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"Be that as it may, so long as the documents stand in the name of his wife, he could not dispose of the property. It is true that it was open to him to have obtained the declaration that he was the beneficial owner thereof notwithstanding the fact that his wife was the ostensible owner. But, so long as the husband does not have any recourse to these proceedings for obtaining such a relief, he could not have been in a position to dispose of the property standing in the name of the third person as his own. This proposition was not contested on behalf of the Central Board of Revenue."

A benamidar is an ostensible owner and if a person purchases from a benamidar, the real owner cannot recover unless he shows that the purchaser had actual or constructive notice of the real title. But from this it does not follow that the benamidar has real title to the property, he is merely an ostensible owner thereof.

The law is succinctly stated by Mayne in his Treatise on Hindu Law, 11th edn., at p. 953, in the following terms:

"A benami transaction is one where one buys property in the name of another or gratuitously transfers his property to another, without indicating an intention to benefit the other. The benamidar, therefore, has no beneficial interest in the property or business that stands in his name; he represents in fact the real owner and so far as their relative legal position is concerned, he is a mere trustee for him. In other words, a benami purchase or conveyance leads to a resulting trust in India, just as a purchase or transfer under similar circumstances leads to a resulting trust in England. The general rule and principle of the Indian law as to resulting trusts differs but little if at all, from the general rule of English law upon the same subject."

(See also : Shree Meenakshi Mills Ltd. v. C.I.T. (1957) 31 ITR 28 per Venkatarama Ayyar J., and Thakur Bhim Singh v. Thakur Kan Singh [1980] 3 SCC 72. Per Venkataramiah J.] In the light of these settled principles the liability to pay estate duty under s. 5 (1) of the Act arises upon the death of the real owner and not of the benamidar, who is merely an ostensible owner. The test lies in whether upon the death of the benamidar, there would be incidence of liability to estate duty. If the view of the High Court were to be accepted, the estate left by the deceased would escape the duty altogether. We do not see how s. 6 of the Act comes into play at all in this case.