Deatils of benami transactions (prohobition) act,1988
natasha sinha
(Querist) 27 August 2014
This query is : Resolved
my father bought a plot in 1982 in name of two elder sibling(they were minor and not earning at that time) he died inestate.now we two younger sibling( total of 4 siblings) wants our share in property .but Benami Transactions (Prohobition) Act,1988 comes to play
now lawyers says it is not valid in this case as
1. it was a deal in 1982 at that time Benami Transactions (Prohobition) Act,1988 was not there
2. Benami Transactions (Prohobition) Act,1988 is not applicable for family matters as benami is not maintainable due to statutory bar laid down in S.3 (which entails rejection u/o 7 R11) However there is an exception carved out in S.4 of the same act which says that where a property is held by a coparcener of a Hindu Undivided Family, for the benefit of other coparcenors then the same may be recovered.
3 one of the sibling (owner of plot)is ready to give under affidavit that the property is bought by parents with sole intention of building the family house in which entire family lived for 25 years
4.whether a property is benami or not, the Court is usually guided by the following circumstances a) the source from which the purchase money came, b) the nature and possession of the property, after the purchase, c) motive, if any, for giving the transaction a benami colour, d) the position of the parties and relationship, if any, between the claimant and the alleged benamdar, e) the custody of the title Deeds after the sale, and f) the conduct of the parties concerned in dealing with the property after the sale. (Rajinder prashad Malik Vs. Shanti Devi Malik A.I.R. 2003 P & H.26),
please i want every lawyer in the forum to reply (if busy atleast reply whather we younger siblings have any chance of winning the case)
ajay sethi
(Expert) 28 August 2014
file suit for partition to claim your share in property . provisions of benami transaction act would not be applicable
T. Kalaiselvan, Advocate
(Expert) 31 August 2014
I have a different opinion that whatever intentions he had, your father purchased the property on his two children name, therefore the property belongs absolutely to those two children alone, a partition sit will not lie nor it can be construed as a benami transaction. Thus, a family settlement may be arrived at by a joint sitting and arrangement accordingly.
