PRADEEP NANDRAJOG, J.

1. IA.No.721/1997 under Order VII Rule 11 of the Code of Civil Procedure filed by the defendants praying that the plaint be rejected, has been allowed.

2. Learned Single Judge has opined that in view of the prohibition contained in the Sub-Section (1) of Section 4 of the Benami Transactions (Prohibition) Act 1988, late Smt. Santosh Malik could not bring any action seeking partition and possession of property bearing No.B-6, Jangpura Extension, New Delhi-110044.

3. The legal heirs of Santosh Malik, who are litigating, on the death of Santosh Malik urged at the hearing of the appeal through their counsel that in view of Clause (a) of Sub-Section (3) of Section 4 of the Benami Transactions (Prohibition) Act 1988, the suit would be maintainable. Additionally, counsel urged that the defence could not be looked into while deciding on the issue: Whether the plaint disclosed a cause of action?

4. We thus proceed our journey by noting the pleadings in the plaint.

5. The plaintiff, Santosh Malik pleaded in the plaint, that she is the daughter of late Dr. Ram Krishan and that the defendants, Maharaj Krishan and Iqbal Krishan are her brothers. She pleaded that Maharaj Krishan obtained a matriculation certificate in the year 1946 and came to Amritsar. Thereafter, in paras 9 to 14 of the plaint, she pleaded as under:-

“9. That in 1950, the Rehabilitation Department of Govt. of India, decided to allot houses on hire-purchase basis to eligible refugees according to the size of the family, on a very nominal price of about `5,000/-out of which initially only a sum of `2500/-was required to be paid by cash. One house No.B-6, Janpura Extension, New Delhi was allotted to defendant No.1 as per the decision of the family.

10. That even this small amount was impossible to be paid for purchase of the aforesaid house No.B-6, Jangpura Extension, New Delhi, measuring 200 sq.yd. (earlier it was about 160 sq.yds. subsequently about 40 sq.yd. additional adjacent land was allotted) which was allotted to the family according to the size of the family consisting of 7 members.

11. That the plaintiff had been married on August 20, 1945. As the defendants and other family members were unable to even pay the initial price of `2500/-at that time, the plaintiff was approached by late Smt. Parvati Devi, her mother, to contribute maximum amount which she can afford for saving the family from further ruin, so that a joint family house can be purchased, which can be an asset of the family and misery of the family can end. She further assured the plaintiff that she will get her due share in the said house and she will be one of the equal co-owners of the same.

12. That the plaintiff told her mother that she can do so only after discussing the matter with her husband, who may give some money to her for this purpose. She also specifically stated that her husband may agree on the solemn assurance by the family members that the plaintiff will have her due equal share in the property being taken from the Govt. of India.

Accordingly, the plaintiff and her husband discussed the entire matter with other family members and it was agreed by all the family members and solemn assurance was given that in view of substantial help by the plaintiff at that crucial time, she will be one of the co-owners of the said property i.e. No.B-6, Janpura Extension, New Delhi, with other family members, with equal share in the property.

13. That the financial position of the family remained very weak for a long period of time right from pre-partition time till 1965 except for two years or so when defendant No.1 and defendant No.2 went to Indo-China in 1957 for about two years and were remitting their salary to Shri Hari Krishan, the eldest brother. They were not in a position even to pay regularly the installments of the house as also the ground rent of the house and they received the default notices a number of times. They could settle the installments of the house a