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Benami transanction

Querist : Anonymous (Querist) 11 November 2011 This query is : Resolved 
Sirs,
I applied for a plot in the name of my uncle.It was allotted & I made payment through DD and possession was delivered in the name of my said Uncle.After 3 years of tasking possession he met with a road accident & died.
I want the plot to be transferred in my name.Aunt knows everything including how I procured this plot & that I had payment.Now she is not co-operating.
How can I get the plot registred/transferred in my name.If Chachi cooeprates? If she doesn't?
Please guide me
Devajyoti Barman (Expert) 11 November 2011
Sorry, you have lost the plot the day you applied in your uncle's name.
Request your aunt to give at least a token amount as compensation as you have no case at all.
prabhakar singh (Expert) 12 November 2011
How can I get the plot registred/transferred in my name.If Chachi cooeprates?If Chachi cooperates?

Answer: If she [as well as sons and daughters and also mother of your chacha,if alive] agree(s)then request them to preferably execute a sale deed in your favor for consideration advanced by you in past by reference of the DDs and get the sale deed registered in the sub registrar office of the jurisdiction where the property situate.
The next choice may in case of agreement is
a registered Gift Deed .


How can I get the plot registred/transferred in my name.
If she doesn't?

I am also as much sorry as Mr. Barman is that you can not but in case the money advanced by DDs is within three[03] years you can sue for its recovery and in case she has no source to satisfy your debt you can
get this property attached.

I advise you to get in touch of a civil law practicing lawyer at local level and start working out on my two alternatives suggested.
Some time several emerge out on discussions
,here consultation can work only in its own limitations.Face to face consultation is entirely different thing.
Shailesh Kr. Shah (Expert) 12 November 2011
Do you know that you can be prosecuted u/s 3(3).

Section 3(3) clearly states that Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.

Further, Property of benami liable to acquisition.
piyush sharma (Expert) 12 November 2011
I am completely agree with mr. Shailesh Kr. Shah.
ajay sethi (Expert) 12 November 2011
the moeny was advanced by you to your uncle through demand draft . whether in your uncle income tax returns it has been shown as loan?

you cna file suit for recovery of the amount advanced as suggested by Mr prbahakar singh if your aunt refuses to coperate .
Sankaranarayanan (Expert) 12 November 2011
yes i do agree with all experts view and opinion.
prabhakar singh (Expert) 12 November 2011
I disagree with mr. Shailesh Kr. Shah to the extent that it was a transaction within family.
Guest (Expert) 12 November 2011
Dear querist,

Shri Devajyoti Barman is right in his observation. You will have to compromise on the terms of the legal hiers of your uncle, not even on the terms of aunt only.
Guest (Expert) 12 November 2011
@ Prabhakar ji,

The querist put question only on "benami transaction," where he has not made clear whether the transaction was within the knowledge of his uncle or not.

You may kindly like to clarify, what would be the position under the provisions of The Benami Transaction (Prohibition) Act, 1988, if the transaction would NOT have been made with the knowledge of his uncle, may he be a member of his family?
Shailesh Kr. Shah (Expert) 12 November 2011
Shri Prabhakar Singh,

please go through this act:-


THE BENAMI TRANSACTIONS (PROHIBITION) ACT, 1988
No.45 OF 1988

[ 5th September, 1988.]
An Act to prohibit benami transactions and the right to recover properly held benami and for matters corrected therewith or incidental thereto.

BE it enacted by Parliament in the Thirty-ninth Year of the Republic of India as follows :--

1.Short title, extent and commencement.- (1) This Act may be called the Benami Transactions (Prohibition) Act, 1988.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) The provisions of sections 3, 5 and 8 shall come into force at once, and the remaining provisions of this Act shall be deemed to have come into force on the 19th day of May, 1988.

2.Definitions.- In this Act, unless the context otherwise requires,--

(a) "benami transaction" means any transaction in which property is transferred to one person for a consideration paid or provided by another person;

(b) "prescribed" means prescribed by rules made under this Act;

(c) "property" means property of any kind, whether movable or immovable, tangible or intangible, and includes any right or interest in such property.

3.Prohibition of benami transactions.- (1) No person shall enter into any benami transaction.

(2) 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.

(3) Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.

(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, an offence under this section shall be non-cognizable and bailable.

4.Prohibition of the right to recover property held benami.- (1) No suit, 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.

(3) Nothing in this section shall apply,--

(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or

(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity.

5.Property of benami liable to acquisition.- (1) All properties held benami shall be subject to acquisition by such authority, in such manner and after following such procedure as may be prescribed.

(2) For the removal of doubts, it is hereby declared that no amount shall be payable for the acquisition of any property under sub-section (1).

6.Act not to apply in certain cases.- Nothing in this Act shall affect the provisions of section 53 of the Transfer of Property Act, 1882 (4 of 1882.), or any law relating to transfer for an illegal purpose.

7.Repeal of provisions of certain Acts.- (1) Sections 81, 82 and 94 of the Indian Trusts Act, 1882 (2 of 1882.), section 66 of the Code of Civil Procedure, 1908 (5 of 1908.) and section 281A of the Income-tax Act, 1961 (43 of 1961.), are hereby repealed.

