9911796707
TMI Blog1991 (2) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... ich are necessary for disposal of this amendment petition may be stated as follows : The plaintiff-opposite party filed the present suit for partition in April, 1984, against the original defendant who is dead and now substituted on her by the present petitioners for partition of the suit property claiming that the suit property belonged to Mrs. Harnam Kaur and the opposite party and the original defendant being the two daughters of Harnam Kaur had inherited the said property in equal shares. The original defendant, on entering appearance, filed a written statement on August 29, 1984, contesting the suit and claiming to be the exclusive owner of the suit property by virtue of a deed of gift executed and registered by Harnam Kaur on Augu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been allowed by the learned judge. Secondly, that the portion of the amendment by which the deed of gift is challenged as vitiated by fraud and misrepresentation and relief of declaration that the said deed of gift is void having been filed on December 2, 1987, that is more than three years after the original defendant filed the written statement on August 29, 1984, the amendment seeking the relief is a relief which has already been barred by limitation and the present petitioners interest will now be affected if the opposite party is allowed to make such a new case and to seek a new relief which, by efflux of time, has become barred by limitation. The revision petition is contested by the plaintiff opposite party by filing an affidavit- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Therefore, the plaintiff had to allege in paragraph 3(a) case that her father was the real owner and her mother was the benamidar even though the property stood in her name. But section 4 of the Benami Transactions (Prohibition) Act, 1988, clearly states that no suit to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property. The present opposite party is a person who has filed a suit on behalf of a person claiming to be the real owner of the property alleging to be one of his heirs. Therefore, a suit or claim on the plea that Mrs. Harnam Kaur is her father's benamidar is c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Such real owner had to fulfil certain conditions before filing such a suit. In the context of the above provision of the Act, the Division Bench have observed that the legal representatives of the alleged real owner can maintain a suit and, in such case, section 281A of the Income-tax Act will not be attracted. But, when section 4 clearly prohibits a suit by the real owner or by anybody on behalf of the real owner including his legal representatives to file a suit claiming his predecessors-in-interest to be the real owner and the predecessors-in-interest of the defendants to be the benamidar, then, in our view, the amendment sought for in paragraph 3(a) could not have been allowed by the learned trial judge as the plaintiff cannot make out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the amendment seeking a new relief which has, by efflux of time, become barred by limitation is not to be allowed generally, there are a series of decisions of the Supreme Court as well as of our High Court in which the view has been expressed that, even though the relief sought for by way of amendment has become barred by limitation, in suitable exceptional circumstances, the same can be allowed. In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil, AIR 1957 SC 363, the Supreme Court has held that the amendment taking away the right accrued to a party by lapse of time cannot be allowed. But the Supreme Court, in several decisions thereafter, has modified this principle. In Shanti Kumar R. Canji v. Home Insurance Co. of New York, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not justified in allowing the amendment to paragraph 3(a) to the plaint as well as some consequential amendments in paragraphs 1, 2, 3, 4, 5 and 7 of the schedule to the amendment petition. The said portion of the amendment petition should be rejected in view of our findings in the above. The revision petition is, therefore, allowed in part. The application for amendment is allowed in part save and except the amendment as per the schedule of the amendment being paras 10(a), 10(b) and 10(c) and the prayer portion of the plaint being para (ai) all other amendments as per the schedule of the petition of the amendment are disallowed. The prayer for deleting paragraph 7 and the renumbering of the subsequent paragraphs is also rejected and, as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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