BADAR DURREZ AHMED, J. ( 1 ) THIS is a suit for partition in respect of the property which comprises of a house built on a plot of land measuring 400 Sq. yards and bearing No. C-10/4, Vasant Vihar, New Delh. The suit as originally filed, was between brothers, the plaintiffs on the one hand and the defendant on the other hand. However, the death of the defendant resulted in his L. Rs. being brought on record namely, the said defendant's as also the plaintiffs', mother Smt Ram rakhi Khosla and the defendant's widow Smt Janak Khosla and the defendant's two sons Rajan Khosla and Rohit Khosla. Thereafter, Smt Ram rakhi Khosla also passed away during the pendency of this suit. Her legal heirs comprise of the plaintiffs ( being her sons), Smt Prem Kakria and suman Chadha. ( 2 ) THE plaintiffs have instituted the present suit for partition in respect of the said property on the premise that they had inherited the same from the father late Mr Mohan Lal Khosla. The family of late Mr Mohan Lal khosla comprised of his wife Smt. Ram Rakhi Khosla, their three sons (the plaintiffs and the defendant) and two daughters namely Smt Prem Kakria and Suman Chadha. It is the plaintiffs' case that their father late Mr Mohan lal Khosla was the owner of the leasehold rights in the said plot which was allotted to him by the DDA by virtue of a perpetual lease granted in his favour on 16. 4. 1969. It is further the plaintiffs' case that the late Mr Mohan lala Khosla constructed a house on the said plot for residential use for himself and his family in 1972-73. Late Mr Mohan Lal Khosla died on 21. 12. 1975 leaving behind, as his heirs, his three sons (Plaintiffs and the original defendant), Smt Ram Rakhi Khosla (widow) and two daughters namely Mrs Suman Chadha and Mrs Prem Kakria. It is the plaintiffs case that their mother (Smt Ram Rakhi Khosla) and the two sisters (Mrs Suman chadha and Mrs Prem Kakria) relinquished their respective shares in the said property by virtue of registered Relinquishment Deeds in favour of the plaintiffs and the original defendant. As such, the plaintiffs' and the defendant became owners of 1/3rd share each in the said property. As such, the plaintiffs' and the defendant became owners of 1/3rd share each in the said property. Mutation of the property was also done by the Delhi Development Authority in their names vide DDA's letter dated 8. 8. 1980. Accordingly, the plaintiffs and the original defendant became the joint owners of the property collectively in equal shares and the share certificates were also transferred/modified in favour of the three sons of late Mr Mohan Lal Khosla. ( 3 ) IT is further alleged on behalf of the plaintiffs that the original defendant (late Shri Chand Narain Khosla) and his family members were not maintaining good and cordial relations with the mother (Smt Ram Rakhi khosla) and had constantly harassed and ill-treated her during her life time and were also pressuring her to vacate the premises in question as a result of which the plaintiffs were compelled to file the present suit for partition, inter alia, to provide a shelter to their old and ailing mother in their house which was built by their late father. ( 4 ) DURING the pendency of the suit the original defendant (late Shri chand Narain Khosla) passed away on 23. 12. 1999. As aforesaid, he was survived by his legal heirs namely, Smt Ram Rakhi Khosla (mother), Smt janak Khosla (wife), Mr Rohit Khosla and Mr Rajan Khosla (sons ). The said persons were made parties to the present suit by virtue of the order of this court dated 12. 10. 2001 passed in IA No 2572/2000. At the time of disposal of the said application, an objection was raised on behalf of the widow and sons of the deceased defendant (late Shri Chand Natrain Khosla) that as the mother (Ram Rakhi Khosla) had already relinquished her rights in favour of her sons, therefore, she need not be impleaded as a legal representative. However, this plea was rejected by the Court on the ground that the earlier relinquishment of her share which she inherited from her husband would not come in the way of her inheriting her share in accordance with the Hindu succession Act, 1956 from her deceased son inasmuch as the earlier relinquishment was not a relinquishment in perpetuity. It is, therefore, the plaintiffs' case that Smt Ram Rakhi Khosla became entitled to a 1/4th (25%) share of the estate left by late Shri Chand Narain Khosla. It is, therefore, the plaintiffs' case that Smt Ram Rakhi Khosla became entitled to a 1/4th (25%) share of the estate left by late Shri Chand Narain Khosla. ( 5 ) DURING the pendency of the suit Smt Ram Rakhi Khosla also died at the age of 98 years on 2. 4. 2004 and was survived by the plaintiffs (sons), smt Prem Kakria and Mrs Suman Chadha (daughters), the latter of whom were not parties and were brought on record by virtue of the order dated 8. 11. 2004 passed by this Court in IA 2458/2004. According to the plaintiffs, the shares of the parties in the said suit property as of today are as under:- (1) Plaintiff No. 1 (Lalit Khosla ) 35%. (2) Plaintiff No. 2 (Adarsh Mohan Khosla ) 35% (3) Defendant No. 1 (i ) (a) (Smt. Prem Kakria ) 1. 66% (4) Defendant No. 1 (i ) (b) (Smt Suman Chadha ) 1. 