The burden of proving a transfer as a benami transaction lies on the person asserting it. The intention of the parties and the source of purchase money are crucial in determining whether a transaction is benami.

( 1 ) [ed. Facts. Plaintiff alleged that he and his mother and brothers were members of HUF and suit property was purchased by him and it was taken in the name of mother and was at least HUF and it could not be willed away in the name of Deft. no. 4. The defence was that suit was barrad by S. 4 of Benami Transaction (P of R to R) Act and suit should be dismissed on preliminary objection. S. 4 makes an exception in the case of HUF property and it was held that matter could not be summarily decided]. After detailing above facts, judgment proceeds ;

( 2 ) THE burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction. The governing principle for determing the question whether a transaction is benami or not is to be proved by proving that the purchase money came from a person other than the person in whose favour the property is transferred. In fact the purchase is prima facie to be inferred. The intention of the person who contributed towards the money has to be inferred from the circumstances and relationship of the parties and the motive governing their action in bringing about the transaction and their subsequent conduct. That is as per Thakur Bhim Singh (D) vs. Thakur Kan Singh (1983)3 S. C. C. 72. The plaintiff in this case has pleaded that the house in question was purchased by the plaintiff out of HUF funds. It was out of the love and affection and respect to the mother that he got the sale deed effected in her name. Sahib Kaur had in fact no independent source of income. She was managing the agricultural land and administering the property which was a joint property of the plaintiff and defendants 1 and 2. Therefore, she had no right to bequeath this property which was purchased from the H. U. F. Funds. Mr. Lonial, learned counsel therefore, contended that the suit as such will not be prohibited nor hit u/s. 4 (1) of the said Act. Sahib Kaur was holding the property as trustee for her sons. This can be proved from the fact that the purchase money was given by the plaintiff. The intention of the parties can be inferred when the plaintiff out of love for mother even though contributed the purchase money still got the plot registered in the name of his mother. This proves the relationship of the plaintiff and Sahib Kaur. By the surrounding circumstances he will prove that his case falls under the exception clause of S. 4 of the Act. The assertion of the defendant that the property was purchased by Sahib Kaur cannot be accepted because Sahib Kaur had no independent source of income. Mr. Lonial therefore contended that the mere fact that he has used the word benami would not throw his case out of the Court nor hit u/s. 4 of the Act because he can prima facie establish that the plaintiff lended the purchase money for the benefit of himself and defendants 1 and 2, it was because of the relationship between him and Sahib Kaur that he recorded her name in the sale deed.

( 3 ) MR. Lonial in order to strengthen his argument has placed reliance on the dicision of the Supreme Court in the case of the Mithilesh Kumar and Anr. vs. Prem Behari Khare AIR 1989 S. C. 1247. In that case, the the Court was dealing with the applicability of the Act retrospectively. The decree passed by the trial court as well as affirmed by the appellate court was set aside because there was a finding based on the appreciation of the material on record that the transaction was benami. But in the case in hand, it is yet to be proved by a reliable evidence as to whether the property in suit was purchased benami or not and what were the intention of the parties when the same was purchased. For arriving at this conclusion one has to go through the merits of the case. Before arriving at any decision it is necessary that the parties should lead evidence. Merely on the ground of Section 4 itself the suit cannot be thrown out at this prelimnary stage. The question whether a female can be a coparcener