Benami prohibition act section 3
manish kumar pandey
(Querist) 17 May 2012
This query is : Resolved
a father buy a property in the name of his minor son in 2000. son transfer this property by sale deed in 2006 without knowledge and concent of his father.father filed a title suit in 2009 and alleged that executed sale deed is null and void.son is joint with plaitiff and no partition between them.the defendant son file a petition under section order 7 rule 11for rejection of plaint and alleged that under section 3 of the benami prohibition act 1988 no any case can be filed on any person on the ground of benami related to land. plaintiff quistion that - is this property joint family property,what is status of that property,pl details about imp ruling against section 3 benami prohibition act, how can we plead fruther in this case,what rulings given against rejection of plaint. pl give suitable answer. yours-manish pandey advocate civil court bhabua bihar mob-09431680667.
Adv.R.P.Chugh
(Expert) 17 May 2012
Dear Colleague,
It is a BENAMI transaction indeniably, because minor can never have such funds to acquire property, and normal rule is any suit to recover property held 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.
Now the question that arises is "whether the son and father can be said to be forming an HUF"
The answer is YES for the reason that Jt.hindu family is the normal condition of hindu society, and there is always a presumption of jointness (where there has been no partition) by virtue of this presumption the burden of proof is put on the son to allege that they did not :-
i) form a coparcenory/no jt.hindu family;
ii) even if there was - the property was not to be held for the benefit of the family but exclusively for his benefit.
A indepth scrutiny of facts would be required to plead the above.
Good Luck !
Regards,
Bharat
Shonee Kapoor
(Expert) 18 May 2012
I am in full agreement with ld. Bharat.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