66% (5) Defendant No. 1 (ii) (Smt Janak Khosla ) . (6) Defendant No. 1 (iii) (Shri Rajan Khosla ) 26. 67% (7) Defendant No. 1 (iv) (Shri Rohit Khosla ) . In the written statement submitted by the original defendant, which is supported by the. defendant No. 1 (ii), (iii) and (iv), the plea taken was that the defendant had a 50% share in his own right and a further l/3rd share in the balance 50% on the death of Mr Mohan Lal Khosla inasmuch as the defendant had allegedly invested a sum of Rs 49,000/- from the sale of his property at C-19a Kalkaji, New Delhi for the construction of the house comprised in the suit property. Thus, according to the defendant, the share of the original defendant came to 67% in the said property. A Replication was also filed on behalf of the plaintiffs essentially reiterating the averments made in the plaint and denying those contrary thereto contained in the written statement. The plaintiffs also stated that the Kalkaji property and its subsequent sale had nothing to do with the suit property inasmuch as the suit property belonged exclusively to the plaintiffs' father and that the original defendant had no share in it during the life time of their father late mohan Lal Khosla. The plaintiffs also stated that the Kalkaji property and its subsequent sale had nothing to do with the suit property inasmuch as the suit property belonged exclusively to the plaintiffs' father and that the original defendant had no share in it during the life time of their father late mohan Lal Khosla. They further submitted that late Mohan Lal Khosla died intestate and, accordingly, the plaintiffs and the defendants all have shares in the suit property as indicated above. The parties filed documents and the admitted documents filed by the plaintiffs were marked as Ext. P-1 and P-2 and those of the defendants were marked as Ext. D-1. Thereafter, on 14. 5. 1991 the following issues were framed:- (1) What are the respective shares of the parties in the suit property? (2) Relief. ( 6 ) ON behalf of the plaintiffs, the plaintiff No. 1 (Lalit Narain Khosla) appeared in the witness box and gave his evidence as PW-1. On behalf of the contesting defendants only one witness was examined and that was Mr rohit Khosla (DW-1 ). It would be pertinent to note that in the meanwhile, an application was moved on behalf of the contesting defendants being IA 7498/1999 praying for an order for receiving in evidence the copies of the income Tax Returns for the years 1970-71, 1971-72 and 1972-73 marked with letters "a", "b" and "c". By an order dated 17. 1. 2002 this Court observed that by an earlier order dated 28. 7. 1999 a similar prayer had been made and the same had been rejected recording that there was no justification whatsoever to accede to the request for permission to lead secondary evidence to file copies of the Income Tax Returns. This Court by the order dated 17. 1. 2002 took the view that no further orders would be passed on the application except for reiterating what was recorded by the court earlier. And that, the question as to whether the said documents could be exhibited could be seen at the time of arguments of the suit when the same is taken up for final hearing. Issue No. I: ( 7 ) THERE is no dispute that in the suit property all the parties have a share. The dispute is with regard to the extent of the share. Issue No. I: ( 7 ) THERE is no dispute that in the suit property all the parties have a share. The dispute is with regard to the extent of the share. The entire case set up on behalf of the original defendant was that he had a property at kalkaji which was sold by him and the sale proceeds thereof amounting to rs 49,000/- were spent, inter alia, for the construction of the building comprised in the suit property. Accordingly, the original defendant claimed 50% ownership in the suit property along with his father late Mr Mohan Lal khosla. There is no dispute with respect to the manner and to the extent of shares of the parties with regard to the property admittedly owned by late Mr mohan Lal Khosla at the time of his demise. According to the plaintiffs, the suit property in its entirety was owned by late Mr Mohan Lal Khosla whereas the original defendant and, now, his widow and two sons, the suit property was owned 50% by the defendant and 50% by late Mr Mohan Lal khosla. ( 8 ) IT is, therefore, clear that the main issue is whether the original defendant had any share in the suit property during the life time of late mohan Lal Khosla. According to the defendants, the house was constructed with the joint funds of Mr Mohan Lal Khosla and the original defendant (Chand Narain Khosla ). It is further alleged that the original defendant was the owner of the house at Kalkaji, New Delhi, which was sold on 19. 1. 