In P. Leelavathi vs. V. Shankarnarayana Rao the Supreme Court has set the guidelines and paved the roadmap to be followed by the lower courts and authorities while dealing with the issue of Benami properties under the new law. Advocates Ashwani Taneja & Renu Taneja have analyzed the judgement in meticulous detail and explained all of its salient features
Trend Setter judgment from Hon’ble Supreme Court on Benami Law
Brief Analysis of its far reaching implications in the implementation of New Benami Law
In the case of P Leelavathi vs V Shankar Narayan Rao (Supreme Court)
(In Civil Appeal Number 1099 of 2008 Dt. 9th April, 2019)
LEGAL ISSUES DECIDED:
• Mere Financial Assistance By A Person To Another To Buy Property By The Latter Would Not Ipso-Facto Hold It A Benami Transaction
• The Burden To Prove A Transaction As Benami Is Upon The Person Who Asserts It So
• Intention And Other Five Factors Need To Be Analysed Before Holding Transaction As Benami
Aforesaid milestone judgement has been passed wherein various earlier landmark judgments have been discussed and few major legal principles for determining a transaction as Benami have been laid down by the Supreme Court, speaking through Hon’ble Justice(s) M.R. Shah and L. Nageshwar Rao.
Smt. P Leelavathi (plaintiff), daughter of late Sh. G Venkata Rao, filed Civil Suit in the Trial Court, Bangalore against her brothers namely Sh. V Shankar Narayan Rao and 2 others (the defendants) for partition and for recovery of one-fourth share of the plaintiff in the suit properties.
Properties in the Suit (dispute):
The properties in question were three immovable properties held in the name of defendants, three Fixed Deposits, a Joint Saving Bank Account and a few other movable properties. In addition, shares were purchased by Sh. G Venkata Rao in the joint name with the plaintiff and defendants.
PROCEEDINGS BEFORE THE TRIAL COURT:
Contentions of the Plaintiff:
Her contention was that her father late Sh. G Venkata Rao was an Estate Agent and was doing money lending business and purchased property in the name of his son though the funds were provided by their father. At the time of death, Sh. G Venkata Rao was in the possession of the large estate comprising of immovable properties Bank deposits etc. That, all such properties were joint family properties purchased and funded by her father and the plaintiff was entitled to one-fourth share in all the said properties belonging to her father, but her brothers (defendants) refused to give her one-fourth share.
Therefore, she instituted the suit for partition and for recovery of her one-fourth share in the suit properties, which according to her were owned by her father and were acquired as ‘benami’ in the name of defendants.
Contentions of the Defendants:
On the other hand,the claim of Sh. V Shankar Narayan Rao and two brothers was that the suit properties are exclusively owned by them in their individual rights. They further contended that the properties never belonged to their deceased father Sh. G Venkata Rao and they don’t form part of his Estate.
Sh. G Venkata Rao after retiring from the post of head clerk, indulged and acted as an Estate Agent in most casual manner and never did any money lending business nor purchased any properties. He was not a well off man and in fact the value of his entire household effects would not exceed Rs. 400/-.
Besides, the plaintiff also constructed house with the financial assistance of her father and used to borrow lot of money from him. She was enjoying the special privileges and benefits bestowed on her family by father while all the defendants were residing in rented houses.
Thus, defendants’ claim was that the suit properties were owned by the Defendants in their own rights and real capacity and not as ‘benami’.
Issues before the Trial Court:
In addition to deciding the ownership of the properties in question, the Trial Court framed an additional issue that whether the claim of the plaintiff is barred by Section 2 of the Benami Transaction (Prohibition of right to recover property) Ordinance, 1988, as a alleged.
Determination by the Trial Court:
The Hon’ble Trial Court dismissed the suit by holding that the suit properties are not the self acquired properties of late Sh. G Venkata Rao, as is alleged by the Plaintiff and immovable properties belonged to the original Defendants; even the bank deposits are the personal properties of the Defendants.
Thus, the Plaintiff’s claim of properties being ‘benami’ was not found acceptable by the Trial Court.
PROCEEDINGS BEFORE THE HIGH COURT- IN THE FIRST ROUND:
Against the judgement of Trial Court, the plaintiff preferred an appeal before the Hon’ble High Court. The Hon’ble High Court vide Judgement and Order dated 26.02.1999 accepted appeal of the Plaintiff and set aside the judgement and decree passed by the Trial Court holding that all the properties were in the names of original defendants and the transaction in question were Benami in nature, and thus the Plaintiff inherited one-fourth share therein.
