Benami, Nominal Transactions and Partition under Muslim Law
An Analysis of Andhra Pradesh High Court (Pre‑Telangana) Decisions
1. Introduction
Disputes relating to partition of properties among Muslim heirs frequently raise a recurring issue: whether property standing in the name of one heir can be treated as family or matruka property and subjected to partition, or whether such a claim is barred as a benami transaction, particularly after the enactment of the Benami Transactions (Prohibition) Act, 1988.
The Andhra Pradesh High Court (prior to the bifurcation of the State) has developed a consistent and nuanced line of reasoning on this issue. A careful reading of its judgments shows that the Court does not apply a mechanical rule, but instead distinguishes between:
a true benami transaction,
a nominal or ostensible transaction, and
cases where benami is not proved at all.
This article analyses three important decisions of the Andhra Pradesh High Court which together explain the governing principles:
Mohd. Yousuf Ali v. Ghousia Begum @ Anwar Pasha, 1993 (3) ALT 51
Mohd. Jamal v. Mohd. Sharfuddin, 1998 (5) ALD 223 = 1998 (5) ALT 655
Habeeba Begum v. Gulam Rasool, 1999 (6) ALD 20 = 1999 (4) ALT 496
2. Muslim Law: No Presumption of Joint Family
At the outset, the Andhra Pradesh High Court has repeatedly emphasised a fundamental principle of Mohammedan law:
There is no concept of a joint Muslim family akin to a Hindu joint family.
There is no presumption that property acquired in the name of one family member is for the benefit of the family.
Mere living in communality or joint mess does not create joint ownership.
This principle is clearly articulated in Mohd. Jamal v. Mohd. Sharfuddin (1998), where the Court held that acquisitions by individual members of a Muslim family cannot automatically be treated as family property merely because the parties lived together.
3. Benami Transactions and the Statutory Bar under Section 4
Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 bars:
“any suit, claim or action to enforce any right in respect of any property held benami by or on behalf of a person claiming to be the real owner of such property.”
The Andhra Pradesh High Court has consistently interpreted this provision narrowly, holding that:
The bar applies only where the plaintiff sues as the ‘real owner’ of a property held in another’s name.
The Act does not bar every suit in which the word “benami” is loosely used.
A partition suit based on inheritance does not automatically attract Section 4.
4. Nominal Transactions Distinguished from Benami
A crucial doctrinal distinction drawn by the Court is between a benami transaction and a nominal or ostensible transaction.
In Mohd. Yousuf Ali v. Ghousia Begum (1993), the Court examined a case where a father purchased property in the name of his son while continuing to exercise possession and control. Although the pleadings used the word “benami”, the Court held that:
The transaction was nominal in nature.
Ownership always vested in the father.
The suit was not one by a person claiming to be the “real owner”, but a suit for partition based on succession.
Consequently, Section 4 of the Benami Act was held to be inapplicable, and the property was treated as matruka property liable to partition.
5. Partition Despite Title Standing in One Name – No Benami
The principle was further reinforced in Habeeba Begum v. Gulam Rasool (1999). In that case:
Properties stood in the name of one family member.
All parties had treated the properties as family properties.
Registered partition deeds and relinquishment deeds had been executed and acted upon.
The High Court held that:
The case was not one of benami at all.
It was a case of admitted joint ownership and completed partition transactions.
The Benami Act had no application.
The Court made it clear that property purchased in the name of one member can still be liable to partition, if intention, conduct and documentary evidence establish joint ownership.
6. When Benami Is Alleged but Not Proved
In contrast, Mohd. Jamal v. Mohd. Sharfuddin (1998) represents the third category of cases.
There, the plaintiffs alleged that Schedule ‘B’ properties standing in the name of one heir were acquired benami by the deceased ancestor. The Court held:
The burden of proving benami lies entirely on the person who asserts it.
Proof must include credible evidence of the source of consideration and enjoyment of benefits.
Oral evidence without knowledge of purchase details is insufficient.
As the plaintiffs failed to discharge this burden, the plea of benami failed, and the properties were held to be the exclusive properties of the person in whose name they stood, not liable to partition.
7. Role of Documents: Wills, Partition Deeds and Revenue Records
The judgments also clarify the evidentiary value of documents:
Unregistered partition deeds cannot be used to prove title or terms of partition.
Such documents cannot be relied upon to infer admissions of ownership.
Wills must be proved strictly in accordance with Section 68 of the Evidence Act.
Revenue records are not title deeds but carry presumptive value regarding possession.
8. Synthesis of the Jurisprudence
Taken together, these decisions establish a coherent legal position:
No presumption of jointness exists under Muslim law.
Section 4 of the Benami Act applies only where the plaintiff sues as the real owner.
Nominal transactions do not attract the statutory bar.
Property standing in one person’s name may still be liable to partition if joint ownership is proved.
Where benami is alleged, it must be strictly proved, failing which the claim for partition fails.
9. Conclusion
The Andhra Pradesh High Court’s approach avoids both extremes: it neither permits indiscriminate partition merely because parties are related, nor does it allow the Benami Act to be used as a blunt instrument to defeat legitimate inheritance claims.
Instead, the Court insists on a fact‑based inquiry, respecting the principles of Muslim personal law, statutory intent of the Benami Act, and settled rules of evidence. The result is a balanced jurisprudence that continues to guide partition litigation involving Muslim families.
