Husband acquiring property in wife’s name does not necessarily imply Benami transaction: Calcutta High Court

Calcutta High Court | While dismissing the appeal dealing with benami transaction, a Division Bench comprising of Tapabrata Chakraborty and Partha Sarathi Chatterjee*, JJ., held that “if a husband supplies the consideration money for acquiring property in the name of his wife, such fact does not necessarily imply benami transaction” and even if it is proved that the husband paid the consideration money, it must be proved that the husband intended to enjoy the full benefit of the title alone.

Factual Matrix

In the instant matter, the respondent-mother (Lila) purchased the suit property from her ‘stridhan’ property and later became the absolute owner of the suit property. The deed of conveyance in her name at that time was not challenged by her husband or the appellant-son (Sekhar). The respondent bequeathed the suit property in favour of her daughter-Sumita because while the appellant had abandoned her and subjected her to mental and physical torture, her daughter provided her the financial assistance for her needs. The appellant instituted a suit for declaration, partition and permanent injunction which was dismissed by the Civil Judge on the grounds of lack of evidence. Aggrieved by the impugned judgment and order passed by the Civil Judge, the appellant preferred the present appeal before this Court challenging the same.

Parties’ Contentions

The appellant contended that the respondent was a mere housewife and had no independent income of her own at the purchase of the property, moreover, the respondent did not disclose the particulars of the ‘stridhan’ properties, from where she acquired the ‘stridhan’ properties or the value of the ‘stridhan’ properties.

The respondent contended that to hold the impugned transaction as benami transaction, the appellant needs to prove by the principle of preponderance of probability that although the suit property was purchased in the name of respondent, but the consideration money was paid or provided by the appellant and not by respondent.

Moot Point

Whether the transaction, i.e., the purchase of suit property under registered deed of sale dated 20-01-1970 by the respondent is Benami transaction?

Principle of Law

It is presumption in law that “the person who purchases the property is the owner of the same and such presumption can be displaced only by pleading and successfully proving that the person whose name appears in the document is not the real owner, but only a benami and heavy burden lies on the person who pleads that recorded owner is mere name-lender.”

Law Point

S. 2(a) of the Benami Transaction (Prohibition) Act, 1988 – “benami transaction means any transaction in which property is transferred to one person for a consideration paid or provided by another person.”

Court’s Observation

The Court observed that there are two kinds of benami transactions recognized in India – (1) 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, and (2) 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, as discussed by the Supreme Court in Thakur Bhim Singh v. Thakur Kan Singh, (1980) 3 SCC 72.

The Court relied on Jaydayal Poddar v. Bibi Hazra, (1974) 1 SCC 3, where the Supreme Court held that burden of proof regarding a particular sale is benami always rests on the person asserting it to be so and the Court while deciding whether a particular sale is benami or not 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.”

The Court observed that the petitioner was neither able to produce any evidence with regards to payment of amount of consideration money i.e., what was consideration amount, how as consideration money paid, how the suit property was purchased or who paid the consideration money, nor any document related to the suit property. On the other hand, the respondent asserted that she purchased the suit property from her ‘stridhan’ property and had the title deed and all documents related to the suit property and paid municipal tax all along.

The Court stated that “In the Indian society, if a husband supplies the consideration money for acquiring property in the name of his wife, such fact does not necessarily imply benami transaction. Source of money is, no doubt, an important factor but not a decisive one. The intention of the supplier of the consideration money is the vital fact to be proved by the party who asserts benami.”

Court’s Verdict

The Court upheld the impugned judgment and decree passed by the lower Court held that no error was made in the approach and decision of the lower Court as the appellant had failed to discharge his onus to prove that impugned sale transaction is benami transaction.

[Sekhar Kumar Roy v. Lila Roy, 2023 SCC OnLine Cal 1399, order dated 07-06-2023]

*Judgment by Justice Partha Sarathi Chatterjee

Advocates who appeared in this case :

Mr. Ayan Poddar, Mr. Soham Dutta, Mr. Kamran Alam, Counsel for the Appellant;

Mr. Sagnik Chatterjee, Mr. Sayan Mukherjee, Counsel for the Respondents.