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Rajagopal and Ors. Vs. Valliyammal and Ors. - (High Court of Kerala) (26 Nov 2018)

Burden to prove that a particular sale is benami lies on person who alleges the transaction to be a benami

MANU/KE/3367/2018

Family

The sum and substance of the case of the husband is that the petition schedule property was purchased by him in the name of the wife and that he constructed a multi-storied building in that property by using his own funds and that he is the real owner of the property and the building therein. Did the husband succeed in establishing that purchase of the petition schedule property in the name of the wife is a benami transaction. If so, did he succeed in rebutting the presumption envisaged under Section 3(2) of the Benami Transactions (Prohibition) Act, 1988.

There is a presumption in law that, the person who purchases the property is the owner of the same. This presumption can be displaced by successfully pleading and proving that the document was taken benami in the name of another person for some reason, and the person whose name appears in the document is not the real owner, but only a benami. Heavy burden lies on the person who pleads that the recorded owner is a benami holder. It is well established that burden of proving that a particular sale is benami lies on the person who alleges the transaction to be a benami. The essence of a benami transaction is the intention of the party or parties concerned and often, such intention is shrouded in a thick veil which cannot be easily pierced through.

The question regarding a particular sale is benami or not, is largely based on fact. For determining this question, no absolute test, uniformly applicable in all situations, can be laid down. But, in weighing the probabilities and for 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 the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale.

In the instant case, the husband has been able to prove the circumstances under which and the reasons for purchasing the property in the name of the wife. He has also been able to prove, on the basis of preponderance of probabilities, that it was he who paid the money for purchasing the property. The wife could not prove that, her parents had paid the money for purchasing the property in her name. The husband could succeed in proving that the purchase of the petition schedule property in the name of the wife was a benami transaction.

There was no prohibition for a husband to enter into a benami transaction by purchasing property in the name of his wife or unmarried daughter. But, then, the presumption is that the property was purchased by him for the benefit of the wife or the unmarried daughter. He would be able to get relief, in a suit claiming title to such property, only if he succeeds in rebutting the presumption and proving that the property concerned was purchased not for the benefit of the wife.

Construction of a multi-storied building by the husband in the property is a circumstance which indicates that, he purchased the property not for the benefit of the wife but it was for his own benefit. The husband had also given possession of two floors of the building to the second respondent on licence arrangement. This is another circumstance indicating beneficial utilization of the property by the husband. On the other hand, there is no evidence to prove that, the wife had used the property and the building therein for her own benefit. Her residence in the building in the property is only in her capacity as the wife. In these circumstances, the husband could rebut the presumption under Section 3(2) of the Act. The Family Court was not justified in declining to grant a decree of declaration in favour of the husband regarding the title over the property. The Appellant is granted a decree of declaration that he is the owner of the petition schedule property and the building therein.

Tags : TITLE   DECLARATION   GRANT  

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