Mother's property
Querist :
Anonymous
(Querist) 24 October 2011
This query is : Resolved
My Father bought a property in my mother's title.At that time she was a house wife but now she married another person can i have any right on that property?
Devajyoti Barman
(Expert) 24 October 2011
No,you have right over the same unless she gives it to you.
Sankaranarayanan
(Expert) 24 October 2011
yes it is subject to her wish , that part i agreed with mr barman,
Sailesh Kumar Shah
(Expert) 24 October 2011
I agree with advised of Shri Devajyoti Barman.
prabhakar singh
(Expert) 24 October 2011
Among dual meanings giving a reply is then quite a hard work and risky.
I am of the view that legally a claim can be set up by that property was purchased by and from consideration paid by your father as BENAMI in your mothers name to hold it in trust for him and for benefit of you;
BUT very serious burden of proof would be required from you.
In order to ascertain whether a particular sale is benami and the apparent purchaser is not the real owner, the burden lies on the person asserting to prove so. Such burden has to be strictly discharged through legal evidence of definite character. Such evidences either directly prove the fact of benami or establish circumstances unerringly and reasonably raising and inference of that fact. It is the intention of the parties, which is to be discovered. Very often such intention is shrouded in a thick veil. It is not possible to pierce the veil easily. But such difficulties would not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him. The difficulty would not justify the acceptance of mere conjecture or surmise as a substitute for proof. The proof has to be weighed against a document prepared and executed showing the person expressly as purchaser or transferee. This follows the initial presumption in favour of the apparent state of affairs being the real state of affairs. However, the question is largely one of facts. For determining this question, no absolute formula could be evolved nor can a formula so evolved be uniformly applied in all situations. But in such circumstances, it is the probabilities and inferences, which are to be gathered in order to discover the relevant indicia. It is not sufficient to show circumstances, which might create suspicion. The court cannot decide on the basis of suspicion. It has to act on legal grounds established by evidence. There have been various decisions by different High Courts, and the Supreme Court on these questions. By now, these propositions are well settled through those decisions. In order to determine whether a transaction was or is a benami one, the following guidelines may be followed :
(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.
A few guide lines may be found in cases:
1]Jayadayal Poddar v. Mst. Bibi Hazra AIR, 1974 SC 171
2]Krishnanand Agnihotri v. State of Madhya Pradesh AIR 1974SC 796 for the above proposition.
3]Amit Mukherjee v. Srnt. Bibhabati Dasi AIR 1979 Cal 344
Devajyoti Barman
(Expert) 25 October 2011
The property can be declared to be purchased in benam of the wife only by the husband and not by their children.
prabhakar singh
(Expert) 25 October 2011
There can not be straight jacket of negation.
All depends how a right is set up and what evidence one has and what circumstances are.If a son can prove that property was purchased in mothers name in trust for the benefit of son or for joint use or son name could not come because he was not there,then where is the law which straight forward negates as bar to such a pleading.
