1. This appeal arises out of a suit for a declaration that a sale-deed executed in favour of Ram Harakh in the year 1913 was a benami transaction and that the plaintiff was the real purchaser and is owner in possession of the property. The plaintiff is Ram Harakh's father and the sale was executed when Ram Harakh was a boy at school. The answering defendants have purchased the property in execution of a decree against Ram Harakh. Both the Courts below have decreed the suit. They find that the plaintiff supplied the money and was the real purchaser. Part of the sale consideration consisted of the satisfaction of a mortgage deed in favour of the plaintiff and the remainder was provided from the plaintiff's separate earnings, the plaintiff being in service at Calcutta. The property has, therefore, been held to be the self-acquired property of plaintiff in which Ram Harakh had no right.
2. The defendants appear to have been shifting their ground from time to time. In the Court below they contended that the plaintiff had thrown the property into the common stock and so it had become joint family property. The learned Judge pointed out that this was a new plea taken in appeal, and further held on the merits that it could not be supported.
3. In this Court it has been argued that because the plaintiff and his son formed the joint family and there was some small nucleus of family property consisting of the fixed rate holding, therefore the earnings of the plaintiff with which the property was partly purchased must be deemed to have been joint family funds and, therefore, the property acquired by them must be deemed to be joint family property. This is a mixed question of law and fact, and the appellants are not entitled to ask the Court to decide the appeal in their favour on a plea which they did not rely on in either of the Courts below. The only other plea urged was that the Courts below held the transaction to be benami on the ground that the funds were supplied by the plaintiff, and they rely on Ram Narain v. Muhammad Hadi  26 Cal. 227 as showing that this is not sufficient. In that case their Lordships held that though the source of the purchase money was an important criterion it was not conclusive where there were other circumstances showing that the purchaser intended the property to belong to the person in whose favour the sale-deed was executed. No such circumstances are found to exist in this case, and the finding that the transaction was benami is not open to challenge. The appeal, therefore, fails and I dismiss it. As the whole trouble has arisen out of a benami transaction by the plaintiff, I allow no costs of this appeal.