Husband Acquiring Property In Wife’s Name Would Not Necessarily Imply Benami Transaction As Source Of Money Is Not Decisive: Calcutta HC

While referring to Jaydayal Poddar (Deceased) thr. Lrs. v. Mst. Bibi Hazra AIR 1974 SC 171, a bench of Justice Partha Sarathi Chatterjee and Justice Tapabrata Chakraborty dismissed the petition, as the petitioner failed to show what the amount of consideration money was and how the consideration money was paid. Further failed to bring in evidence as to how the suit property was purchased and could not prove who paid the consideration money.

The party who asserts benami is to prove the intention of the supplier of the consideration money is an established principle of law.

Advocate Ayan Poddar appeared for the appellant, Advocate Sagnik Chatterjee appeared for the respondent.

In the present matter, the petitioner-son challenged an impugned judgment and order of the Civil Judge, Senior Division, Sealdah which had dismissed suit for declaration, partition and permanent injunction instituted by the plaintiff-appellant.

The appellant contended, inter alia, that the deceased father of the appellant- Sailendra Kumar Roy, purchased the suit property by a registered deed of sale in 1969 in ‘benam’ of his wife, Lila Roy-mother of the appellant.

The petitioner contended that the Court should have considered that Lila was a mere house-wife and had no independent income and hence, was a mere name lender.

Further that his father purchased the land and constructed a structure for the benefits of his family members and Lila in her evidence admitted that she was not engaged in any profession throughout her life. He further claimed that the defendants failed to prove that Lila paid the consideration money to purchase the land and incurred expenses for construction of the building standing thereon.

The question, therefore, to be adjudicated upon was whether the transaction through the purchase of suit property under registered deed of sale dated January 20, 1970 by Lila is benami transaction.

The bench after noting the submissions made, observed that the appellant could not produce any document relating to the suit property or any evidence to support his claims, which was the primary requisite as per the established principle. “Title deed and all documents relating to the suit property were all along in the custody of Lila and Lila all along paid municipal tax and got the suit property mutated in her name and Sekhar could not bring any evidence on record to lead any prudent man to infer that his father had a motive to create benami in name of his mother or Sailendra intended to enjoy the full benefit of the title in him alone”, the bench observed.

The Court was also of the opinion that “…In the Indian society, if a husband supplies the consideration money for acquiring property in the name of his wife, such fact does not necessarily imply benami transaction. Source of money is, no doubt, an important factor but not a decisive one. The intention of the supplier of the consideration money is the vital fact to be proved by the party who asserts benami. In other words, even if it is proved that Sailendra paid the consideration money, the plaintiff must further prove that Sailendra really intended to enjoy the full benefit of the title in him alone”.

Cause Title: Sekhar Kumar Roy v. Lila Roy & Another