The flat is in my sister's name but I paid the builder. Can I still sue to be declared the real owner?
Not on those facts. Once the 2016 amendment is in force, a claim that the apparent owner holds for you is barred unless it falls within one of the four exceptions in s.2(9)(A)(b)(i) to (iv). The sibling exception in (iv) requires that you be shown as a joint owner in some document; a general power of attorney authorising you to get the property transferred is not such a document, and the counter-claim was rejected.
Decided by the High Court (Valmiki J. Mehta J) on 2018-03-13, reported as RFA No. 903/2017 (High Court of Delhi). It bears on section Benami s.2(9), section Benami s.4, section CPC s.96, section CPC Order VII Rule 11, section CPC Order XLI Rule 24 of the Income Tax Act 1961, in How Tax Law Is Read and Evidence & Burden of Proof matters.
It is the clearest High Court parsing of how narrow the exceptions in the amended definition are, and of what a claimant must actually produce to bring himself within the sibling or joint-holding exception. It also shows a court applying the amended definition to a claim raised after 1 November 2016 over dealings that pre-date it.
Binding within that High Court's jurisdiction. Persuasive elsewhere.
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The respondents/plaintiffs sued for possession and damages in respect of Flat No. 501, Block 6, Plot No. 2, Sector-22, Dwarka, New Delhi. On the pleadings it was not in dispute that the title deeds stood in the plaintiffs' names. The appellants, defendant nos. 1 and 2, filed a counter-claim in May 2017 setting up a case that the flat had only been purchased in the plaintiffs' names and that the defendants were the de jure owners, having paid the consideration to the Delhi Development Authority (para 2). The only documents they relied on were two general powers of attorney dated 5 December 2013 executed by the plaintiffs in their favour, which enabled them to get the flat transferred from the DDA to the plaintiffs by a conveyance deed. By judgment dated 11 August 2017 the trial court rejected the counter-claim under Order VII Rule 11 CPC as barred by the Benami Transactions (Prohibition) Act 1988 (paras 1 and 3). The defendants appealed under s.96 CPC.
The appeal was dismissed and the trial court's judgment was upheld, on reasoning the High Court framed independently of the trial court under Order XLI Rule 24 CPC (paras 8 and 9). The claim was a claim based on a benami transaction that did not fall within any of the exceptions in s.2(9)(A)(b)(i) to (iv) of the Prohibition of Benami Property Transactions Act 1988 (para 8). The defendants could not take the benefit of the exception in s.2(9)(A)(b)(iv) (para 7).
The Court first fixed which statute governed: s.4(3) of the Benami Transactions (Prohibition) Act 1988 was repealed by the Amendment Act with effect from 1 November 2016, and what had been contained in part of s.4(3) was carried into the definition of benami transaction in s.2(9) of the Prohibition of Benami Property Transactions Act (para 4). Reading that definition, only those transactions are saved from being hit as benami which fall within s.2(9)(A)(b)(i) to (iv) (para 5). The Court then examined whether the defendants could claim the exception in s.2(9)(A)(b)(iv) (para 6). It held that although a transaction between sisters can fall outside the definition, the precondition for the exception is that the person claiming entitlement is shown as a joint owner in some document, that is, a document besides the title deeds of the property. The only documents produced were the two general powers of attorney of 5 December 2013, which were simple general powers of attorney executed by the plaintiffs in the defendants' favour to enable them to get the flat transferred from the DDA to the plaintiffs by a conveyance deed. There was no language in them making the defendants co-owners or showing any title or interest in them (para 7). The exception therefore did not apply and the claim remained barred.
