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1991 (2) TMI 25 - HC - Benami Property
Issues:
Challenge to order of amendment in a civil suit under section 115 of CPC; Barred amendment under Benami Transactions Act; Amendment barred by limitation. Analysis: The petitioners challenged the order of amendment in a civil suit for partition, where the plaintiff sought to amend the plaint to challenge a deed of gift and make new allegations. The petitioners contended that the amendment was barred under the Benami Transactions (Prohibition) Act, 1988, and also barred by limitation. The court analyzed the two distinct parts of the amendment sought by the plaintiff. In the first part of the amendment, the plaintiff sought to make an inconsistent case that the property belonged to her father and her mother was a benamidar. However, the court held that this amendment was prohibited under section 4 of the Benami Transactions Act, as it was filed on behalf of the alleged real owner against the defendants who traced the title through the mother, the alleged benamidar. The court referred to a Division Bench judgment to support its interpretation. Regarding the amendment seeking a declaration that the deed of gift was void, the court acknowledged that it was filed more than three years after the plaintiff knew about the deed. While generally, amendments barred by limitation are not allowed, the court cited various Supreme Court and High Court decisions where amendments in exceptional circumstances were permitted. As the original petition for amendment was filed within the limitation period, withdrawn due to a formal defect, and refiled promptly, the court allowed this part of the amendment. In conclusion, the court partially allowed the revision petition, permitting the amendment in certain paragraphs related to challenging the deed of gift but rejecting the amendment seeking to establish the father as the real owner. The court directed the plaintiff to submit a fresh amended plaint as per the court's order. The petitioners were given four weeks to file an additional written statement against the allowed amendments. No costs were awarded in the matter. The judgment was delivered by two judges, with one judge concurring with the decision.
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