TMI Blog1993 (7) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... r children were found. The assessee contended that these investments had been made with the agricultural income of the minor children as well as loans given by him. But the assessee was not able to establish this explanation with satisfactory accounts showing agricultural income and the loans. In the assessment made for the assessment year 1981-82 on 31-12-1986, the ITO gave a finding that the funds for the purchase of these properties came from the assessee and that the income from these properties were also enjoyed by the assessee and, therefore, the assessee was to be treated as the real owner of these properties though they stood in the names of the minor children. The ITO further noted that in his reply dated 17-12-1986, the assessee h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... included in his net wealth. On the other hand, it was contended on behalf of the revenue that the assessee was only prevented from filing a suit for recovery of the properties whereas there was no bar on the ostensible owner accepting the title of the assessee as the real owner. In the alternative, it was submitted that there being a transfer of property to the minor children otherwise than for adequate consideration, the value of these assets are includible under section 4(1)(a) of the Wealth-tax Act. The reply of the assessee to this alternative ground was that there was no actual transfer by the assessee to the children of the property especially in the face of the finding that the assessee held the properties benami and, therefore, sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s entitled to defend their title and need not transfer the property to the assessee or his nominee in the absence of any coercion or fraud. In the circumstances, the material on record clearly indicate that the assessee will not be in a position to obtain or transfer title in the properties by ordinary means. In this connection, we may refer to section 27 of the Limitation Act which provides that where limitation provided for filing a suit for recovery of possession of an immovable property expires, the right in the property is extinguished. On the same analogy, when the filing of the suit itself is prohibited for obtaining possession of a benami property, the right of the real owner in that property must be taken to have been extinguished. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsactions (Prohibition) Act, 1988 is to distinguish the right of the real owner as against the ostensible owner. Even if it is presumed that the right exists without a remedy, the market value of such a right will be practically nil because no willing purchaser would be prepared to purchase such a right which cannot be enforced or protected. The Supreme Court has held in the case of Nawab Sir Mir Osman Ali Khan v. CWT [1986] 162 ITR 888, that the mere possession unaccompanied by a right to be in possession or ownership of property would not bring the property within the definition of " net wealth " for it would not then be an asset " belonging " to the assessee. The asset in the present case falls within that category for even if the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X
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