JUDGMENT

M. Jagannadha Rao, J.-Civil Appeal No. 6486 of 1983 is filed by Smt. Rebti Devi (since deceased) and is being continued by her son Sri Mahesh Dutt Gupta, claiming to be her sole legatee under a registered Will dated 18.12.1972. This appeal is preferred against the judgment of the Allahabad High Court in Regular Second Appeal No. 1001/1973 dated 29.2.1980 arising out of Suit No. 1263 of 1968. In the Civil Appeal the respondents are the legal heirs of the brother of Mahesh Dutt Gupta, i.e. late Ram Dutt Gupta.

2. Special Leave Petition No. 17883/1997 is filed by the legal representatives of Ram Dutt Gupta (brother of Mahesh Gupta) impleading Mahesh Gupta and other family members against the judgment of the Allahabad High Court in First Appeal No. 378 of 1996 dated 30.5.1997 allowing the appeal of Mahesh Dutt Gupta and granting probate in respect of the Will dated 18.12.1972 of Rebti Devi in his favour. Learned counsel for the petitioners in S.L.P. has fairly stated that the S.L.P. and IA 1 of 1996 therein are not being pressed. Therefore, we are left only with Civil Appeal No. 6486 of 1983 and in view of the dismissal of S.L.P., Mahesh Dutt Gupta can continue the said Civil Appeal in the place of his deceased mother Rebti Devi. The result also is that Mahesh dutt can also claim as heir to such interest which Rebti has, even if her case of being real owner of the property is rejected once again in this Court.

3. The Suit No. 1263 of 1968 out of which the Civil Appeal arises was filed by Smt. Rebti Devi for possession of property from the occupation of one of her sons Ram Dutt Gupta. The plaintiff has impleaded Ram Dutt Gupta as 1st defendant and his son Surendra Nath Gupta as 2nd defendant. She claimed that she purchased the suit property on 1.6.1955 under a registered sale deed for Rs. 5000/- out of the money acquired by sale of her jewellery and ornaments and money given to her by her relatives and also out of the income derived by her by lending her money regularly. She also pleaded that her husband Ujagar Lal had no movable or immovable property. Apart from Ram Dutt, she has other children Brahm Dutt, Ramesh Dutt, Mahesh Dutt and daughters Prem Devi, Chandrakanta. She claims that the sons separated and that in 1960 she permitted Ram Dutt to occupy the ground floor of the suit property for his business and as Ram Dutt did not vacate, she was suing for possession. The defence of Ram Dutt and his son was that the property was purchased by his father Ujagar Lal in the name of Ram Dutt s mother Rebti Devi benami on 1.6.1955 and that the entire consideration was paid by his father, that his father was the real owner and that after his death, the property has devolved on his wife (plaintiff) and other children in accordance with law.

4. Both sides led evidence. The trial Court accepted the plaintiff s case in its judgment dated 18.11.1971 and held that the plaintiff was not a benamidar and her husband was not the real owner. But on appeal, the appellate Court, in a well considered judgment, reversed the judgment and decree and dismissed the suit on 9.3.1973. That judgment was affirmed by the High Court is Second Appeal on 29.2.1980. Plaintiff preferred this Civil Appeal in this Court.

5. Learned counsel for the plaintiff-appellant (legal representative of Rebti Devi) submitted that the property was standing in the name of Rebti Devi and that the defendants who had come up with a plea of benami had not discharged the onus that was on them. It was also contended, referring to Benami Transactions (Prohibition) Act, 1988 that the plea of benami raised in defence was not open to the defendants and that in Nand Kishore Mehra v. Sushila Mehra1, (which is a three Judge judgment), the principles decided in R. Rajagopala Reddy v. Padmini Chandrasekharan2, (which is also decision of three learned Judges) have been doubted and hence the said Act is applicable to the facts of the case even though the defence of benami was raised long befo