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The above indicia are not exhaustive and their efficacy varies according to the facts of each case. Nevertheless no. 1, viz. the source whence The purchase money came, is by far the most important test for determining whether the sale standing in the name of one person, is in ,reality for the benefit of another.

The question in the case is to be considered in the light of the above indicia. As regards circumstance (1), the High Court noted Abdul Karim (Defendant No.1) who was the best informed person to depose to the source from which the purchase money was derived did not when examined as D.W.7, specifically testify that the money had been paid 'from his personal fund. In cross-examination, he admitted that he had only two kathas of ancestral land with him; he had a tailoring. shop in which the entire capital invested was to the tune of Rs. 1,000/-or Rs. 1,500/- only; he did not keep any accounts; he had six members of his family; his rental income was Rs. 12/- per month only. The High Court was thus right in holding that these facts admitted by Abdul Karim (Defendant No.1) presented a very "gloomy picture of Abdul Karim's financial condition and resources" and that he was not in a position to invest Rs. 4300/- for purchase of the house in ,question. The High Court after a survey of the other evidence on the .record further came to the conclusion that Mst. Hakimunnissa had means of her own and her first husband and her son Moktadi by the first husband were well to do person. Moktadi had a big, shop of ,tobacco, scent oil, zarda etc. Mr. Desai, learned Counsel for the appellant assails this finding of the High Court on the ground that it was based on the oral evidence of Abdul Rauf (D.W. 9) and Mohd. Shafiullah (D.W. 10), who according to their own showing, had scant knowledge, about the affairs of Abdul Karim, Mst. Hakimunnissa or Bibi Hazra. It was stressed that the trial court had rightly discarded the useless evidence of these witnesses. It is true that the evidence of these two witnesses suffered from infirmities; but the finding of the High Court on this point is not based on their evidence alone. The High Court also took into, account the evidence of Bibi Hazara (D.W.13) who stated that she had received Rs. 1000/- or Rs. 1500/- as her share of the cash on the death of her mother. She was in a position to know about the financial condition of her father and mother. According to her, Abdul Karim, had given up tailoring long ago and he was running only a petty shop of tobacco, tikia, hardly earning Re. 1/- or Rs. 2/- per day. Then there was the documentary evidence furnished by the sale-deed (C-1/11) dated 1-4-42, executed by Mst. Hakimunnissa whereby she sold a house to Chaudhary Kishan Chand. It was recited in this deed that in order to purchase the house in dispute she (Hakimunnissa) had to incur certain debts for payment of a part of toe consideration for the sale-deed (Exh.D/1). The sale in ques- tion was effected about 11 months earlier on May 10,1941. This recital being ante litem motam, was a valuable piece of evidence to. show that the consideration of the sale was paid by Mst. Hakimunnissa, the apparent purchaser of the house, from her own resources.

It is common ground that the house in question, at one time, belonged to Abdul Motlib and he had rented it out to Abdul Karim, the original owner, Motlib, had mortgaged a part of this house to one Fakira Lal Sahu on 28-9-1947. Sahu filed a money suit against four persons (1) Abdul Karim; (2) Mst. Hakimunnissa (3) Bibi Khatoon and (4) Sh. Motlib inter-alia for the recovery of rent with interest for the period, 21-3- 1941 to 20-3-1942. The suit was partly decreed against Abdul Karim alone and was dismissed as against Hakimunnissa by the Munsiff on 1-3-1943 vide Exh.1-II. Abdul Karim's appeal against that decree was dismissed and the decree of the trial court with some modification, was maintained. Sahu then took out execution of his decree against the judgment-debtor, Abdul Karim. Mst. Hakimunnissa filed an application under s.47 (under 0.21, r.57,) of the Code of Civil Procedure claiming that the attached house in plot 216 was her exclusive property and her husband had no right or interest in it. Her application was dismissed by the Munsiff on 22-11-1943 with the finding that Mst. Hakimunnissa was only a benamidar of the judgment debtor, Abdul Karim. Her appeal against that order was disallowed by the Appellate Court on 21-2-1944 vide Ex. 10. Mr. Desai very fairly conceded that this order, dated 22-11- 1943, did not operate as res judicata because the Munsiff was not competent to decide the subsequent suit from which the present appeal has arisen; but he urged that this order had become final because no suit under Order 21, Rule 103 of the Code of Civil Procedure was filed by Mst. Hakimunnissa to establish her right, and, as such, this order, even if not conclusive, was a very efficacious and presumptive proof of the fact that Mst. Hakimunnissa was merely a benamidar in respect of the house in dispute.