(2) For the removal of doubts, it is hereby declared that nothing in sub-section (1) shall affect the continued operation of section 281A of the Income-tax Act, 1961 (43 of 1961.) in the State of Jammu and Kashmir.

8.Power to make rules.- (1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.

(2) In particular , and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely :--

(a) the authority competent to acquire properties under section 5;

(b) the manner in which, and the procedure to be followed for, the acquisition of properties under section 5;

(c) any other matter which is required to be, or may be, prescribed.

(3) Every rule made under this Act shall be laid, so soon as may be after it is made, before each House of Parliament, while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

9.Repeal and saving.- (1) The Benami Transactions (Prohibition of the Right of Recover Property) Ordinance, 1988 (Ord.2 of 1988.) is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken under the said Ordinance shall be deemed to have been or taken under the corresponding provisions of this Act.

Shailesh Kr. Shah (Expert) 12 November 2011
Benami transaction is allowed only wife and unmarried daughter.
Shailesh Kr. Shah (Expert) 12 November 2011
Shri Prahbakar Singh,

After reading provisions of THE BENAMI TRANSACTIONS (PROHIBITION) ACT, 1988.

you should be agree with me.
Querist : Anonymous (Querist) 12 November 2011
A lot of thanks to all the worthy Experts for sparing their precious time to help me save my own property.
In fact I hail from Kashmir (Srinagar) where the Act referred by Sh.Shailash Kumar Shah does not extend.So.....!!!
There is yet another advice:
Supposing I file a suit for declaration that I am the true owner-in-possession of Plot No.XXX & papers in the Office of the Housing Board record show Chacha (now deceased)as owner;that I have made payment through DD;that since beginning I am in possession of the plot;that during life time Chacha (even his family members) did not raise any objection in my possession;that his heirs have no right or title to this plot.......Pray:The title in the office record may be changed from Chacha's name to my name ????
Parties : Me vs. 1.Chairman Board Sgr;
2.Chachi & minors

Please GUIDE !
Warm Regards.
prabhakar singh (Expert) 12 November 2011

@ Mr.Shah!
There has been a lot of defect found.I am aware of the provisions quoted since beginning.
Shailesh Kr. Shah (Expert) 12 November 2011
R/Sir,

can i know that you are stated on which type of 'Defect'?
prabhakar singh (Expert) 12 November 2011
@ DHINGRA JI!

RE READ THE QUERY LINE BY LINE BEFORE MAKING ANY REMARK.

I HAVE SIMPLY ANSWERED WHAT HE WANTED TO KNOW.
prabhakar singh (Expert) 12 November 2011
mr.Shah must know before quoting provisions what the query is and what the answer is required.?

Moreover,he has not looked for any advise that should he file any suit to declare it BENAMI or not,nor he can do so as his uncle is already dead.

Despite whatever is laid in this enactment has been found defective in courts to cover JHUF conceptual cases and one must know that an amendment Bill has already been passed,notification is awaited.

Knowing and applying are two different things.
Shailesh Kr. Shah (Expert) 12 November 2011
Shri Prabhakar Singh,

with due respect, I still stand on my answer.
prabhakar singh (Expert) 12 November 2011
Where do i compel you not to stand on your legs!
Querist : Anonymous (Querist) 12 November 2011
Respected Sh.Prabhakar Sahib,Huzur Mr.Shah, id appears you people have 'entered personalities' over my question.Thats not expected.I withdraw my question.Please forgive me.
If your debate is academic thats a different thing.Law & legal interpretations have NO ENDING.
Lets end it here.I can afford to forget that I made a hypothetical illustration of a suit for Declaration.
Have Nice Weekend !
Shailesh Kr. Shah (Expert) 12 November 2011
I am talking about "answer".
Guest (Expert) 12 November 2011
Dear Anonymous,

Please go through "the Jammu and Kashmir Benami Transactions (Prohibition) Bill, 2010 (L. A. Bill No. 2 of 2010)" which may probably help to provide some solution to your query.
Guest (Expert) 12 November 2011
@Prabhakar ji,

I saw in one of the thread earlier that you have warned me and prohibited for "choch ladana." Although it may not be appropriate for me to reply your post against your advice, but I feel, it would not be out of place for me to clarify my position. I sought some clarification (NOT made any remark) only after properly going through the query "line ny line," answer of Shri Shailesh Kumar Shah, and definition of benami transaction (read with sec. 3(2)), which reads as under:

"Benami transaction" means any transaction in which property is transferred to one person for a consideration paid or provided by another person."

However, if you have felt ill, I can avoid seeking your advice.
prabhakar singh (Expert) 13 November 2011
The Union Cabinet cleared the Benami Transactions (Prohibition) Bill, 2011, paving the way for its likely introduction during the coming monsoon session of Parliament.

The government, understandably, is keen to introduce the Bill in Parliament to replace a 23-year-old Act that could never be brought into force due to its “infirmities”.
Devajyoti Barman (Expert) 13 November 2011
The discussion has totally gone out of its track.
Shailesh Kr. Shah (Expert) 22 November 2011
Shri Prabhakar Singh

Respected Sir,

This is for your kind information that THE BENAMI TRANSACTIONS (PROHIBITION) ACT, 1988 is come into force 19th May,1988.

Thanks
with Regatds,


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