PROCEEDINGS BEFORE THE SUPREME COURT- IN THE FIRST ROUND:
Aggrieved and dissatisfied with the above said judgement of Hon’ble High Court, the legal representatives of the original defendants approached the Hon’ble Supreme Court and the Hon’ble Supreme Court allowed the appeal and remitted the matter back to the High Court giving observations inter-alia that the Hon’ble High Court has not properly appreciated and /or considered whether the transaction in question is Benami or not.
PROCEEDINGS BEFORE THE HIGH COURT-IN THE SECOND ROUND:
This time, the High Court dismissed Plaintiff’s appeal (changing its earlier stand) and thus confirmed the judgement and decree passed by the Trial Court and dismissed the suit, giving specific observation that the purchase or transaction in favour of defendants with respect to the suit properties were not benami transactions and they are the self-acquired properties of the Defendants and therefore, the Plaintiff was not entitled to any share in the suit schedule properties. It also observed and held that the provisions of Benami Transactions (Prohibition) Act, 1988 are retroactive in application.
PROCEEDINGS BEFORE HON’BLE SUPREME COURT- IN THE SECOND ROUND:
Against the said judgement and order passed by Hon’ble High Court, the original Plaintiff (now deceased and represented through legal heirs) preferred the present appeal in Supreme Court.
Contentions on behalf of Appellant (original Plaintiff):
1. It has come in evidence that the sale consideration was paid by the father of the plaintiff and the Defendants.
2. Defendants number 1 admitted that his father paid a sum of Rs. 1030 vide Demand Draft directly to Tamil Nadu Housing Board in order to purchase the suite property.
3. Now, Hon’ble High Court having concluded that the purchase money of the suit properties came from late Sh. G Venkata Rao there after the Hon’ble High Court is not justified in concluding that the plaintiff was required
(a) To give further evidence to establish that the suit properties were acquired for the benefit of Defendantsor
(b) Late G Venkata Rao had other reasons to acquire the suit property in the name of his sons.
4. If it is proved that the purchase money came from person other than the person in whose favour the property was transferred the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money unless there is an evidence to the contrary (Supreme Court judgement in Thakur Bhim Singh vs Thakur Kan Singh (1980)3 SCC 72 was relied upon)
Contentions of the Respondent (original Defendants):
1. Merely, because some financial assistance might have been given by the father to the defendants while purchasing the suit properties, the same would not become a benami transaction unless the contrary intention is established and proved.
2. The intention of late G Venkata Rao in providing the financial assistance to his sons for acquiring the properties was to provide shelter to his sons as he did the same for his daughter too.
3. The provisions of Benami transaction prohibition act would not be applicable retrospectively.
4. The burden of proving the Benami transaction lies on the person who alleges the same.
5. The source of money can never be the sole consideration and it is merely one of the relevant considerations, but not determinative in character while deciding a Benami transaction. (Reliance placed on Binapani Paul vs Pratima Ghosh 2007 6 SCC 100).
PRESENT JUDGMENT OF HON’BLE SUPREME COURT:
Issues Decided By The Supreme Court:
Hon’ble Supreme Court upheld the decision of the High Court and the Trial Court and gave significant observations as summarized here under
The court observed that merely because some financial assistance was given by a person, it doesn’t make the transaction done with those funds as Benami as this cannot be the sole determining factor. In order to make the fund provider as beneficial owner and the property purchased as Benami, the court has to go beyond the source of consideration and there has to be other significant ingredients, which should be proved beyond doubt, in order to prove transaction as Benami.
2. Burden of Proof:
Their Lordships based their judgment by taking into consideration the earlier judgments of the Privy Council by Lord Macmillan (in the case of Manmohan Das- AIR 1931 PC 175) as well as by Justice Sarkaria (in the case of Jaydayal Poddar vs Bibi Hazra 1SCC 3), wherein it was inter-alia held that the burden of proving that a particular sale is Benami the apparent purchaser is not the real owner, always rests on the person asserting it to be so and that this burden has to be strictly discharged with by adducing legal evidence of a definite character which would either directly prove the fact of Benami or establish circumstances unerringly and reasonably raising an inference of that fact.
