Home Case Index All Cases Benami Property Benami Property + HC Benami Property - 2021 (12) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2021 (12) TMI 1162 - HC - Benami PropertyBenami transaction - suit property is ancestral property - Suit property was purchased in the name of grandmother of the plaintiff by grandfather - what was the reason for the defendant to purchase the property in the name of mother and not in his own name? - HELD THAT:- Whether the transaction in question was a Benami and whether the defence of the defendant that in fact he is the exclusive owner and not his mother, though the property was standing in her name, could have been allowed to be raised in view of Section 4 of Benami Transactions (Prohibition) Act, 1988, was not considered by both the Courts below. But, definitely, that point which is the law point, which can be framed here, will have to be gone into because if the defendant could not have been allowed to raise that defence, then his entire defence fails. Here, we are concerned with whether defendant can take such defence and to that extent, the observations in paragraph No.13 would be required to be considered. However, since the categories have been made, we will have to consider its interpretation. Further, the real intention whether was brought on record is also a question. Another fact to be appreciated on the basis of the same is, if the property was in the name of mother, then whether defendant could have raised any loan from any institution/bank/ Patsanstha is also required to be considered. On this point, in fact, the Courts below have considered that the said construction would have been made by the defendant as per his choice and will. It does not deprive the plaintiff of his right. The documents on record were considered by both the Courts below and it was observed that those documents appear to be fabricated. The defendant was the Secretary of the Patpedhi, from whom it was shown that he had raised loan. Therefore, as regards factual aspect is concerned, it is not giving any rise to a substantial question of law, however, the nature of the property and whether the defendant could have raised defence of exclusive ownership, though the property stood in the name of his mother, deserve to be resolved/adjudicated in this case. Hence, the second appeal stands admitted. Following are the substantial questions of law :- I) What was the nature of the suit property i.e. as to whether ancestral or of exclusive ownership of defendant No.1? II) Whether the defendant could have been allowed to take defence that though the suit property was purchased in the name of his mother but he was in fact the real owner (Benami Transactions) in view of Bar under Section 4 of the Benami Transactions (Prohibition) Act, 1988? Issue notice to the respondents. Mr. M. S. Kulkarni waives notice for respondent Nos.1 to 3.
|