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Benami transaction in joint property

(Querist) 07 November 2013 This query is : Resolved 
Dear Experts,
Husband bought a joint property by mistake with wife in 2006 in Chennai. Husband has only taken the home loan paying all EMIs, no co applicant in bank records, husband is the only applicant and he has all proof, all payments done by him. But in sales deed both husband and wife name mentioned. Wife started treating him with cruelty from the month he bought it. He want to sell property to buy new in Delhi on his name, wife refused to sign for selling it past. Now property value is 1cr, she ask husband to get 50L DD on her name , then only she will agree to sell it. She will spend 50L money as per her wish.
Couple do not have any kids. This property is from Husbands saving of 14 years service have all years IT returns. How can he sell this house and get the money back. Their marriage is on rocks.
How can husband prove this as benami transaction and claim for the property,
Benami act 1988 on properties bought after 1988 says
" Nothing in sub-section (1) shall apply to the purchase of property by any person in the name
of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the
said property had been purchased for the benefit of the wife of the unmarried daughter"

Can you pl. give reference of such judgments in internet where HC directed in favour of husband .I have searched lot on web not getting it.

Kolla V. Raman (Expert) 08 November 2013
Husband must issue legal notice to wife to come and sign sale deed stating he purchased from his earnings. She refuses husband has to file case in the court to prove that he is the absolute owner of property. contact: Global Legal Services, Cell No: 9290673693
ChandanLawyersclub (Querist) 08 November 2013
thx Mr. K V Raman , are you based out of Chennai.
BAALASUBRAMANNYAMM (Expert) 08 November 2013
When a registered Sale Deed is in the name of wife and husband, both are having equal rights and shares over the property. Here his wife name is not treated as "Binami"Once, hus band wants to sell the said property, the acceptance and signature of his wife is compulsory. Thats all.
Guest (Expert) 08 November 2013
Your query is incomplete.
Case No.1: The Single Bench of the Hon'ble Bombay High Court has held that Defendants unable to prove their income.

Case No.2: The Division Bench of the Hon'ble Bombay High Court held in a matrimonial dispute that since the husband has admitted the wife as co-owner, the admission stands on a higher footing. The Appeal filed by the wife was allowed and the Decree passed by the Family Court was set aside.
malipeddi jaggarao (Expert) 08 November 2013
If the property is in the names of both, no bank will give home loan to one single person. Repayment might be from one source that is a different matter. Please clarify.

Once it is in the joint names, and when the relations are strained, she will not agree to fore-go her right. First of all he has settle the issue of his marriage. Then simultaneously he can move the property issue in that case. Without her cooperation, immediate remedy is not seen.
ChandanLawyersclub (Querist) 08 November 2013

While applying for loan Husband had given wife name also as co applicant. But all document is generated from ICICI bank system is on husband name. Husband checked with bank also they told it is in Husband name only.
Husband files IT return is salaried, but wife is some time working some time not working. Wife earns 1/10 th of Husband.
If husband files divorce he loses 50L property+ 1/5 of his salary as maintenance every month to win divorce.
Husband want to decide on divorce based total financial loss to him. If he cannot get ownership of house, he has no choice to live with situation.
He has two strong grounds of cruelty for divorce. But due to house ownership he is in dilemma.

Raj Kumar Makkad (Expert) 08 November 2013
The ownership of the house do not depend upon the joint application for loan by couple rather the registered sale-deed/conveyance deed is required to be gone through. If both are having share therein then nothing can be done.
ABDUL RAZIQUE (Expert) 08 November 2013
Agree with R.K.Makkar Sir, I have same word for this query.
malipeddi jaggarao (Expert) 09 November 2013
If the document is in joint names, as rightly advised by Shri Makkad Saheb, you do not have any remedy without preparing yourself to forego the share. Your argument that the property is purchased entirely with husband's savings and wife did not contribute anything will not stand good as the document is in both the names. Try to have a reconciliation with the wife and offer some compensation if not 50%. But when the things have come to this extreme stage, I doubt she will agree for any reconciliation. Marriage is of how many years old? Whether consummation took place or not? Whether husband is solely interested in saving the property and alimony or he is interested in saving the marriage?
ChandanLawyersclub (Querist) 09 November 2013
Thank you all for your valuable suggestion.
Marriage is 9.5 years old, Wife behavior was initially very good before buying house in 2006, after buying house 2 months. After ill advice from her office people in now house is in her name, she can do anything she wants. She stopped sharing bed with husband on fertile days, she ensures every time husband wife has relation no conception happens, which happens very rarely. she do not want kid , do not come forward for assistance of doctor for conception , do not want to adopt, not even not giving husband her ovum for even for surrogacy via ART(IVF).
Husband is trying to save the marriage from last 7 years. Wife has taken this house as exploitation tool. She was told by many her friends even husband files divorce, she will get half of the house + 1/5 of his salary ( 25-30K per month), which she will enjoy. Husband has done 4 times counseling in family court help cell but no change in wife’s attitude to start family.
Husband is willing to adopt a child, but worried about the future, upbringing of child without mother’s ownership.
If child comes in husband’s life 85% problem is solved, he can live with 15% remaining problem assuming it as wear and tear of married life. He wants to save this marriage.

ajay sethi (Expert) 09 November 2013
the problem is you want to save the marriage but your wife wants only your money . she has been well advised . forget about selling the property in chennai .

file for divorce on grounds of mental cruelty . since your wife refuses to have sex it amounts to cruelty
ChandanLawyersclub (Querist) 09 November 2013
Even if Husband files divorce on grounds of mental cruelty
1. wife refusing to have sex.
2. Depriving husband from parent hood
Husband wife relations started spoiling after buying house.
Will court will give wife 1/2 of the property +1/5 of( Husbands salary)as maintenance in case of contested divorce?
Husband is Ok with maintenance, but giving 50% property to wife + maintenance too much for him. He has only 18 years service now, need to restart his life form beginning in case of divorce. Will court will not give some relief to husband in this case on Property.
ajay sethi (Expert) 09 November 2013
the mistake you made was you bought flat in joint names . your wife is co owner of said flat . in case of divorce wife would get 50%share in said property
ChandanLawyersclub (Querist) 09 November 2013
Thx all,

Sorry similar query was raised 4 months back in family law forum with respect to divorce, but response of most experts was in favor of husband.
I am attaching the link below

During 4 months I have studied 3 laws books fully on cruelty against husbands. , but such case of division of property I am not finding in any book

So I am very much confused, I have seen three local lawyers two says in Husband's favour, second in wife's favour.

pl. help to come out from this confusion.

Request experts to give some HC judgement links in favor of Husband in past properties bought after 1988. Or Pl. suggest a book if any.
malipeddi jaggarao (Expert) 12 November 2013
It appears you have gone very deep into the problem and you know solutions. As regards property matter, forget about it at this stage and file a divorce petition on grounds of cruelty. At the time of arguments for alimony and sharing of property in the divorce suit, you can bring the facts before the judge that she has sufficient income for maintenance and the property is purchased solely with your income and such she can not claim it. It all depends upon the proceedings of the case, representation of the case by both sides and also on the personal perception of the judge. When there is no alternative and when you wish to start a new life, you should prepare even to forego certain things but you should make all efforts to retain your rights. Do not spend much time on this aspect only. Hand over the divorce to a good lawyer who will take care of the rest. You start leading normal life as if nothing has happened to you. Things will take their own course and finally you will be the winner if you have committed no wrong. Divert your mind to some other aspects. Continue your efforts to settle the issue by filing divorce petition.
ChandanLawyersclub (Querist) 12 November 2013
Thx Sir,
Your suggestion is really motivating.

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