1973 for a sum of Rs 49,000/- and the sale proceeds were spent on the construction of the house which is comprised in the suit property. According to the plaintiffs although the Kalkaji property was in the name of the original defendant (Chand narain Khosla), the same was built by their father (late Mohan Lal Khosla) but, was held by the original defendant as Benamdar of late Mohan Lal Khosla, the actual owner. According to the plaintiffs, late Mohan Lal Khosla invested all the funds in the Kalkaji property which was duly reflected in the assessment order though filed by the defendants. The learned counsel for the plaintiffs referred to the assessment order Ext. DW1/3 for the year 1973-74 and Ext. DW1/4 which is the assessment order for 1974-75. According to the plaintiffs, late Mohan Lal Khosla invested all the funds in the Kalkaji property which was duly reflected in the assessment order though filed by the defendants. The learned counsel for the plaintiffs referred to the assessment order Ext. DW1/3 for the year 1973-74 and Ext. DW1/4 which is the assessment order for 1974-75. These assessment orders pertain to late Shri Mohan Lal Khosla. The material portion of the assessment order (Ext. DW1/3) dated 11. 2. 1976 reads as under:- "during the accounting period relevant to the assessment year 1973- 74 the assessee sold his residential house at Kalkaji for Rs 49000/ -. The house in question was originally purchased for Rs 13500/- in 1962-63. There was a capital gain of Rs 38500/ -. The assessee has claimed exemption on the capital gain earned on the ground that the assessee started construction of house at C-10/4, Vasant Vihar in August, 1972 and the construction was completed in may, 1973. The source of investment in construction of house at Vasant Vihar and the claim of exemption of capital gain from tax would be thoroughly exempted. During the assessment proceedings for the assessment year 1974-75 and necessary action u/s 154 for this year would be taken if found necessary. No other investment in property or elsewhere is admitted during the year. . . . . . . . " This document clearly shows that late Mohan Lal Khosla had shown the Kalkaji property as belonging to him. He sold the property and claimed exemption on the capital gains arising therefrom on the ground that the proceeds were utilized for the purposes of construction of the house in the suit premises. Accepting the claim of late Mohan Lal Khosla the Income Tax Officer granted exemption from tax on capital gains to Mr Mohan Lal Khosla. ( 9 ) EXT DW1/4 is an Assessment Order for the Assessment Year 1974-75 in respect of late Mr Mohan Lal Khosla. In the Assessment Order, it is, inter alia noted as under:- ". . . . . . . The assessee has constructed a house at Vasant Vihar at the total cost of Rs 77534/ -. A certificate from the valuer in support of the valuation of the property has been filed. The cost of construction is met out of the past savings and from sale of the house at Kalkaji and some loans. . . . . . The assessee has constructed a house at Vasant Vihar at the total cost of Rs 77534/ -. A certificate from the valuer in support of the valuation of the property has been filed. The cost of construction is met out of the past savings and from sale of the house at Kalkaji and some loans. . . . . . . " clearly show that around the time the Kalkaji property was sold and the house in the suit property was constructed, the said late Mohan Lal Khosla showed the capital gains derived from the sale of the property at Kalkaji in his Income Tax Return. Implying thereby that he had regarded the Kalkaji property, although in the name of his son, Chand Narain Khosla (the original defendant), as his own property. Had it not been so, he would not have included the capital gains thereof in his Income Tax Returns. It is also pertinent to note that the contesting defendants had tried to introduce the income Tax Returns pertaining to Chand Narain Khosla (the original defendant) for the Assessment Years 1970-71,19711-72 and 1972-73. These returns are not certified copies but are ordinary copies sought to be introduced by way of secondary evidence. When these documents were sought to be introduced as evidence, the Court, as noted above, did not permit them to be exhibited and left open the question as to whether these documents could be received in evidence to be decided at the stage of final arguments. These documents were marked with letters "a", "b", and "c". Assuming for the sake of arguments that these documents are admissible, what do they show? These are copies of Returns of Chand Narain Khosla. The last of them being for the Assessment Year 1972-73 which would pertain to the year ending 31. 3. 1972. Interestingly, the property at Kalkaji was sold on 19. 1. 1973,. e. the year following the year pertaining to Assessment Year 1972-73. Therefore, none of these purported Returns relate to the period of sale of the Kalkaji property. If the Return had been filed for the Assessment year 1973-74 the year in which the Kalkaji property was sold then it would be relevant to note as to whether Chand Narain Khosla had shown any capital gains in his hands of the sale of the property. If the Return had been filed for the Assessment year 1973-74 the year in which the Kalkaji property was sold then it would be relevant to note as to whether Chand Narain Khosla had shown any capital gains in his hands of the sale of the property. The defendants have chosen not to file any documents pertaining to the Income Tax records of chand Narain Khosla for the Assessment Year 1973-74 or 1974-75. On the other hand, the Assessment Orders Ext. DW1/3 and DW1/4 for the assessment Years 1973-74 and 1974-75 in respect of late Mohan Lal Khosla clearly reveal