Benami purchases are purchases in false name of another person, who does not pay the consideration but merely lends his name, while the real title vests in another person who actually purchased the property and he is the beneficial owner. Benami transactions used to take place to evade law of perpetuity, because of parda system, to avoid annoyance, Zamindar�s desire to avoid indignity and legal disability, mysterious desire etc.

Benami transactions were noticed as early as the year 1778 in Mr. Justice Hyde�s notes after the establishment of British rule in India. In 1854 the committee on a review of cases in Gopeekrist Gosain Vs. Gungapersuad, (1854) 6 MLA 53, held that benami transaction is a custom of the country and must be recognized till otherwise ordered by law. In 1882 sections 81 and 82 of Indian Trusts Act gave legislative recognition to the practice of benami transactions and the courts were bound to enforce it.

Such benami transactions abused and defrauded public revenues and creditors. The Parliament for the first time intervened in 1976 when it introduced section 281A in the Income-tax Act, 1961 barring the institution of suit in relation to benami properties. But this too did not stop benami transactions and its consequences, this time the Parliament totally prohibited the benami transactions and made it an offence also, prohibiting all suits, claims and actions based upon benami transaction. The Parliament also in order to stop the abuse and fraud by the benami transaction property without compensation repealed section 82 of Indian Trusts Act and section 281A of the Income tax Act along with other consequential repeal. The Law Commission was requested to examine the subject on benami transactions in all its ramifications. The Law Commission submitted its 57^th Report. To implement the recommendations of the Law Commission President promulgated the Benami Transaction (Prohibition of the Right to Recover Property) Ordinance, 1988 on 19^th May, 1988 by which it barred all suits and defenses based upon benami transactions. This Ordinance was converted into an Act by introduction of a Bill in the Parliament.

(1) To implement the recommendations of the Fifty-seventh Report of the Law Commission in Benami Transactions, the President promulgated the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988, on the 19^th May, 1988.

(2) The Ordinance provided that no suit, claim or action to enforce any right in respect of any property held benami shall lie and no defense based on any right in respect of any property held benami shall be allowed in any suit, claim or action. It however, made two exceptions regarding property held by a coparcener in a Hindu undivided family for the benefit of the Coparceners and property held by a trustee or other person standing in a fiduciary capacity for the benefit of another person. It also repealed section 82 of the Indian Trusts Act, 1882, section 66 of the Code of Civil Procedure and section 281A of the Income-tax Act, 1961.

(3) The provisions of the Ordinance received a mixed response from the press and the public. There had been criticism also that the Ordinance was a half-hearted measure and had not tackled the problem effectively and completely. It was, therefore, felt that the Bill to replace the Ordinance may be brought out as a comprehensive law on benami transactions touching all aspects and accordingly, the Law Commission was requested to examine the subject in all its ramifications. The Law Commission has submitted its 130^th Report titled "Benami Transactions � a Continuum" and has made certain recommendations.

(4) The Law Commission has, inter alia, recommended the inclusion of the following provisions in the Bill to replace the Ordinance, namely: -

(i) benami transactions should cover all kinds of property;

(ii) entering into a benami transaction after the commencement of the new law should be declared as an offence. However, an exception should be made for transactions entered into by the husband or father for the transfer of properties in the name of the wife or unmarried daughter for their benefit. By this, the doctrine of advancement as obtaining in the English law will be incorporated into the Indian Statute Book;

(iii) Voluntary organizations should be authorized to file complaints about the entering into of benami transaction and the District Judges should be designated as Tribunals. Even Gram Nayalayas recommended by the Law Commission may also be utilized for this purpose;

(iv) as both the benamidar and the true owner are equal participants to a criminal transaction, by prohibiting the true owner�s right to recover property held benami as provided in the Ordinance will be provided for an undue enrichment to the benamidar. As such, the Commission has suggested that the properties should be acquired form him by resorting to a procedure analogous to Chapter XXA of the Income-tax Act, 1961.It has been suggested that the same action has to be taken when a benamidar retransfers the property back to the true owner for an apparent or no consideration to circumvent the provisions of the Ordinance;

(v) in addition to section 82 of the Indian Trusts Act, 1882, as provided in the Ordinance, sections 81 and 94 of that Act should also be omitted;

(vi) appointment of an authority, like the Charity Commissioner, for supervising private trusts should be provided for.

