| The Tax Publishers2020 TaxPub(DT) 2295 (Del-HC) : (2021) 276 TAXMAN 0265 PROHIBITION OF BENAMI TRANSACTIONS ACT, 2016
Section 9
Where suit was filed on ground that even though property in question was allotted in name of R1 (i.e., brother of deceased) but consideration for same was paid by father of the deceased, Single Judge was not justified in rejecting suit on ground that pleas taken by appellants were barred under section 4(3) of the unamended Benami Act, because it was imperative to weigh the evidence for the court to conclusively decide as to whether appellants could succeed in their claim that R1 was holding the suit premises in a fiduciary capacity for the benefit of all the family members.
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Prohibition of Benami Transactions - Rejection of writ - Suit filed on ground that even though property in question was allotted in name of R1 (i.e. brother of deceased) but consideration for same was paid by father of the deceased -
Appellants/plaintiffs questioned order passed by Single Judge dismissing a suit for partition and permanent injunction instituted by them against respondents/defendants claiming that they were collectively entitled to 1/10th undivided share in the residential premises in question. Suit was filed on ground that though said property was allotted in name of R1 (i.e. brother of deceased) but consideration for same was paid by father of the deceased. Held: Suit was dismissed by Single Judge holding that appellants could neither claim an exception to Benami law either under the unamended Act or under the amended Act, in view of the fact that only pleadings in the suit were completed but issues were not framed and no evidence was led. In instant case, where it was asserted that the suit premises was purchased in the name of R1, but from the exclusive contributions made by deceased, and therefore in reality, was meant for the benefit of all the family members, the real test would be the source from which the purchase money came from, the nature and status of possession of the property after its purchase, the motive if any for giving the transaction a Benami colour, the position of the parties and their inter se relationship, between the appellants/plaintiffs and R1, the overall conduct of the parties in dealing with the suit premises after it was acquired, etc. It would, therefore, be imperative to weigh the evidence in the instant case for the court to conclusively decide as to whether the appellants/plaintiffs could succeed in their claim that R1 was holding the suit premises in a fiduciary capacity, for the benefit of all the family members. Thus, order was set aside and, matter was remanded back for disposal afresh.
REFERRED :
FAVOUR : In assessee's favour.
A.Y. :
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