Benami amendment act is not retrospective so the earlier mutuation cannot be cancelled.
Benami sampati
Sir My father purchased some land in years 1988 and 1990 in the name of my mother,who was house wife.my mother expired about 4 years back.we are 4 brothers.After the death of our mother ,that land was transferred to us four brothers.Mutation for this was done in 2014. Now our father filled a suit for Declarration saying that it was a Benami property as my mother was house wife,she was having no source of income.our father request the court that defendant admit the claim of plantif.He wants to get the land back to his name. Is his claim is right as per law ? What should I do ? Can this property be declared as Benami ? Is there any law regarding taking back the property for which mutation has been done?
Asked 7 years ago in Property Law
Religion: Hindu
10 Answers
If the husband is able to prove that the property he purchased in his wife’s name is for his sole benefit, then he can claim the benami property completely as his own and can dispose of the whole of it as per his wish.
One may refer to the following judgements in this regard: Nand Kishore Mehra v. Sushila Mehra (AIR 1995 SC 2145) and Nand Kishore Mehra v. Smt. Sushila Mehra (80 (1999) DLT 670)
father bought land in mother name for benefit of joint family
2) declaratory suit by father is maintainable
He will not succeed unless he is able to prove that though this property was bought in the name of your mother, he made this purchase for his sole and exclusive benefit.
Having said the above, the suit filed by him is maintainable.
Dear Sir,
If the payment of the sale deed is given by father from his account then it's his property ,and he can transfer or cannot as per his wish, if you and your brother have contributed then you can file a suit for declaration of title against him ,the court found with evidence then you can claim your share
Yes father can file a declaration suit as he has paid consideration for the land. You can contest the suit or can settle with father as more of family dispute.
Since it was in name of mother it won't be benami as husband can purchase property in name of wife.
Dear Client,
AS per law, person who contributes in purchase is actual owner and on this ground only, court will order declaration of ownership in his name.
Mutation dose not confer any title.
1. on and from 1.11.16 no person is allowed to file any suit claiming a property which is held benami in some other person's name
2. thus the suit would be barred under the Benami Transaction Prohibition Act
3. however please keep in mind that prior to amendment of Benami transaction act in the year 2016, the law then prevailing allowed husband to purchase a property in the name of his wife provided the property was purchased for the benefit of the wife
4. so if the property was purchased benami for the benefit of your mother by your father, then your mother would become the absolute owner of the property and upon her demise the property would devolve on her legal heirs who are her husband and children
5. so in your case your father cannot claim the entire property to the exclusion of you and your brothers just because he had contributed funds for its purchase. If he has filed a suit stating that the property is actually owned by him and the wife was only a benamidar then clearly his suit is liable to be dismissed u/s 4 of Benami Transaction Act [as amended on 1.11.16]
6. you are advised to take out an application for dismissal of the father's suit on above ground
Let me modify my above response
i just checked the Benami Transaction Prohibition Act
it says that a property purchased by an individual in the name of his wife or children is not a benami transaction
so your father can file the suit for declaration
so the ground of the property being benami cannot be availed
however the mutation in favour of 4 sons was done in 2014
the mutation in public records is within public knowledge and thus your father was also deemed to have knowledge about it
if he had a claim in the property he was required to file a suit for declaration within 3 years from the date when the mutation was effected in his sons' names, which he did not
so if he has filed the suit now, then it would be barred by limitation
it is however to be kept in mind that for the sons to make the above claim of the suit being barred by limitation, they should be having the possession of the land also from the date of mutation
He can make a claim to get the properties back but chances are low,
you have a good case,
i advise you to fight the battle, means, contest the case and get the properties
This property cannot be treated as benami property since he purchased on his wife's name and she becomes the absolute owner.
Moreover he had remained silent for all these years when the property was physically transferred to his sons name. So it is barred by limitation also.
In fact he had a share in the property which he failed to utilise, he can now claim only his share in the property