(5) The recommendations of the Law commission have been examined. It is felt that all the recommendations of the Law Commission , except the recommendation regarding authorizing voluntary organizations to file complaints before Tribunals and the appointment of an authority , like the Charity Commissioner, for supervising private trusts, may be specifically provided in the Bill, and the other two recommendations would, it is felt, come into effect automatically as a result of the prohibition of benami transactions and the provision for acquisition of all properties held benami. The Bill accordingly provides for the following, among other things, namely: --

(a) entering into benami transactions after the commencement of the new law will be an offence, with an exception for the transfer of properties by the husband or father for the benefit of the wife or unmarried daughters;

(b) all the properties held benami will be subject to acquisition by such authority, in such manner and after following such procedure, as may be prescribed by rules under the proposed legislation. As a result of the provisions of the Ordinance and the prohibition of entering into benami transactions, the benamidar would be acquiring the rights to the property by the mere lending of his name and without investing any money for the purchase of such property. Accordingly, it is provided that no amount shall be payable for the acquisition of any property held benami:

(c) Sections 81 and 94 of the Indian Trusts Act, 1882, shall also be repealed.

(6) The Bill seeks to achieve the above object.

Act 45 of 1988

The Bill was passed by both the Houses of Parliament and it received the assent of the President of 5^th September 1988 and became the Benami transaction (Prohibition) Act, 1988 (45 of 1988).

[5^TH September, 1988]

An Act to prohibit benami transactions and the right to recover property held benami for matters connected therewith or incidental thereto

BE it enacted by Parliament in the Thirty-ninth Year of the Republic of India as follows: --

(1) This Act may be called the Benami Transactions (Prohibition) Act, 1988.

(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) The provisions of sections 3m 5 and 8 shall come into force at once, and the remaining provisions of this Act shall be deemed to have come into force on the 19^th day of May , 1988.

In this Act, unless the context otherwise requires, --

(a) "Benami transaction" means any transaction in which property is transferred to one person for a consideration paid or provided by another person:

(b) "prescribed" means prescribed by rules made under this Act;

(c) Property means property of any kind, whether movable or immovable, tangible or intangible, and includes any right or interest in such property.

Comments: It may be noted that the Act is a piece of prohibitory legislation and it prohibits benami transactions

subject to stated exceptions and makes such transactions punishable and also prohibits the right to defenses against recovery of benami transactions as defined in S. 2(a) of the Act. The Parliament has jurisdiction to pass a declaratory legislation. As a result of the provisions of the Act all properties held benami at the moment of the Act coming into force may be affected irrespective of their beginning, duration and origin. This will be so even if the legislation is not retrospective but only retroactive. Mithilesh Kumari v. Prem Behari Khare AIR 1989 SUPREME COURT 1247

(1) No person shall enter into any benami transaction.

(2) Nothing in sub-section (1) shall apply to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter.

(3) Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.

(4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2of 1974), an offence under this section shall be non-cognizable and bailable.

(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property.

(2) No defense based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property.

(3) Nothing in this section shall apply-

(a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property is held for the benefit of the coparceners in the family; or

(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity.

COMMENTS

(i) Sub-section (1) of section 4 has no application to the claim made in the suit as this is not a suit filed by or on behalf of defendant No.1 against defendant No.2 or the legal representatives of defendant No..2, instead it is a suit filed by a third party for specific performance of the suit contract against the real owner as well as benamidar, Murlidhar Bapuji Valve v. Yallappa Lalu Chaugule, AIR 1994 Bom 358.

(ii) The defense raised by the contesting respondents that the transaction of the sale under the sale deed dated 9^th October, 1957 executed in favor of the appellants was a benami transaction is prohibited in view of section 4(2) of the Benami Transactions (Prohibition) Act, 1988; Duvuru Mohand Reddy v. Alluru Nagi Reddy, AIR 1994 SC 1647.

