MANOJ BEHARI LAL MATHUR Vs. SHANTI MATHUR

JUDGEMENT

(1.) Leave granted.

(2.) We have heard learned counsel on both sides. This appeal by special leave arises from the order of the single Judge of the High Court of Rajasthan at Jaipur, made on October 16, 1995 in CR No.27/95.

(3.) The admitted facts are that the appellants mother had initially filed Suit No. 318/88 for perpetual injunction restraining Dr. Shanti Mathur and others from alienating the property bearing No. D-34, Subhash Marg, C-Scheme, Jaipur, Subsequently, the appellants also filed suit on 1-12-1988 for partition and separate possession of 1/4 and 3/4 shares respectively. Thereafter, the present Suit No. 30/90 was filed for declaration that Dr. Shanti Mathur was a benamidar and the property belonged to the joint family and, therefore, she has no right, title and interest in the Plaint Schedule Property. An application was filed in the trial Court for trial of issue No. 7 as a preliminary issue. Ultimately, the matter had come to this Court wherein this Court directed to try the issues, regardless of the deficiency in the pleadings, whether Dr. Shanti Mathur is a benamidar and whether the provisions of Benami Transactions (Prohibition) Act, 1988 would stand in the way of the appellants. Subsequently, an application under Order 6, Rule 17 read with Section 151, CPC came to be filed for amendment of the plaint on the ground that Dr. Shanti Mathur was a trustee on behalf of the appellants-plaintiffs. The trial Court as well as the High Court in the impugned order dismissed the application. Thus, this appeal by special leave.