BENAMI PURCHASE OF PROPERTY IN WIFES NAME AND ITS CONSEQUENCE UNDER LAW 2008 SC

Binapani Paul vs Pratima Ghosh & Ors AIR 2008 SC 543, Acceptance of acknowledgement of title comes in various forms. It may be before the transaction is entered into and may be subsequent thereto. The court has to gather the intention of the concerned parties on the basis of the circumstances surrounding the transaction and not from the conduct of the parties only at a subsequent stage. 1.1. The father had no apparent motive for entering into a benami transaction. The eagerness of the father to purchase the suit property can be seen from the evidences on record. If the father intended to have a benami transaction, he would not get his wife described as daughter of somebody instead of his own wife. Such unusual step on the part of the father leads to the conclusion that he intended to purchase the suit property for the benefit of his wife. 1.2. The execution of a power of attorney may not be of importance but then the backdrop of events and the manner in which the power of attorney was drafted as well as the very fact that the father himself became an attesting witness thereto plays a significant role. If the father intended to enter into a benami transaction, his intention would have been clear and unambiguous or the same would have been explicit from the surrounding circumstances which were not. 1.3. Acceptance of acknowledgment of title may be before the transaction is entered into and may be subsequent thereto. The Court has to gather the intention of the concerned parties on the basis of the circumstances surrounding the transaction and not from the conduct of the parties only at a subsequent stage. Whether the father intended to enter into a benami transaction in the name of his wife, either surrounding circumstances leading to the inference that he had no such intention must be gathered from the totality of the circumstances both preceding and subsequent to the transaction in question or if the intention of the person providing for the fund for purchasing the property has a major role to play, how it was given also assumes some significance. On evidence on record, the suit property was mutated in her name. When a mutation takes place with the knowledge of the husband, although not conclusive, would provide for a link in the chain. 1.4. The true character of a transaction is governed by the intention of the person who contributed the purchase money and the question as to what his intention was has to be decided by four factors viz. surrounding circumstances, relationship of the parties, motives governing their action in bringing about the transaction and their subsequent conduct. All he four factors have to be considered cumulatively. The primary motive of the transaction was security for the wife and seven minor daughters as they were not protected by the law as then prevailing. The legal position obtaining at the relevant time may be considered to be a relevant factor for proving peculiar circumstances existing and the conduct of the father is demonstrated by his having signed the registered power of attorney. 1.4. The fact that the son allowed the order of mutation to attain finality would be a pointer to suggest that despite such bitter relationship between the parties, he accepted the same more so, when mutation of one's name confers upon him a variety of rights and obligations. Respondent no. 1 did not examine herself as a witness. An adverse inference should be drawn against her. If ouster is to be pleaded, the title has to be acknowledged. Once such a plea is taken, irrespective of the fact that as to whether any other plea is raised or not, conduct of the parties would be material. If, therefore, plea of ouster is not established, a fortiori the title of other co-sharers must be held to have been accepted. The son could not have turned around and challenged the title of the appellant and other respondents. 1.5. The suit property was purchased before the Hindu Women's Right to Property Act, 1937 came into force. Hence the Act has no application to the present case. 1.6. The Dayabagha School of Hindu law does not prohibit gift of immoveable property in favour of his wife by her husband. The same has nothing to do with the benami transaction of the property and to determine the nature of the transaction. Burden of proof as regards the benami nature of transaction was also on the respondent. Court in Valliammal (D) By LRS. v. Subramaniam and Others [(2004) 7 SCC 233] wherein a Division Bench of this Court held: "13. This Court in a number of judgments has held that 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. 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.