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TMI Blog2023 (6) TMI 914X X X X Extracts X X X X X X X X Extracts X X X X ..... Sailendra really intended to enjoy the full benefit of the title in him alone. In the case before us, Sekhar could not bring any evidence even to show what was amount of consideration money and how the consideration money was paid and how the suit property was purchased and even he could not prove who paid the consideration money. He could not produce any document relating to the suit property. Title deed and all documents relating to the suit property were all along in the custody of Lila and Lila all along paid municipal tax and got the suit property mutated in her name and Sekhar could not bring any evidence on record to lead any prudent man to infer that his father had a motive to create benami in name of his mother or Sailendra intended to enjoy the full benefit of the title in him alone. Judgments relied upon by the appellant in spite of having unquestionable value of the proposition laid down therein, shall not come in aid of the appellant in the factual matrix of the case at hand. We are inclined to hold that learned Court below has correctly held that Sekhar has failed to discharge his burden to prove that subject sale transaction is benami transaction and we hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from her stridhan property. She asserted that she got the building plan sanctioned in her own name and then constructed two-storied building on the suit land from her own fund; ii) She further claimed therein that according to legislative fiat incorporated in Section 3 of Benami Transaction (Prohibition) Act, 1988 (hereinafter referred to as the 1988 Act), she became the absolute owner of the suit property and same was duly mutated in her name and deed of conveyance dated 20.1.1970 had never been challenged either by Sekhar or by her husband at any point of time and mere payment of requisite consideration money does not, ipso facto, prove benami transaction; iii) She claimed that Section 8 of Hindu Succession Act, 1955 has got no application in the present lis and she emphatically denied that Sekhar has acquired 1/3rd share in the suit property; iv) She lamented that Sekhar abandoned her in May, 2011 and since his marriage, Sekhar subjected her to mental and physical torture and she used to pass her days taking financial assistance from her daughter, the defendant no.2 and by executing one will, which was registered on 4.9.2011, she bequeathed the suit property in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... To bolster his submission, he placed reliance upon the judgments delivered in cases of Union of India vs- Moksh Builders And Financiers Ltd. Ors. reported in (1977) 1 SCC 60, Pulin Behari Addy vs- Debendra Nath Addy reported in (1981) 1 CHN (CAL) 531, Dr. Prasanta Kumar Das vs- Susanta Kumar Das Ors. reported in (2017) 1 CHN (CAL) 452(DB). 7. In response, Mr. Chatterjee, learned Advocate appearing for the respondents submits that the suit property was purchased in 1970 and Sailendra died in 1999. Sekhar dragged Lila, his mother, aged about 85 years, in Court. Lila deposed in 2016 regarding the suit property which was purchased almost 46 years back. Hence, it is not expected that Lila would preserve all the documents and proofs relating to payment of consideration money and expenses borne for construction of building. He informed the Court that Lila has gifted the suit property in favour of her daughter in 2015 by dint of registered deed of gift and thereafter Lila died in 2019. 8. Mr. Chatterjee further contends that Lila paid taxes to the Corporation and drawing our attention to the evidence of the parties, he contends that Sekhar himself admitted that he did not look ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Section 2(a) of the Act which is a piece of declaratory legislation can have its application irrespective of its date or duration. So, definition of the expression benami transaction can be borrowed from Section 2(a) of the 1988 Act in respect of the transaction held prior to promulgation of the said Act. As defined in Section 2(a) of the Act benami transaction means any transaction in which property is transferred to one person for a consideration paid or provided by any other person. A transaction must, therefore, be benami irrespective of its date or duration. 13. In India, two kinds of benami transactions are generally recognized. Where a person buys a property with his own money but in the name of another person without any intention to benefit such other person, the transaction is called benami. In that case, the transferee holds the property for the benefit of the person who has contributed the purchase money, and he is the real owner. The second case which is loosely termed as a benami transaction is a case where a person who is the owner of the property executes a conveyance in favour of another without the intention of transferring the title to the property ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i or establish circumstances unerringly and reasonably raising an inference of that 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 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 test, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ved by the party who asserts benami. In other words, even if it is proved that Sailendra paid the consideration money, the plaintiff must further prove that Sailendra really intended to enjoy the full benefit of the title in him alone. 23. In the case before us, Sekhar could not bring any evidence even to show what was amount of consideration money and how the consideration money was paid and how the suit property was purchased and even he could not prove who paid the consideration money. He could not produce any document relating to the suit property. Title deed and all documents relating to the suit property were all along in the custody of Lila and Lila all along paid municipal tax and got the suit property mutated in her name and Sekhar could not bring any evidence on record to lead any prudent man to infer that his father had a motive to create benami in name of his mother or Sailendra intended to enjoy the full benefit of the title in him alone. Judgments relied upon by the appellant in spite of having unquestionable value of the proposition laid down therein, shall not come in aid of the appellant in the factual matrix of the case at hand. 24. As a result, we are incli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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