Venkatasubba Rao, J.
1. The plaintiff is the wife of one Narayana Rao, against whom the defendant obtained a decree. In execution proceedings, the plaintiff intervened with a claim alleging that the property attached was not her husband's but her absolute property. The claim having been dismissed, the plaintiff has filed this regular suit, which the District Munsif has dismissed on the ground that the sale in favour of the plaintiff was benami for her husband. On appeal the Subordinate Judge has reversed the finding of the District Munsif. He in effect has held that the plaintiff is not merely the ostensible but also the real owner of the property but unfortunately he has thrown the onus wrongly upon the defendant, and this is what he observes on the point:
The burden was on the defendant to establish that Ex. A which stands in plaintiff's name was benami for her husband, and, in my opinion, it was not discharged at all.
2. Ordinarily it will be for the party who sets up that a particular transaction is not real but benami to make, out affirmatively the case put forward by him. But it has been pointed out in the decisions to which my attention has been drawn that, after the dismissal of a claim, where a regular suit is instituted to set aside the order made on the claim-petition, it is for the plaintiff in that suit i.e., the defeated claimant to establish that he is the owner of the property, and that it is not sufficient for him to merely rely upon the deed which shows his ostensible title see Jamahar Kumari Bibi v. Askaram Boid 30 Ind. Cas. 855 : 22 C.L.J. 27 Govind Atmaram v. Santai 12 B.P 270 : 6 Ind. Dec. (N.S.) 665 and Nannhi Jan v. Bhwi 30 A.p 321 : 5 A.L.J. 601 : A.W.N. (1908) 125. It is quite possible that, if the Subordinate Judge had considered the evidence without applying the rule of evidence which he has, he might still have come to the same conclusion after consideration of the probabilities and the documentary and oral evidence in the case. He, however, having considered the evidence from a wrong standpoint, his decision must be reversed. I accordingly set aside the decision of the lower Appellate Court and remand the appeal for fresh disposal.
3. In the circumstances I direct that the costs of this appeal do abide the result of the suit. Refund of the Court-fee paid for this appeal is ordered.