Document Fragment View

Matching Fragments

18. However, the aforesaid judgments are also of an era when benami as a plea was permitted in the Indian Courts. The Benami Transactions (Prohibition) Act which came into force on 5th September, 1988 changed the said position. Section 4 thereof bars a suit claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person, on behalf of a person claiming to be the real owner thereof. However the said bar, per Section 4(3) does not apply to the person in whose name the property held is a coparcener in a HUF and the property is held for the benefit of coparceners in the family or where the person in whose name the property is held is a trustee or otherwise standing in a fiduciary capacity and who holds the property for the benefit of any other person for
- 32 -
NC: 2025:KHC:18236 whom he is a trustee or for whom he stand in such capacity. However, the said exceptions would not be attracted inasmuch as neither can a Hindu female be a coparcener nor is Kanta Batra said to be standing or stood in law in a fiduciary capacity qua her husband or qua the alleged HUF.
19. The aforesaid Act has been amended with effect from 10th August, 2016 and is now known as Prohibition of Benami Property Transactions Act, 1988. Section 4 of the Amended Act also bars a suit to enforce any right in respect of a property held benami.
- 35 -
NC: 2025:KHC:18236 High Court in Santanu Kumar Das v. Bairagi Charon Das, AIR 1995 Ori. 300. In this judgment it was held that, in case of property purchased in the name of female member of Hindu family there is no presumption that it is a joint family property. He submits that the burden of proving that a particular sale was benami and that the purchaser was not a real owner always rests on the person asserting it to be so and there is no evidence led by the defendants to show that the consideration of sale deed executed in favour of Sharbathi Bai had come from her husband. He also relies on a judgment of Supreme Court in Jayadayal Poddar v. Bibi Hazra, (1974) 1 SCC 3: AIR 1974 SC 171. In this judgment the Supreme Court laid down the tests for examining whether a particular transaction was benami, or not as under:
"It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser or transferee in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test,