Friday 6 March 2015

HAD SUPREME COURT TAKEN AWAY WHAT WAS GIVEN BY ACT?


BENAMI TRANSACTIONS (PROHIBITION) ACT’ 1988 defines ‘Benami Transaction’ as any transaction, in which a property is transferred to one person for a consideration provided by another.

This definition is very narrow and restrictive as what we have understood the term ‘Benami’ would include ‘not for the benefit of the person’ besides the provision of money by another.

Section 3 of this Act, prohibits such transactions and makes it a criminal offence. Section 5 empowers the State to acquire the properties, conveyed benami. The object behind these penal provisions is obvious. That it seeks to discourage laundering the ill-gotten money with the purchase of properties in the names of others.


However it is not in all cases, the benami transactions are born out of such malafide intentions. It is not uncommon for a man to purchase property in the name of his family members out of genuine love and affection. It is necessary to insulate and protect such transactions, at least in the case of transactions made in the name of wife and unmarried daughters. In our societal set up, womenfolk very often takes the responsibility of running the home and rearing children, leaving the men the burden of earning money. In such a scenario it is nothing unethical for the husband to purchase property in the name of his wife as she being a ‘home-maker’ is entitled to a share of what he earns. Similarly a girl child may not get the same kind of attention and education as a boy and it is risky to leave her as a dependent of someone else. Hence it is to be encouraged that man, earning money to buy properties in the names of his wife and daughters. Sure, such ownership will bring a sense of security and economic independence to the women, who are denied an opportunity to earn money.

In my assumption, the legislature having this in mind had taken care to introduce Section 3(2) to exclude the act of purchasing property in the name of wife or unmarried daughter from the prohibition of Section 3(1). In view of such exclusion, it is not prohibited for anyone to purchase property in the name of his wife or unmarried daughter. If it is not prohibited, the natural corollary is that it is not an offence and that no acquisition can be resorted to.

There is another objective, which this Act seeks to achieve. Section 4 prohibits any person from prosecuting or defending any litigation on the claim that the property was benami. Earlier it was not possible for any one to rest assure about the ownership of a person, holding a title deed in his name. One may not know when a stranger would file a suit, claiming ownership that he provided money for the purchase of the property!

Section 4 at one stroke has put an end to such claims and reducing the litigations on the basis of benami, thus removing the uncertainty in purchasing the properties.


However the Supreme Court in the case of Nand Kishore Mehra Vs Sushila Mehra reported in 1995 (4) SCC 572 = AIR 1995 SC 2145 has brought back the uncertainty and even worse dealt a heavy blow to the economic independence of women. The damage is still undone.

In this case, the Supreme Court was persuaded to question - Whether the prohibition of Section 4 is applicable to the benami transactions of purchasing a property by a man in the name of his wife or unmarried daughter?

It is an irony that the provisions of Section 3 (2), which strives to bring some relief to the women is used by the Supreme Court to take away the shield protecting women against the claim of their husbands / fathers or even a stranger transferee. In view of this Judgment, not only Nand Kishore Mehra but many other husbands succeeded in the following years to deprive their wives/ daughters of their properties.

The Supreme Court in my respectful opinion, failed to take note that the exclusion in Section 3(2) reads ‘Nothing in sub-section (1) shall apply to –‘ and therefore excludes a benami transaction in the name of wife and unmarried daughter only from the prohibition in Section 3(1). The said clause cannot be allowed to be taken advantage by men to defeat the right of women.

What was excluded specifically from Section 3(1) cannot be meant to exclude from Section 2(a) or Section 4.

One may doubt how to seize the property from the hands of a wife, if it is found that the husband has purchased a property from his ill-gotten money. Section 3(2) further speaks about a presumption and it is always possible to prove that the purchase in the name of this wife was not for her bonafide benefit and thus removing the protection. The result- criminal prosecution and acquisition!

The Supreme Court has drawn inspiration from the presumption clause in Section 3(2) to make it applicable to Section 4. The presumption is appropriately placed in Section 3(2) to bring within the ambit of criminal act, if the transaction in favour of the wife is not bonafide. No specific presumption is necessary for the operation of Section 4 as it is already established by the consistent judicial precedents that the burden is heavily on the shoulders of the person alleging benami to prove the ingredients of benami, which includes among others that ‘the property was not purchased for the benefit of benami’

The ratio of Nand Kishore Mehra stands the test of time for about two decades but my understanding of the provisions of the Benami Transactions (Prohibition) Act’1988 is persuading me to say that it requires a reconsideration…

Madurai

10/04/14

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