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TMI Blog2020 (3) TMI 588X X X X Extracts X X X X X X X X Extracts X X X X ..... of income, i.e., Stridhan in order to arrive at such a conclusion. It is, therefore, rather premature to hold that the suit is not barred by the provision prescribed under Section 4 of the Act, 1988. Question whether a particular sale is a benami or not is largely one of fact and that cannot be decided in absence of evidence and in order to get the exclusive ownership, the Plaintiff has to establish the said fact by way of cogent and reliable evidence that it was acquired from her Stridhan and the alleged transaction does not fall within the ambit of benami transaction defined under Section 2(9) of the Act, 1988 and only after its establishment, it could be held that the suit is not barred under Section 4 (1) of the Act, 1988. However, without considering all these facts, the trial Court in a cursory manner has opined that the suit is not barred by the said provision. The finding of the trial Court, therefore, in so far as the suit cannot be held to be hit or barred by Section 4 of the Act, 1988 in such a pre-matured stage, is liable to be and is hereby set aside. From perusal of the aforesaid provision, it is clear that the Court is vested with the discretion under this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding the maintainability of the suit by moving an application enumerated under Order 7 Rule 11 read with Section 151 of CPC and praying for rejection of the plaint stating therein that the averments as made in the plaint while claiming her exclusive ownership over the suit property by the Plaintiff on the premises that the entire sale consideration was paid by her from her Stridhan and names of her sons have been shown in the alleged sale owing to love and affection is specifically a plea of benami transaction and as such, the suit is barred by the provisions prescribed under Section 4(1) of the Prohibition of Benami Property Transactions Act, 1988 (hereinafter referred to as the 'Act, 1988'). 4. In reply to the aforesaid application, it is stated by the Plaintiff that the alleged transaction does not come within the purview of the benami transaction as it was purchased by her from her known source of income and since the alleged sale was made much prior to the enforcement of the Act, 1988, therefore, the plaint cannot be rejected under Order 7 Rule 11 of CPC. 5. After considering the aforesaid contention of the parties, it has been observed by the trial Court vide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. 10. By virtue of the aforesaid provision, it is evident that neither the claim nor the defence in order to enforce any right in respect of any property held benami against the person in whose name the property is held, could be held to be maintainable on coming into enforcement of the said Act, 1988. The applicability of this provision would come into play only if the transaction alleged to have made is a benami transaction and that is the sine qua non for its applicability. At this juncture, the provision provided under Section 2(9) of the Act, 1988 is required to be seen, where it defines benami transaction as under:- 2. Definitions.- I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not be applicable. It, however, would come into play only if it is established that the alleged transaction falls within the definition of benami transaction, else the suit cannot be held to be barred by the said provision. 12. According to the plaint averments, the Plaintiff is claiming her exclusive ownership over the suit property on the premises that it was acquired by her from her S tridhan, i.e., known source of her income. In order to get the benefit of the aforesaid exceptional clause for claiming her exclusive ownership over the property in question, it is required to be established by the Plaintiff by way of cogent and reliable evidence that it is her self-acquired property purchased by way of her Stridhan and this fact could be determined only at the time of trial and not prior to that. 13. What has been observed by the trial Court by rejecting the application filed under Order 7 Rule 11 of CPC that the suit property appears to have been purchased by the Plaintiff for the benefit of the family members, and therefore, the suit as framed is not barred by virtue of Section 4 of the Act, 1988. The trial Court has, thus, virtually given his finding that the alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 tests, uniformly applicable in all situations, can be laid down; yet 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 tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... title deeds after the sale; and (6) the conduct of the parties concerned in dealing with the property after the sale. (Jaydayal Poddar v. Bibi Hazra (supra), SCC p. 7, para 6 (AIR 1974 SC 171) . 8.3 After considering the aforesaid decision in the recent decision of this Court in the case of P. Leelavathi (AIR 2019 SC 1938) (supra), this Court has again reiterated that to hold that a particular transaction is benami in nature the aforesaid six circumstances can be taken as a guide. 8.4 Applying law laid down by this Court in the aforesaid decisions to the facts of the case on hand and the reasoning given by the Trial Court confirmed by the High Court, it appears that both, the learned Trial Court and the High Court have erred in shifting the burden on the defendants to prove that the sale transactions were not benami transactions. As held hereinabove in fact when the plaintiffs claim, though not specifically pleaded in the plaint, that the Sale Deeds in respect of suit properties, which are in the name of defendant No.1, were benami transactions, the plaintiffs have failed to prove, by adducing cogent evidence, the intention of the Narayanasamy Mudaliar to purchase the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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