only those transactions are saved from being hit as a benami transaction which are subject matter of Section 2(9)(A)(b)
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Handle my notice → Ask a CA on WhatsAppNot on those facts. Once the 2016 amendment is in force, a claim that the apparent owner holds for you is barred unless it falls within one of the four exceptions in s.2(9)(A)(b)(i) to (iv). The sibling exception in (iv) requires that you be shown as a joint owner in some document; a general power of attorney authorising you to get the property transferred is not such a document, and the counter-claim was rejected. This was decided by the High Court (Valmiki J. Mehta J) and bears on section Benami s.2(9), section Benami s.4, section CPC s.96, section CPC Order VII Rule 11, section CPC Order XLI Rule 24 of the Income Tax Act 1961. It is reported as RFA No. 903/2017 (High Court of Delhi). It is the clearest High Court parsing of how narrow the exceptions in the amended definition are, and of what a claimant must actually produce to bring himself within the sibling or joint-holding exception. It also shows a court applying the amended definition to a claim raised after 1 November 2016 over dealings that pre-date it. If it applies to you, the first step is this: Identify at the outset which of the four exceptions in s.2(9)(A)(b) you say applies; nothing outside them is saved.
The respondents/plaintiffs sued for possession and damages in respect of Flat No. 501, Block 6, Plot No. 2, Sector-22, Dwarka, New Delhi. On the pleadings it was not in dispute that the title deeds stood in the plaintiffs' names. The appellants, defendant nos. 1 and 2, filed a counter-claim in May 2017 setting up a case that the flat had only been purchased in the plaintiffs' names and that the defendants were the de jure owners, having paid the consideration to the Delhi Development Authority (para 2). The only documents they relied on were two general powers of attorney dated 5 December 2013 executed by the plaintiffs in their favour, which enabled them to get the flat transferred from the DDA to the plaintiffs by a conveyance deed. By judgment dated 11 August 2017 the trial court rejected the counter-claim under Order VII Rule 11 CPC as barred by the Benami Transactions (Prohibition) Act 1988 (paras 1 and 3). The defendants appealed under s.96 CPC. The matter was decided on 2018-03-13 by the High Court (Valmiki J. Mehta J). On those facts the High Court held as follows. The appeal was dismissed and the trial court's judgment was upheld, on reasoning the High Court framed independently of the trial court under Order XLI Rule 24 CPC (paras 8 and 9). The claim was a claim based on a benami transaction that did not fall within any of the exceptions in s.2(9)(A)(b)(i) to (iv) of the Prohibition of Benami Property Transactions Act 1988 (para 8). The defendants could not take the benefit of the exception in s.2(9)(A)(b)(iv) (para 7).
The Court first fixed which statute governed: s.4(3) of the Benami Transactions (Prohibition) Act 1988 was repealed by the Amendment Act with effect from 1 November 2016, and what had been contained in part of s.4(3) was carried into the definition of benami transaction in s.2(9) of the Prohibition of Benami Property Transactions Act (para 4). Reading that definition, only those transactions are saved from being hit as benami which fall within s.2(9)(A)(b)(i) to (iv) (para 5). The Court then examined whether the defendants could claim the exception in s.2(9)(A)(b)(iv) (para 6). It held that although a transaction between sisters can fall outside the definition, the precondition for the exception is that the person claiming entitlement is shown as a joint owner in some document, that is, a document besides the title deeds of the property. The only documents produced were the two general powers of attorney of 5 December 2013, which were simple general powers of attorney executed by the plaintiffs in the defendants' favour to enable them to get the flat transferred from the DDA to the plaintiffs by a conveyance deed. There was no language in them making the defendants co-owners or showing any title or interest in them (para 7). The exception therefore did not apply and the claim remained barred. In the words reproduced by the source cited on this page: "only those transactions are saved from being hit as a benami transaction which are subject matter of Section 2(9)(A)(b)"
It was decided by the High Court on 2018-03-13 and is reported as RFA No. 903/2017 (High Court of Delhi). Binding within that High Court's jurisdiction. Persuasive elsewhere. A High Court decision binds the assessing officer, the Commissioner (Appeals) and the Income Tax Appellate Tribunal within that state, and is persuasive elsewhere. If your assessment is in a different jurisdiction, check whether your own High Court has taken the same view before relying on it. On section Benami s.2(9), section Benami s.4, section CPC s.96, section CPC Order VII Rule 11, section CPC Order XLI Rule 24, the practical question is whether the facts of your own notice match the facts of this case closely enough for the same rule to apply.
