R.M. Sahai, J.
1. This petition is directed against the orders of the Deputy Director Consolidation and the Settlement Officer Consolidation rejecting the claim of the petitioner under Section 12 of the U. P. Consolidation of Holdings Act for mutating their names in the revenue records on the basis of a sale deed dated 24th May 1967 executed by Smt. Parmeshwari Devi opposite party No, 3 in favour of Smt. Janak Devi their mother on the ground that it was a Benami transaction.
2. In pursuance of an agreement of sale dated 6th May 1967 permission was obtained by the Settlement Officer Consolidation as required under Section 5 (c) of the Act and sale deed was registered. The vendee filed an application for mutation which was objected by Harkesh opposite party No. 4, since deceased. It was alleged that he was in possession and Parmeshwari Devi was not entitled to transfer this land and in any case the sale deed was obtained by fraud and was hit by Section 168-A of U. P. Zamindari Abolition and Land Reforms Act. Before Consolidation Officer Smt. Parmeshwari Devi appeared and stated on oath that she was the Bhumidhar and that she executed a sale deed and handed over possession to Smt. Janki Devi as such her name be expunged from the records. In other words she admitted the claim of the vendee. But due to the objection filed by Harkesh, the Assistant Consolidation Officer treating it to be disputed case referred the matter to the Consolidation Officer. Before the Consolidation Officer Smt. Janki Devi stated in her deposition that she paid rupees 2000/- as advance and Rs. 4000/- before the sub Registrar. In cross-examination she stated that she took Rs. 6000/- from Smt. Parmeshwari Devi, This statement was made by Smt. Janki Devi in April 1968 and she died in June 1968. On 9th March 1969 Smt. Parmeshwari Devi, obviously as a result of the statement of Smt. Janki Devi in the cross-examination, filed an objection claiming that the sale deed executed by her was Benami. In her deposition she stated that she lent Rs. 6000/- to Smt. Janki Devi and she has been reminding her for its payment during her life tune and after her death she has been requesting the petitioner to repay it. It was also admitted by her that the knowledge that she had to get rupees 6000/- from Smt. Janki Devi came to her for the first time after she was told about it by Harkesh on the strength of statement made by Smt Janki Devi before the Consolidation Officer.
3. The question on these facts is whether the finding recorded by the Deputy Director that the transaction was Benami is sustainable in law. Relying on Shree Meenakshi Mills v. Commr. of Income-tax (AIR 1957 SC 49) it has been argued by the learned counsel for Smt. Parmeshwari Devi that the finding on the question of Benami is a finding of fact and is not liable to interference in writ jurisdiction. Learned counsel for the petitioner did not challenge this proposition but argued that the error committed by the Deputy Director was that he recorded the finding without considering the basic requirements of Benami transaction; and, on the statement of Smt. Parmeshwari Devi, it was a transaction of borrowing and does not satisfy the test of Benami transaction. In support of his argument he has relied on Jaydayal Poddar v. Bibi Hazra (AIR 1974 SC 171).
4. In Poddar's case it was held that for determining a question whether a particular sale is Benami or not no absolute formulae or acid test uniformly applicable in all situation can be laid down yet in weighing the probabilities and gathering the relevant indicia the courts are usually guided by these circumstances:
1. The source from which the purchase money came.
2. The nature and possession of the property after purchase.
3. Motive if any for giving the transaction a Benami colour.
4. Position of the parties and the relationship if any, between the claimant and the alleged Benamidar.
5. Custody of the title deeds after the sale and
6. The conduct of the parties concerned in dealing with the property after sale,
5. The only circumstance which weighed with the appellate and the revisional authorities was the explanation given by Smt. Parmeshwari Devi that she was not on good terms with Harkesh and to save the land from him she transferred it in favour of Smt. Janki Devi, who was very close to her. They also drew support from the statement of Smt. Janki Devi that she took the money from Smt. Parmeshwari Devi. It may be that these two circumstances be sufficient to warrant a finding that the transaction was Benami but is it clear that both the consolidation authorities have recorded the finding without applying their mind on the primary facts which go to constitute a Banami Transaction. A sale deed executed before the Sub-Registrar carries a presumption of genuineness and the burden to prove that it was Benami is on the person who alleges it. The consolidation authorities appear to have picked up a sentence from the statement in support of their conclusion but what they should have done is to apply their mind to the principles which are germane to decide whether a transaction apparently a sale is Benami. As they have failed to do so it is expedient to direct the Deputy Director to decide the revision afresh.
6. In the result this petition succeeds and is allowed. The order passed by the Deputy Director is quashed. He is directed to decide the revision afresh in accordance with law. The parties shall bear their own costs.