Legal Question in Real Estate Law in India

My son is a Benami holder of the house/property in my (real owner) possession. I am the father & the real owner. My son is Not in possession.I made the entire payment for the purchase as can be proved from my bank account.

I am made to understand that since my son is not in possession of the Benami property he (my son) CANNOT sue me for possession under the Benami act 1988 because the preamble to the Act states " An Act to prohibit benami transactions & the right to recover property held benami for matters connected therewith or incidental thereto" .

The house is already in my (real owner's) exclusive possession so the Act will not apply because as per the preamble of the Act itself, the Act " only prohibits the right to recover property held benami.". I am not exercising any right to recover the house from my son because ,I am already in exclusive possession of the house & to the exclusion of my son.

My query is whether

(i) I have been CORRECTLY advised?

(ii)If not under which section of the Benami Act 1988 , my son may sue me as on the facts & circumstances, section 4 of the Act will NOT Apply as enumerated above.


Asked on 2/14/14, 12:14 am

1 Answer from Attorneys
Fca Prashant Chavan Expert Edge LLP

14.02.2014

Dear Sir,

If the son has acquired title to the property by virtue of you earlier signing and legally validating the transfer of the property in your son's name, the onus lies on you to prove that the property is benami, which in my view will never ever sustain in Court. You can remain in possession of the property, but the title will legally remain in the name of your son.

Regards,

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Answered on 2/14/14, 3:54 am


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