BHIM SINGH &.ANR. versus KAN SINGH

Citation: [1980] 2 S.C.R. 628 · Decided: 21-12-1979 · Supreme Court of India · Bench: P.N. SHINGAL · Disposal: Case Partly allowed

Cited by 2 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

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D 
628 
BHIM SINGH &.ANR. 
v. 
KAN SINGH 
(AND VICE VERSA) 
December 21, 1979 
fP. N. SHINGHAL AND E. S. VENKAlARAMIAII, JJ.] 
Benanii-What is-Tests for deciding benami transactions. 
Plaintiff no. 1 and plaintiff no. 2 were father and son while defendant wa5 
the brother of plaintiff no. 1. 
The plaintiffs in their suit against the defendanl 
claimed that the suit house in Which the defendant WM living, 
belonged 
to 
them by virtue of a patta issued in their names. They alleged that the deceased 
brother of plaintiff no. 1, who remain'ed a bar-Jielor till his death, loved plaintiff 
no. 2 as bis son and had thought of adopting plaintiff no. 2 but since he· died 
all of a sudden it could not be done. The defendant on the other band claimed 
that he and his deceased brother lived as m'embers of a joint family after the 
partition of their family that as a rellult of the joint efforts of himself and his 
deceased brother the Ma-haraja, of Bikaner sanctioned sale cf the house io 
them, that the purchase money v;as paid out of their joint income but that the 
patta wa.s granted in the names of the plaintiffs du'e t_g political 
reasons and 
therefore the plaintiffs were at the most benamidars. 
The trial court held that the house was acquired by the deceas'ed brother 
from the Government of Bikaner for the plaintiffs and the patta was granted in 
E 
favour of the plaintiffs and that they were in its J>0S5csi;ion till 195fj. It rejected 
the defendant's claim that it was acquired with the joint funds of him~clf z-nd 
his deceased brother. 
On appeal the High Court held that the house bad been purchased by the 
deceased brother out of his own money in the names of the plaintiffs without 
any intention to confer any beneficial interest on them a.nd on his d'eath plain· 
F 
tiff no. l and the defendant su=eded jointly to the estate as his heirs. 
H 
HELD : The transaction under 'Which the· patta was obtained was 
not 
a 
benami transaction. The house WM w.:quired by the deceased brother with his 
money and with the intention of constituting plaintiff no. 2 as the absolute owner 
thereof. 
[648G] 
Where a person buys property with his own money but in the name of 
another person without any intention to benefit such other person, the transac· 
tion is called benami. In that case the ~eree holcb!I the property for the 
benefit of the person who hali. contributed the purchase money and he is a real 
owner. T·he second case which ts looeely termed a benami tr.ansaction is a 
~ase where a person, Who is the owner of the property, executes a conveyance 
in favour of another without the intention of transferring the title to the pro-
perty thereund'er. 
In this case the transferor continues to be the real owner. 
The difference between the two kinds of benamj transactions is tha.t whereas in 
the former there is an operative tramfer from the tramferor to the transferee, 
though the transferee holds the property for tbe benefit of the person who bas 
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BHIM SINGH v. KAN SINGH (Venkataramiah J.) 
629 
contributed the purchase mon·ey, in the latter there is no operative transfer at 
all and the title rests with the transferor notwithstanding the execution of the 
conveyance. One common feature in both cases is that the real title is divorced 
from the ostensible title and they are vested in different persons. The queition 
whether a transaction is a benami transaction'. or not depends upon the intention 
of the p'erson who has contributed the purchase money in the former case, and 
upon the intention of the person who has executed the conveyance in the latter 
case. 
The principle underlying the former case is statutorily r'ecognized 
in 
section 82 of the Indian Trust Act, 1882. 
[638B-E] 
Mcenakshi Mills, Madurai 
v.. 
The r:ommissioner of Income-Tax, Madras, 
(1956] S.C.R. 691 at p. 722; Mohammad Sadiq Ali Khan v. Fakhr Jahan Begam 
&: Ors. 59 I.A. 1; Manrnohan Das & Ors. v. Mr. Ramdai & Anr. A.I.R. 1931 
P. C. 175; Jaydayal Poddar (deceased) through /iis L.Rs. & Anr. v. Mst. Bibi 
• Hazra & Ors. [1974] 2 S.C.R. 90 referred to. 
2. The prinlciples governing the determination of the question whether a 
transfer is a benami or not are : ( 1) The burden: of showing that a. transfer is 
a benami transaction lies on th'e person who asserts that it is such a transaction; 
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(2) if it is proved that the purchase money came from a person other tha.n the 
person in whose fa\.uur the: property 

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