(iii) The defense taken by the defendant that the plot in fact was purchased by him in the name of his brother i.e. the plot was purchased benami, cannot be allowed by virtue of section4(2) of the Benami Transactions (Prohibition) Act, 1988; Om Prakash Rawal v. Justice Amrit Lal Bahri, AIR 1994 HP 27.

(iv) Under section 88 of Indian Trusts Act, an agent or other person bound is in a fiduciary character to protect the interest of the principal and the former would hold the property for the benefit of the principal or the person in whose behalf he acted as an agent. Held that a real purchaser is the respondent, the petitioner as an agent and power of attorney had purchased the property but ostensibly had his name entered in the sale certificate fraudulently and without consent of the principal and the question of benami does not arise though section 4 prohibits such a plea; P. V. Sankara Karup v. Leelavathy Nambiar, AIR 1994 SC 2694.

(v) A coparcenery is purely a creature of law and it cannot be created by act of parties whereas a composite family is the result of an agreement express or implied. There are incidents to the constitution of a composite family, but all incidents are consequences of the agreement between the parties. Held that exception is section4(3) could not be attracted in the present case of an alleged composite family; B. Rajagopal Reddy v. Padmini Chandrasekharan, AIR 1990 Mad 353.

(vi) On coming into force of the Benami Transactions (Prohibition) Act, defense raised for the proof of the fact that the property held by a person is in the capacity of a benamidar is expressly prohibited. Neither the court is permitted in law to consider such defense nor to record its findings. Held that the Income-tax Deptt. would be prohibited from raising a defense that the suit property held by the wife is benami and the real owner is her husband; Smt. Khateeja Bai v. Union of India, AIR 1994 NOC 136 MP.

(vii) The plaintiff cannot lay any claim in view of section 4 to the house on the ground that they stand in the name of step mother benami for her deceased father, Baghyavathi v. Lakahmikathammal, AIR 1993 Mad 346.

(viii) The burden of showing that a transfer is a benami transaction lies on the person who asserts that is such a transaction. The governing principal for determining the question whether a transaction is benami or not is to be proved by showing that the purchase money came from a person other than the person in whose favor the property is transferred . The intention of the person who contributed towards the money has to be inferred from the circumstances and the relationship of the parties and the motive governing their action in bringing about the transaction and their subsequent conduct; Mahinder Singh v. Pardaman Singh, AIR 1992 Del 357.

(ix) In view of section 4, there is a total prohibition against any suit based on benami transaction and the plaintiff-respondent is not entitled to get any decree in such suit or in appeal, an appeal being a constitution of suit and in the present case the appeal was pending before this court. In s suit for recovery of benami property if any appeal is pending on the date of coming into force of section 4 the appellant court can take into account the subsequent legislative changes; Om Prakash v. Jai Prakah, AIR 1992 SC 885.

(x) Section 4 of the Benami Transaction (Prohibition ) Act, must be taken to relate of section 2 of the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988. It is clear that in spite of the recommendation of the Law Commission of India to bar institution of suits only, the Ordinance making authority has thought if it to bar other proceedings also and has also provided in express words barring of all claims and actions to enforce the right of a person alleging to be the real owner against the benemidar. The Legislature by using the expression �shall lie� made departure from the usual expression �shall be institute� clearly demonstrate its resolve to regulate all such suits, claims or actions also which would be lying in the court on the date of its commencement; Urmila Bala Dasi v. Probodh Chandra Ghosh, AIR Cal 283.

(xi) The expression any property held benami is not limited to any particular time, date or duration i.e. the Benami Transactions (Prohibition) Act, 1988 is retrospective in operation. Once the property is found to have been held benami no suit, claim or action to enforce any right in respect thereof shall lie. Sub-section (2) of section 4 similarly nullifies the defenses based on any right in respect of any property held benami. Section 4 in its sweep envisages past benami transaction also within its retroactivity. In this sence the Act is both a penal and a disqualifying statute. Held that as the appeal was pending in Supreme Court on commencement of the Benami Transactions (Prohibition) Act, 1988, the matter becomes sub-judice and thereafter the �Supreme Court� had seisin of the whole case and the decree passed by the lower courts annihilated and the suit dismissed; Mithilesh Kumari v. Prem Behari Khare, AIR 1989 SC 1247.

