Law:

Section:

(a) Benami transaction-------Determination of question as to whether transaction was Benami or not---Factors to be taken into consideration---Burden of proof---Principles. For determining the question, whether a transaction is a Benami transaction or not, inter alia the following factors are to be taken into consideration:- (i) source of consideration; (ii) from whose custody the original title deed and other documents came in evidence; (iii) who is in possession of the suit property; and (iv) motive for the Benami transaction. The initial burden of proof is on the party who alleges that an ostensible owner is a Benamidar for him and that the weakness in the defence evidence would not relieve a plaintiff from discharging the above burden of proof. However, the burden of proof may shift from one party to the other during the trial of a suit. Once the burden of proof is shifted from a plaintiff on a defendant and if he fails to discharge the burden of proof so shifted on him, the plaintiff shall succeed. The question whether a transaction is Benami in character or not has to be decided keeping in view a number of factors/considerations. The source of purchase money is not conclusive in favour of the Benami character of a transaction though it is an important criterion and that where there are other circumstances showing that the purchaser intended the property to belong to the person in whose favour the conveyance was made, the essence of Benami being the intention of the purchaser, the Court must give effect to such an intention. In a Benami transaction the actual possession of the property or receipt of rents of the property is most important. The question whether a particular sale is Benami or not, is largely one of fact, and for determining this question, no absolute formula or acid test uniformally applicable in all situations, can be laid down. Following are considerations for deciding the question of Benami character of a transaction. (i) It is the duty of the party who raises such plea to prove such plea by adducing cogent, legal, relevant and unimpeachable evidence of definitiveness. The Court is not required to decide this plea on the basis of…

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