S SURJIT SINGH SAHNI Vs. BIRJ MOHAN KAUR

JUDGEMENT

(1.) The plaintiff-petitioners are aggrieved by order dated 26.10.95 passed by the trial court whereby their application under Order 14 Rule 5 of the Civil Procedure Code seeking framing of an additional issue has been rejected.

(2.) The plaintiffs have filed a suit for declaration of title, recovery of possession and issuance of permanent preventive injunction. The suit property is 33, Tagore Park, Delhi. One of the averments made in the plaint is that the property was acquired under a perpetual sub-lease deed got executed in favour of late Smt.Inder Kaur who died on 20.8.89. The entire transaction was carried out by plaintiff No.1 as well as his father late Sardar Gian Singh Sahni in the name of late Smt.Inder Kaur (wife of late Sardar Gian Singh and mother of the plaintiffs) and thus it was a benami transaction within a Hindu Joint Family. Late Smt.Inder Kaur was only a benami holder of the demised plot on behalf of plaintiff No.1 as well as on behalf of other co-parceners of the Joint Hindu Family including the plaintiffs and the defendants. Para 1 of the plaint alleges late S.Gian Singh having paid money from his S.B. A/c. to acquire the plot in the name of his wife Smt.Inder Kaur. The averment has been denied by the defendants who, it appears, are setting up exclusive title in late Smt.Inder Kaur and devolution of title upon them by virtue of a will executed by her.

(3.) The issues were framed on 22.1.90, but the Court refused to frame an issue on the plea abovesaid forming an opinion that the plea as to benami could neither be allowed to be raised nor an issue framed thereon in view of the provisions of Benami Transactions (Prohibition) Act, 1988.