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Report No. 57

2.9. Uncertainty as to how far doctrine of benami survivors independently of the Trusts Act.-

It is not very clear whether the doctrine of benami should now be regarded as resting on this provision of the Trusts Act, or whether the doctrine is to be treated as independent of it. Judicial decisions relevant to benami, though they occasionally refer to the provision in the Trusts Act, do not usually proceed to deal specifically with the above question. It should be noted that if the former view is correct, then the title passes to the benamidar, though he holds the property in trust. If the latter view is correct, then title does not pass at all to the benamidar. The latter view appears to be favoured by Mulla1 and by some cases.2 The former view has the support of observations in some cases.3

1. Cf. Mulla Transfer of Property, (1966), Commentary on section 53, p. 272.

2. Para. 2.12, infra.

3. Paras. 2.13 and 2.15, infra.

2.10. In an Oudh case1, the Additional Judicial Commissioners discussed the case law on the subject, and the proposition was laid down that section 82, Trusts Act, appears to throw the burden of proof of benami on the person who alleges that the transaction is benami, while previously (i.e., before the Act) where one person paid the consideration, he could throw the burden of disproof on the other side.

1. Raj Kunwar v. Rani Maharaj Kunwar, AIR 1925 Oudh 243.

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