2023 SCMR 572
In cases of alleged benami transaction , there may be a ground for suspicion , nevertheless , the Court's decision must not be based on suspicion or conjecture , but on legal grounds . We , therefore , wish to say that it is one of the essential elements of a fair trial that the law must be applied to any transaction in the light of its ordinary course of human conduct . Keeping this in mind when we analyze the benami transaction , we find that there are three persons involved in it -the seller , the real owner , and the ostensible owner or benamidar , and , in the ordinary course of human conduct , it encompasses two different contracts , one is the contract , express or implied , between the ostensible owner and the purchaser ( real owner ) and it specifically mentions two things . First , the real owner expresses his desire or compulsion ( also called motive ) and obtains permission from the ostensible owner ( Benamidar ) to purchase the property in his name after paying the consideration amount to the seller , and second , it talks about the consent of the ostensible owner ( Benamidar ) that whenever the real owner demands , he will be bound to transfer the property to him . The other is a contract between the ostensible owner ( Benamidar ) and the seller of the property . It is important to note here that both the above contracts , though differ from each other in their legal character and incidents , complement each other to establish benami transaction , and thus , in cases of such transaction , the plaintiff must first state them , in detail , in his plaint , and then prove them by legal testimony , and failure to do so is fatal . Mindful of this legal position , we have perused the pleadings and the evidence brought on record and find that they fall short of the material facts . mentioned above . This omission cannot be condoned and that alone is sufficient to reject the claim of the appellants .
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