Purchase of property in joint names

In the issue of The Hindu dated May 10, 2010, one of the queries relates to the effect of purchase of properties in joint names of husband and wife. In the course of the reply to the query a statement has been made by you which reads thus:

“But the presumption in law, because of the doctrine of advancement, is that the investment in joint names or her own name is made for her benefit”.

This statement is clearly wrong and is opposed to the law prevailing in India. It is only in England that the doctrine of advancement is applicable. See in this connection Aiyar's Law Lexicon under “advancement”. I also invite your attention to the Supreme Court judgment in

Controller of Estate Duty v Aloke Mitra (1980) 126 ITR 599 at page 612 and in particular the quotation from Sura Lakshmiah Chetty's case (1925) AIR 1925 PC 181-182 — “there can be no doubt now that a purchase in India by a native of India of property in India in the name of his wife unexplained by other proved or admitted facts is to be regarded as a benami transaction by which the beneficial interest in the property is in the husband although the ostensible title is in the wife”. The Supreme Court also quoted with approval Knight Bruse LJ in Gopeekrist Gosain's case, the doctrine of advancement is not applicable in India so as to raise the question of a resulting trust. Further, it has been stated that when a property is purchased by a husband in the name of his wife or by a father in the name of his son it must be presumed that they are benamidars. If they claim it as their own by alleging that the husband or the father intended to make a gift of the property to them, the onus rests on them to establish such a gift. Support for the view can be had from para 866 page 1464 of Mayne's Hindu Law and Usage, 16th Edition which deals with doctrine of “advancement” and presumption as applicable in England and in India.

So, the presumption is otherwise than what has been stated by you and the doctrine of advancement is not applicable in India.

May I therefore request you to appropriately modify the passage extracted from your reply. The above comment is from G. Sarangan, Senior Advocate from Bangalore, is entitled to great respect. The answer referred is not so much on the doctrine of advancement but on the principle of law behind it in a transaction relating to joint property of husband and wife paid for by the husband. The presumption of benami can no longer be treated as available after the Benami Transactions (Prohibition, etc) Act. 1988. One can take an illustration of an investment by the husband in the name of his wife solely out of his own resources. After his demise with no information as to the intent of the deceased, during his lifetime, is a claim by his sons and daughters to a share in the property as legal heirs maintainable, if such a claim is resisted by the widow? I do not think so. The presumption should be that he intended to benefit his wife by acquiring the property in her name. My answer to the query in The Hindu dated May 10, 2010, that the wife could be the joint owner to the extent of her title, would not, therefore, need any modification.