2 years prior to his death her father gave her ornaments. The evidence is apparently contrary to the pleadings and has to be ignored. The fact that defendant no.1 tenders evidence which is contrary to her pleadings suggests that she is telling lies and has made a totally false claim. Although she does not plead as to wherefrom she brought money for construction of house after purchase of the plot, she goes on to tell on oath how the house was built and who provided money. She tells of her brother having provided money for construction of house of wooden planks. She also states that again her brother had paid Rs.3000/-to her for permanent construction. There is no pleading that for construction of the house her brother paid her anything. All this evidence without pleading, needs to be rejected. The courts below have rightly not relied on that evidence. In cross-examination, she otherwise admits that she does not remember the year in which said amount was paid. She has not examined her brother to prove the fact of payment to her. All this evidence without pleading, needs to be rejected. The courts below have rightly not relied on that evidence. In cross-examination, she otherwise admits that she does not remember the year in which said amount was paid. She has not examined her brother to prove the fact of payment to her. In the circumstances, the theory of the defendant having any source of income or consideration flowing from her has to be negatived. 17. The next important aspect, which is in favour of plaintiff is that there was an agreement of sale prior to the sale-deed. This agreement had taken place on 30/12/1977. It is at Exh.46. This agreement of sale was proved by PW 2 Mirza Matin Beig. He states that there was an agreement of sale between Mohd.Sabir and Abdul Rahim and he has signed the document as attesting witness. He also states that Mohd.Sabir had paid sum of Rs.2500/-to Abdul Rahim on the date of agreement itself. This witness is a Petition Writer. He denies that he is related to PW 1 Mohd.Ali Bande Ali. Although he says in cross-examination that he had not seen the suit house and as to when Mohd.Sabir died, it cannot be said that he is not the trustworthy witness. There is no reason for him to go out of the way and depose against the defendant. It appears that the stamp paper was also purchased by the vendor. There is no reason for the vendor to prepare such a false document. Shri Shabbir Hussain, learned counsel for the appellant, contended that in the sale-deed there is no reference to the agreement of sale and therefore, it has to be held that it is a fabricated document. Such an inference cannot be drawn for the reason that the agreement was in the name of Mohd.Sabir while sale-deed was in the name of his wife. May be due to this fact a reference was not made in the sale-deed or the agreement of sale. The important thing is that the sale-deed recites that the consideration is already received at home. This suggests that same consideration was taken into account. Had the defendant paid the consideration after sale of ornaments etc., there would have been mention that the consideration is being paid at the time of the sale-deed. The important thing is that the sale-deed recites that the consideration is already received at home. This suggests that same consideration was taken into account. Had the defendant paid the consideration after sale of ornaments etc., there would have been mention that the consideration is being paid at the time of the sale-deed. The fact that it makes a reference to payment made earlier, it must be held to have been paid at the time of agreement of sale. The next important thing is that the stamp paper for this sale-deed is purchased by Mohd.Sabir. If the defendant was purchasing the house from her own funds, there was no difficulty for her to go to Sub-registrar's office just as she came before the civil court to depose. This suggests that Mohd.Sabir was the person who provided consideration for the purchase of the plot. Mohd.Sabir had enough of money and therefore, it can safely be said that he must have spent for construction of the house. The defendant has been unable to tell the day, date and time of payment of money to her by her brother. This further suggests that in fact her brother did not pay any amount to her nor did she have any money from out of sale, of the gold ornaments. The courts below have rightly appreciated the evidence. 18. Plaintiff has contended that Mohd.Sabir purchased the property in the name of defendant-his wife, as he had apprehension that his brother may lay claim to the suit property. There was, therefore, certainly a motive to purchase the property in the name of wife. Although motive is a thing which is required to be looked into, I find that in cases where husband purchases the property in the name of wife, there need not always be some motive. It could be out of love and affection too. The custody of the original sale-deed is with the plaintiff as she has produced the original as well as the xerox copies. All this evidence and circumstances do show that the defendant was the ostensible owner and Mohd.Sabir was the real owner. The substantial question of law is answered accordingly. There is no substance in the appeal. It is dismissed with costs.