my father and mother purchased two adjoining plots in name of my elder siblings in 1982.both were minor and not earning at that time. to build a family house in which my elder brothers family and my parents and myself lived for 25 years my father died last year .now i want to claim my share in property as one of the elder sibling is refusing to give any share . it is of course case of benami transaction in the names of minors but they were holdindg it for benefit of entire family what are legal documents i need give to court to prove that i should also get share in property?
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1. Since it was purchased in the banam of your siblings you cannot claim your share in it.
2.However you can continue to stay in the said property and in the event your sibling file any suit for eviction against you, you can take the defence of adverse possession.
1) since property is standing in name of elder siblings you have no share in said property .
2) in the event you move court claiming share in said plots chances of success are bleak .
3) let your brother take legal proceedings for your eviction . you can claim adverse possession as defence
my dear expert lawyers please go throughly through benami transaction act normal rule is any suit to recover property held benami is not maintainable due to statutory bar laid down in S.3 (which entails rejection u/o 7 R11) However there is an exception carved out in S.4 of the same act which says that where a property is held by a coparcener of a Hindu Undivided Family, for the benefit of other coparcenors then the same may be recovered. so please study section 4 exception properly and help me out
Hi, what document do you have to show that it was purchased in the benami ? you have to prove before the court of law............. property purchased for the benefit of minor and they become major they become absolute owner of the property.
1) As per clause (a) of sub-section (1) of Section 3 of the Benami Trnasactions Act, 1988, the property may be held in the name of coparcener for the benefit of coparceners in the family and any suit, claim or action against coparcener is not prohibited in terms of clause (a) of sub-section (3) of Section 4 of the Act, 1988.
2) you will have to plead that property was purchased in the name of the siblings and the siblings were coparcener in a Hindu undivided family and were holding the property for the benefit of coparceners in the family
3) you will have to plead that your brothers were a trustee or standing in a fiduciary capacity and the property was holding for the benefit of other persons for whom he was a trustee or towards the members whom he stood in such capacity.
4) you would also have to emphasis that your brother could not have purchased property out of his funds as he was minor at that time and not earning .
What is said is correct but how will you prove that it was bought by parents for the benefit of the family .you will have to prove that it was joint family and for benefit it was bought in their names.you can plead that since they told that you will,take dared it was bought in their names.they had no earnings at that time
1. The Querist is partially right in stating "please go throughly through benami transaction act normal rule is any suit to recover property held benami is not maintainable".
2. The name of the Act is not Benami Transaction Act but ' The Benami Transactions (Prohobition) Act,1988 which is applicable from the year 1988 and any benami transaction made after enactment of the act in the year 1988 is illegal for which, in such cases, the suit to recover the property from the Benalder is not maintenable,
3. However, in the instant case, the property was purchased in the year 1982 when benami transaction was legal for which you can very well claim your share in the property since the consideration for buying the property was paid by your father as your brother was infant at that time,
4. While considering whether a property is benami or not, the Court is usually guided by the following circumstances
a) the source from which the purchase money came,
b) the nature and possession of the property, after the purchase,
c) motive, if any, for giving the transaction a benami colour,
d) the position of the parties and relationship, if any, between the claimant and the alleged benamdar,
e) the custody of the title Deeds after the sale, and
f) the conduct of the parties concerned in dealing with the property after the sale.
(Rajinder prashad Malik Vs. Shanti Devi Malik A.I.R. 2003 P & H.26),
5. Based on the above you can very well file a partition suit claiming your share of the property owned by your father purchased in the Benam of your elder brothers,
6. It is a good case to win.
The fund in purchasing the property in the name of your elder siblings in the year 1982 was raised out of joint family pool or parents' independent income, in the latter case you can claim only on the said property,if parents died intestate, and in the former case, you are entitled to get your share in the ancestral property despite having purchased the said property in the name of your elder siblings using joint family fund by your parents.
Thanking you,
You cannot claim ur share in the said property coz it was purchased as a benami property in the name of ur elder bros when they were minors and when they became major they became the absolute owner of the property so in that case u do not have any right in the said property nw u can only wait for ur elder sibling to move to the court for filing eviction petition against u then u can take the defence of the adverse possession till then just keep living there in the said property,
