AI Drafter 
TaxTMI 
TaxTMI 
2020 (3) TMI 588
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....egard to the property in question, i.e., part of Khasra No. 33/4 admeasuring 1975 sq.ft. of land constructed with a house over the part of it, situated at Gandhi Mandir Ward Bhatapara, District Balodabazar. According to the Plaintiff, it was purchased by her from one Hirendra Kumar Agrawal for a consideration of Rs. 6,812/- from her Stridhan under the registered deed of sale dated 12.07.1982 while showing her sons' names also owing to love and affection, who were minors at that time. It is pleaded further that the Defendants, without any interest, started demanding their share while interfering in her peaceful possession on 20.02.2017, therefore, she has been constrained to institute a suit in the instant nature. 3. Upon receiving the summons of the suit, the Defendants instead of filing their written statements raised an objection regarding the maintainability of the suit by moving an application enumerated under Order 7 Rule 11 read with Section 151 of CPC and praying for rejection of the plaint stating therein that the averments as made in the plaint while claiming her exclusive ownership over the suit property by the Plaintiff on the premises that the entire sale conside....
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.... of Section 2(9) of the said Act, 1988 submits that from a bare perusal of the plaint averments, it is clear that the property in question was purchased by the Plaintiff from her Stridhan, i.e., known source of her income, therefore, the trial Court has not committed any illegality in recording such a finding. 8. I have heard learned Counsel for the parties and perused the entire relevant papers annexed with this petition carefully. 9. From perusal of the order impugned, it appears that the trial Court while rejecting the alleged application filed under Order 7 Rule 11 of CPC has held that the suit as framed is not barred by the provision prescribed under Section 4 of the Act, 1988. The said provision is relevant for the purpose, which reads as under:- 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 ....
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....he name of his spouse or in the name of any child of such individual and the consideration for such property has been provided or paid out of the known sources of the individual; (iv) any person in the name of his brother or sister or lineal ascendant or descendant, where the names of brother or sister or lineal ascendant or descendant and the individual appear as joint-owners in any document, and the consideration for such property has been provided or paid out of the known sources of the individual; or" 11. From a bare perusal of the exceptional clause (iii) as provided in sub-clause (b) of the aforesaid provision, it is clear that if the property is held by a person in the name of his spouse or in the name of his child while paying consideration for acquiring such property of his known source of income, it would not come within the definition of benami transaction and the applicability of Section 4 mentioned hereinabove would not be applicable. It, however, would come into play only if it is established that the alleged transaction falls within the definition of benami transaction, else the suit cannot be held to be barred by the said provision. 12. According to t....
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....hat the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be sold. It is further observed that this burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact of the benami transaction or establish circumstances unerringly and reasonably raising an interference of that fact. In paragraph 6 of the aforesaid decision, this Court has observed and held as under : "6. "It is well-settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged 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. The essence of a benami is the intention of the party or parties concerned; and not unoften, such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transac....
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....se (supra), this Court again had an occasion to consider the nature of benami transactions. After considering a catena of decisions of this Court on the point, this Court in that judgment observed and held that the source of money had never been the sole consideration. It is merely one of the relevant considerations but not determinative in character. This Court ultimately concluded after considering its earlier judgment in the case of Valliammal v. Subramaniam (2004) 7 SCC 233 : (AIR 2004 SC 4187) that 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 possession of the property, after the 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. (Jaydayal Poddar v. Bibi Hazra (supra), SCC p. 7, para 6 (AIR 1974 SC 171)....