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TMI Blog2021 (12) TMI 1162X X X X Extracts X X X X X X X X Extracts X X X X ..... ave been made, we will have to consider its interpretation. Further, the real intention whether was brought on record is also a question. Another fact to be appreciated on the basis of the same is, if the property was in the name of mother, then whether defendant could have raised any loan from any institution/bank/ Patsanstha is also required to be considered. On this point, in fact, the Courts below have considered that the said construction would have been made by the defendant as per his choice and will. It does not deprive the plaintiff of his right. The documents on record were considered by both the Courts below and it was observed that those documents appear to be fabricated. The defendant was the Secretary of the Patpedhi, from whom it was shown that he had raised loan. Therefore, as regards factual aspect is concerned, it is not giving any rise to a substantial question of law, however, the nature of the property and whether the defendant could have raised defence of exclusive ownership, though the property stood in the name of his mother, deserve to be resolved/adjudicated in this case. Hence, the second appeal stands admitted. Following are the substantial questions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sister. Suit property was purchased in the name of grandmother of the plaintiff by grandfather, however, since plaintiff s father was serving in Police Department at different place and the parents of the plaintiff are no more; this situation was encashed by the defendant and in collusion with revenue authority, he got the heirship certificate contending that he is the sole heir of Kasturabai - grandmother. Defendant himself was working in Collector office. With this story, the plaintiff had prayed for partition and separate possession. However, the defendant had come with the defence that he is the exclusive owner of the suit property. He denied that it was purchased by his father in the name of his mother. He contended that the income of his father was not so that he could purchase a property. In fact, defendant himself was serving in revenue department and was residing adjacent to the suit property in the rented premises. His father-in-law extended financial aid in the year 1982 to purchase the open space of the suit property and then defendant purchased the suit property from one Hanumantrao in the name of his mother, as she was elder in the family. His father had not given a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hali and Sankara Institute of Philosophy and Culture Vs. Kishori Lal Goenka, [1996 (7) SCC 55], which was the three Judge Bench decision of the Hon ble Supreme Court, wherein it has been held :- 5. The Act prohibits entering into benami transactions and says that no person shall enter into any benami transaction and further provides that whoever enters into such a transaction, shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. Section 4 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 so held or against any other person by or on behalf of a person claiming to be the real owner of such property. Similarly, 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. Section 5 deals with the question of property held benami being liable to acquisition and Section 6 lays down that nothing in the Act shall affect the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, after her demise, both are entitled to inherit the same. He relied on the decision in Mangathai Ammal (Died) Through LRs and others Vs. Rajeswari and others, [2019 SCC Online SC 717], wherein it has been held, while considering a particular transaction as benami, intention of the person who attributed the purchase money is determinative of the nature of transaction. Intention of the person, who contributed the purchase money, has to be decided on the basis of the surrounding circumstances; the relationship of the parties; the motives governing their action in bringing about the transaction and their subsequent conduct etc. 9. At the outset, it is to be noted that as regards the point as to whether the transaction in question was a Benami and whether the defence of the defendant that in fact he is the exclusive owner and not his mother, though the property was standing in her name, could have been allowed to be raised in view of Section 4 of Benami Transactions (Prohibition) Act, 1988, was not considered by both the Courts below. But, definitely, that point which is the law point, which can be framed here, will have to be gone into because if the defendant could not have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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