A benami property can be solely bought for personal benefit
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I had bought a flat and added my wife as a joint holder, but she did not make any payment towards it. In my Will, can I bequeath 100% of the property, or since my wife is the joint holder, only 50%?
As per the provisions of the Benami Transactions (Prohibition) Act, 1988, when a property is transferred to a person for a consideration, paid or provided by another person, then such a transaction is known as a benami transaction.
The person in whose name the property is recorded, becomes the real owner and the person who actually paid the consideration is prohibited from bringing any kind of action to recover such property. Benami transactions are prohibited by law and are punishable under the Act.
But an exception is given under section 3(2) of the Act, for transactions where the property is purchased by any person in the name of his wife or unmarried daughter. Section 3(2) also provides that, unless the contrary is proved, there is a presumption that such property had been purchased by such person for the benefit of the wife or the unmarried daughter.
Thus, a person who has purchased such a property in the name of his wife or unmarried daughter can, by appropriate evidence, prove that the property was not purchased for the benefit of his wife or unmarried daughter, and assert his true ownership rights in the property.
So, 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 property completely, and can dispose it as per his wish. (Please see Nand Kishore Mehra v. Sushila Mehra (AIR 1995 SC 2145) and Nand Kishore Mehra v. Sushila Mehra (80 (1999) DLT 670.)
In such a situation, the intention of the husband will be ascertained from the surrounding facts and circumstances, to determine the real ownership. Some of these would be: the source of purchase money; the nature and possession of the property, after the purchase; the motive or reason for giving the transaction a benami colour; the custody of title deeds after the sale; and the conduct of parties concerned in dealing with the property after the sale, including whether the husband accounted for the property in his own tax returns and not that of his wife.
Thus, if you are able to prove that the property was not purchased for the benefit of your wife, and it was always intended that the real ownership lies with you, you would have the right to bequeath the entire property in your Will to a person of your choice. You should specifically state in your Will that the property was purchased out of your personal funds and that your wife’s name was added only for convenience and not purchased for her benefit.
Maintain appropriate records that are available to your executor and heirs, to prove your real ownership of the property, if your Will is challenged.
Queries and views at firstname.lastname@example.org