It cuts both ways and is cited by both sides. The appeal was dismissed and the trial court's judgment was upheld, on reasoning the High Court framed independently of the trial court under Order XLI Rule 24 CPC (paras 8 and 9). The claim was a claim based on a benami transaction that did not fall within any of the exceptions in s.2(9)(A)(b)(i) to (iv) of the Prohibition of Benami Property Transactions Act 1988 (para 8). The defendants could not take the benefit of the exception in s.2(9)(A)(b)(iv) (para 7). It arises in How Tax Law Is Read and Evidence & Burden of Proof matters, on section Benami s.2(9), section Benami s.4, section CPC s.96, section CPC Order VII Rule 11, section CPC Order XLI Rule 24 of the Income Tax Act 1961, and was decided by Valmiki J. Mehta J. Before relying on it, read the source linked on this page and check whether it has since been distinguished, overruled or overtaken by an amendment to the Income Tax Act. In practice the steps that follow from it are these. For the (iv) exception, produce a document besides the title deeds that shows the claimant as a joint owner. A general power of attorney will not do. Read the power of attorney carefully; if its language only authorises getting a conveyance executed in the registered owner's favour, it proves the opposite of co-ownership. Expect the claim to be struck out under Order VII Rule 11 CPC rather than tried, where the pleading on its own face discloses a barred benami claim. Before relying on this decision on a pre-2016 transaction, read the note on validity below.
Searched for later treatment; none was found. That is not the same as a source affirming it. No decision applying, affirming, doubting or overruling this judgment was located from the documents opened. There is a live difficulty with para 4. The Court applied the amended definition to a counter-claim filed in May 2017 concerning powers of attorney of 2013, treating the date the claim was raised rather than the date of the transaction as what mattered. The Supreme Court's judgment of 23 August 2022 in Union of India v. Ganpati Dealcom, which held the 2016 amendment to operate prospectively, was recalled in its entirety on 18 October 2024 in Review Petition (Civil) No. 359 of 2023, 2024 INSC 799, and Civil Appeal No. 5783 of 2022 stands restored and undecided. The temporal question is therefore open at the Supreme Court, and this decision has not been tested against it. No source could be cited for that finding. Checking whether an authority still stands matters as much as knowing what it held: a decision may be overruled on one point and survive on another, or the provision it interprets may have been amended since. Read the source and the editor's note on this page before relying on it in a reply to an Assessing Officer or in an appeal.
The discovery note said the Court held the fiduciary-capacity exception in s.2(9)(A)(b)(ii) to be confined to the enumerated relationships. That overstates the judgment. What the Court decided, at paras 6 to 8, is confined to the exception in s.2(9)(A)(b)(iv) - the joint-holding exception - and to the general proposition at para 5 that only transactions within s.2(9)(A)(b)(i) to (iv) are saved. Do not cite this decision as authority on the fiduciary limb. The document carries no neutral citation. It is complete, ending at para 9 with the word Dismissed over the Judge's signature dated 13 March 2018. This library shows the verification state of every entry openly. This entry has not yet been read in full by a chartered accountant. The summary reflects the sources listed on this page. Read the source before you rely on it in a reply to an Assessing Officer or in an appeal before the Commissioner (Appeals) or the Income Tax Appellate Tribunal.
The appeal was dismissed and the trial court's judgment was upheld, on reasoning the High Court framed independently of the trial court under Order XLI Rule 24 CPC (paras 8 and 9). The claim was a claim based on a benami transaction that did not fall within any of the exceptions in s.2(9)(A)(b)(i) to (iv) of the Prohibition of Benami Property Transactions Act 1988 (para 8). The defendants could not take the benefit of the exception in s.2(9)(A)(b)(iv) (para 7).
TaxSphere, “Aparna Sharma v Sidhartha Sharma”, https://taxnotice.vittsphere.com/caselaw/case/aparna-sharma-v-sidhartha-sharma-benami-2-9a-exceptions/ (validity last checked 2026-09-16)
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