(xii) The benamidar before the enactment of Benami Transactions (Prohibition) Act, 1988 could not have any right, title and interest in the property which the benamidar could convey. By the principle of fictional relation back as propounded by the Supreme Court in Mithlesh Kumari, the benamidar should be deemed to have title to the property on the date he executed the deed or release. Held that Surendra Kumar was the benamidar and in point of act on the date of execution of the deed of release he had no right or interest in the property; Ratanlal Bansilal v. Kishorilal Goenka, AIR 1993 Cal 144.

(xiii) It has been held that the suit is not hit by sections 2 and 4 of the Benami Transactions (Prohibition) Act, 1988 as the plaintiff has not alleged that the defendant No 1 i.e. one of the partners was or is a benamidar or that the money was paid by the plaintiff or that the property was purchased in the name of the defendant No.1 as benamidar apart from that the under section 14 and 15 of the Partnership Act, a partnership can acquire asserts in the name of partners and these sections have not been deleted by the Benami Transactions (Prohibition) Act, 1988; Md. Hasan Hashmi v. Smt. Kaberi Roy, AIR 1993 Cal 70.

(xiv) Section 4 takes into its ambit the right of a real owner vis-�-vis ostensible owner. The prohibition under section 4(1) and (2) does not prohibit the right of a third party to get a declaration. The third party has the right to raise the contention that someone was the real transferee and the sale deed was only executed in the name of the transferee who was a benamidar, Gopal Bariha v. Satyanarayan Das, AIR 1991 Ori 131.

(xv) Section 2 of the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988 relates to section 4 of the Benami Transaction (Prohibition) Act, 1988 and according to section 2 of the Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988, action means a civil proceeding commenced by "writ" or in such other manner, as may be prescribed by rules of court but does not include a criminal proceeding, therefore the term "action" is wide enough to take in an appeal or a second appeal; Velayudhan Ramkrishan v. Rajeev, AIR 1989 Ker 12.

(xvi) In the context and setting of section 4 the word �held � has to be understood as "possessed or occupied". If the possession or occupation is not benami, section 4 can have no application and as a sham transaction or bipartite transaction is not a benami. Section 4 does not apply to such a transaction; Ouseph Chacko v. Raman Nair, AIR 1989 Ker 317.

(xvii) Section 4 and 7 of the Benami Transactions (Prohibition) Act, 1988 relate to sections 2 and 4 of the Benami Transactions(Prohibition of the Right to Recover Property) Ordinance, 1988. Both section 7 of the Benami Act and section 4 of the Benami Ordinance repeal section 82 of the Trusts Act keeping section 81 of the Trusts Act intact. Keeping in view section 81 of Trusts Act nominal transactions are not intended to be covered and are not hit by section 4;B. Rayudu, AIR 1989 AP 290.

(1) All properties held benami shall be subject to acquisition by such authority, in such manner and after following such procedure, as may be prescribed.

(2) For the removal of doubts, it is hereby declared that no amount be payable for the acquisition of any property under sub-section(1)

Nothing in this Act shall affect the provisions of Section 53 of the Transfer of Property Act, 1882 (4 of 1882), or any law relating to transfer for an illegal purpose.

(1) Sections 81, 82 and 94 of the Indian Trusts Act, 1882 (2of 1882), section 66 of the Code of Civil Procedure, 1908 (5of 1908), and section 281 A of the Income-tax Act, 1961(43 of 1961). Are hereby repealed.

(2) For the removal of doubts, it is hereby declared that nothing in sub-section (1) shall affect the continued operation of section 281 A of the Income �tax Act, 1961 (43 of 1961), in the State of Jammu and Kashmir.

(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the purposes of this Act.

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-

(a) the authority competent to acquire properties under section5;

(b) the manner in which, and the procedure to be followed for, the acquisition of properties under section5;

(c) any other matter which is required to be, or may be, prescribed

(3) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

(1) The Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988 (Ordinance 2 of 1988), is hereby repealed.

(2) Notwithstanding such repeal, anything done or any action taken under the said Ordinance shall be deemed to have been done or taken under the corresponding provisions of this Act.