MANOJ BEHARI LAL MATHUR AND ANR. versus DR. SHANTI MATHUR AND ORS.

Citation: [1996] SUPP. 9 S.C.R. 425 · Decided: 02-12-1996 · Supreme Court of India · Bench: K. RAMASWAMY, G.T. NANAVATI · Disposal: Dismissed

Judgment (excerpt)

MANOJ BEHAR! LAL MATHUR AND ANR. 
A 
v. 
DR. SHANTI MATHUR AND ORS. 
DECEMBER 2, 1996 
B 
[K. RAMASWAMY AND G.T. NANA VAT!, JJ.] 
Code of Civil Procedure, 1908 : 
c 
Sectio11 151, Order 6 Rule 17-Plai11t-Ame11dme11t of-Suit filed by 
appella11ts' mother for pe1petual i11jw1Ctio11 restraining respondent from 
alienating the suit property-Second suit filed by appe//a11ts for panition and 
separate possession-77iereafter another suit filed for declaration that respon-
dent was a benamidar and the property belonged to the joint family and, 
therefore, she has no right, title and i11terest in the Plai11t Schedule Proper-
ty-Application filed for Ilia! of a preliminary issu~ltimately when tile D 
matter came before Supreme Cowt this Coun directed to try the issues, 
regardless of the deficiency i11 the pleadings, whether respondent was a 
benamidar a11d whether the provisio11s of Be11ami Transactions (Prohibition) 
Act, 1988 would stand in the way of the appellants--77iereafter application 
filed for amendment of plaint that re'pondent was a tmstee on behalf of the 
appellant plaintif[;-Application dismissed by Trial Court and High 
Coun-Appeal-He/d, it was open to the appellants, even without resoning to 
amendment of the plailll, to press their arguments basing on the legal effect 
of the benami transaction and that respondent was a tnistee of the property 
for the benefit of the joint family-For that puipose, no express amendment 
was required, nor it was necessary that amendment be made in the plaint-It 
is open to the cowt below to proceed with the trial of the suit or to dispose 
of the preliminary issue in accordance with law. 
Controller of Estate Duty, Lucknow v.Aloke Mitra, [1981) 2 SCC 121, 
held inapplicable. 
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 15351 of 
1996. 
From the Judgment and Order dated 16.10.95 of the Rajasthan High 
E 
F 
G 
Court in C.R.P. No. 27 of 1995. 
H 
425 
426 
SUPREME COURT REPORTS [1996] SUPP. 9 S.C.R. 
A 
Tapas Ray and Indra Makwana for the Appellants. 
B 
Harish Salve, Pradeep Aggarwal, Sushi! K. Jain, A.P. Dhamija and 
S. Atreya for the Respondents. 
The following Order of the Court was delivered : 
Leave granted. 
We have heard learned counsel on both sides. 
This appeal by special leave arises from the order of the single Judge 
C of the High Court of Rajasthan at Jaipur, made on October 16, 1995 in CR 
No. 27/95. 
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, 
D 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 
E 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 
F 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. 
G 
It is contended by Mr. Tapas Ray, learned senior counsel appearing 
for the appellants, that Dr. Shanti Mathur stands in a fiduciary capacity 
as a trustee on behalf of the appellants-plaintiffs and the members of the 
joint family. The circumstances in which the property came to be pur-
chased in the name of Dr. Shanti Mathur have elaborately been stated in 
H 
the plaint filed in all the three suits though different reliefs have been 
MAN OJ BEHAR! LAL MATifUR v. SHANTI MATHUR 
427 
sought in the suits. In the first suit, the relief prayed for was perpetual A 
injunction and it was sought that Dr. Shanti Mathur was attempting to 
alienate the property. Subsequently, when it was found to have been 
alienated, suit was filed for 

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