3. The Intention of the Parties Concerned:
It was further held that the other significant factor which needs to be considered while deciding a property as Benami property is the intention of the parties. In the present case the intention of the father was to provide financial assistance for the welfare of his sons, as he used to provide for her daughter too, and not beyond that. He did not have the intention to purchase the property for himself in the name of his sons. Hence intention of the parties entering into a Benami transaction has to be proved beyond doubt that the main purpose to enter into the said transaction is to defeat the provisions of Benami law.
4. Other Ingredients:
The court further observed that in addition to the above, the other ingredients, as have been recommended in various earlier decisions of the Supreme Court for proving transactions as Benami transactions, should be established and proved in order to declare a transaction as Benami. The Supreme Court relied heavily upon the ratios decided in the case of
*Thakur Bhim Singh versus Thakur Kan Singh (1980) 3 SCC 72.
*Jaydayal Poddar vs Bibi hajra (Mst)(1974)1 SCC 3
*Bina Pani Paul vs Pratima Ghosh (2007) 6 SCC 100
*Valliammal vs Subramanyam (2004) 7 233
Wherein it was inter-alia held that:-
(a) In order to ascertain whether a particular sale is Benami and apparent purchaser is not the real owner, the burden lies on the person asserting to prove so, such burden has to be strictly discharged based on legal evidence of definite nature.
(b) It is the intention of the parties which is to be ascertained, very often such intention is shrouded in a thick veil. It is not possible to pierce the veil easily. However, such difficulties would not relieve the person who asserts that the transaction is Benami, of any part of onus that rests on him. The difficulty would not justify the acceptance of mere conjecture or surmise as a substitute of proof.
(c) The transfer deed for the transaction is a solemn document prepared and executed after considerable deliberation and the person expressly shown as the purchaser or transferee in the deed starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs.
(d) While considering whether a particular transaction is Benami in nature the following six circumstances can be taken as a guide:
1. The source from which the purchase money came.
2. The nature and the possession of the properties after purchase
3. Motive, if any for giving the transaction a benami colour
4. The position of the parties and the relationship if any between the claimant and the alleged Benamidar
5. The custody of the title deeds after the sale and
6. The conduct of the parties concerned in dealing with the property after the sale.
(e) The source of money had never been the sole criteria while deciding the nature of Benami transactions it is merely one of the relevant criteria but not determinative in character.
Thus, the appeal was dismissed by the Supreme Court stating that the properties were purchased by the Defendants and the plaintiff has no right to claim 1/4th share in the suit properties.
AUTHORS’ ANALYSIS AND VIEWS ON IT’S FUTURE IMPLICATIONS:
In our view, though it is claimed that nothing new has been brought out by the Hon’ble Court on legal principles, but we are of considered opinion that this judgment would be a Trend Setter judgment.
As we all know that after the introduction of amended benami law in 2016, lot of chaos and confusions have arisen in the minds of the many, in view of wide spread, casual and un-thoughtful implementation of law due to imperfect drafting of amended as well as pre-amended law and lack of proper guidance available with the implementation and adjudication agencies. Virtually no mechanism and adequate infrastructure has been installed by the government to ensure that citizens adversely affected by implementation may resort to proper remedial measures and justice and fair play is done with them.
Though crucial legal issues were already decided in many judgments by various High Courts as well as the Apex Court in the course of deciding civil disputes arising amongst the private parties wherein any one or more of the parties would allege a transaction to be Benami transactions. In the process of deciding such disputes the courts gave guidelines and laid down legal principles for determining a transaction or a property as Benami or otherwise in the numerous judgments, some of which have also been discussed above.
It appears that confusion was created and some erroneous impression or notion was gathered by the implementation agencies while doing implementation of the amended law as if earlier judgments ceased to hold water.
However, with the present judgment, most of the crucial issues already decided have got fresh life and reinforcement. Thus, now after the aforesaid judgment coming from the Apex Court, we can say that the legal issues decided by the Apex Court is law of the land and all the authorities in the country are bound by it and not following the same may be treated as contempt.
Hence it can be safely visualised that Supreme Court in the present judgement set the guidelines and paved a roadmap to be followed for the lower courts and authorities while dealing with the issue of Benami properties.
Further, the aforesaid judgment shall go a long way to clarify the correct legal position of new provisions of Benami Law, which is being presently implemented all over the country, mostly in a highly vague manner.
Lastly, as we know that new Benami Law is quite harsh as it entails severe and prompt penal and criminal consequences, therefore the law should be implemented in a meticulous way and with fair and judicious approach. Further no person should now even think of entering into any Benami transaction as the consequences are un-escapable and quite severe.
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