By
Vijay Pal Dalmia, Advocate
Supreme Court of India & Delhi High Court
Email Id: vpdalmia@vaishlaw.com
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The essence of a benami is the intention of the party or parties concerned; and not un-often such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises as a substitute for proof. The reason is that a deed is a solemn documents 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. Though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid tests, uniformally applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the courts are usually guided by these circumstances;
(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 color;
(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"
The above has been held by the Supreme Court in Jaidayal Poddar vs. Bibi Hazra AIR (1974) SC 171 passed by the Hon'ble Supreme Court of India.
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