that the capital gains on the sale of property at Kalkaji was shown as taxable in the hands of late Mohan Lal Khosla. The obvious conclusion is that the property at Kalakaji belonged to Mohan Lal Khosla and so the capital gains accrued at his hands and he claimed exemption on the ground that the same went towards the construction of the house in the suit premises at Vasant Vihar. leis also pertinent to note that the documents marked "a", "b" and "c" do not disclose, any income from house property. Moreover, there is no explanation forthcoming from the contesting defendant for the fact that the Assessment Orders in respect of late Mohan lal Khosla for the relevant Assessment Years 1973-74 and 1974-75 have been filed but not those pertaining to the original defendant Chand Narain khosla. The inescapable conclusion is that the Kalkaji property was held benami by the original defendant Chand Narain Khosla on behalf of his father Mohan Lal Khosla who was the actual owner. It is clear from the decisions in R. Rajagopal Reddy (dead) by Lrs. and Ors. v. Padmini chandrasekharan (dead) by Lrs. , JT 1995 (2) S. C. 667, Heirs of vrajlal J. Ganatra v. Heirs of Parshottam S. Shah, JT 1996 (4) S. C. 725 and Rajni Rani Gupta v. Sudhir Shekhar Gupta, 66 (1997) DLT 148 (Delhi) that the Benami Transaction (Prohibition) Act, 1988 was prospective in operation and did not operate retrospectively. As observed in rajni Rani Gupta (supra), it is common knowledge that before the Benami transaction (Prohibition) Act, 1988 came into operation, properties were and could be purchased Benami and the right to recover such properties was also recognised by Courts. As observed in rajni Rani Gupta (supra), it is common knowledge that before the Benami transaction (Prohibition) Act, 1988 came into operation, properties were and could be purchased Benami and the right to recover such properties was also recognised by Courts. The transaction of purchase and sale of the kalkaji property was concluded much prior to the coming into force of the said Benami Transaction (Prohibition) Act. Therefore, there would be no bar on the plaintiffs disproving the claim of the defendant that the Kalkaji property belonged to Chand Narain Khosla. There is no doubt, looking at the Ext. DW1/3 and DW1/4 that the actual owner of the property at Kalkaji was late Mohan Lal Khosla and that Chand Narain Khosla was a mere benamidar. There is, therefore, no relevance of the defendant showing the sale Deed in favour of Chand Narain Khosla at the time of purchase as well as the Sale Deed having been executed by Chand Narain Khosla at the time of sale of the said Kalkaji property. Such, documents, were within the ambit of Benami Transactions and nothing really turned upon them. ( 10 ) WHAT is of even greater significance is Ext. P-2 which is a letter written by Chand Narain Khosla to the Collector of Stamps, Tis Hazari courts, Delhi on 7. 1. 1983. This letter was written in response to notices issued by the Collector of Stamps with regard to the Relinquishment Deeds executed in favour of Chand Narain Khosla consequent upon the death of mohan Lal Khosla. In this document Chand Narain Khosla has, inter alia, stated as under:- "i am in receipt of above mentioned notices which are redirected to me on 5. 1. 83, and I am to clarify that subjected property was of my father late Shri M. L. Khosla (who was a Member of Central Govt. Servants housing Society, Vasant Vihar, Delhi) My father expired on 21. 12. 1975 and my widowed mother lives in house built on above mentioned property. Value shown is as per Society's record and self and my brothers have not actually paid any money to any body to transfer above property in name of chand Narain Khosla, Lalit Kumar Khosla, Adarsh Kumar Khosla (all brothers) and sons of Late Shri M. L. Khosla. In short it is to clarify that we had or will have no intention to defraud Honourable Government. In short it is to clarify that we had or will have no intention to defraud Honourable Government. " This document, Ext. P-2, records the original defendant's admission that the suit property was, of late Shri Mohan Lal Khosla. This fact clearly demonstrates that even Chand Narain Khosla regarded the suit property as belonging to late Mohan Lal Khosla. ( 11 ) APART from/all this, an important fact is that the land comprising the suit property was admittedly allotted to late Mohan Lala Khosla and who was the exclusive owner of the leasehold rights therein. The entire property including the house constructed thereon remained in the name of late Mohan Lal Khosla till his death on 21. 12. 1975. Thereafter, the admitted position is that his widow Smt Ram Rakhi Khosla and his two daughters had relinquished their shares in the suit property in favour of the plaintiffs and the original defendant. It is also an admitted position that the suit property stood mutated in the names of the plaintiffs and the original defendant. ( 12 ) FROM the above discussion, it is more than clear that during the life time of late Mr Mohan Lal Khosla nobody other than him had any share in the suit property. That being the case, upon his death, his heirs being his widow, three sons and two daughters inherited equal shares in the suit property. However, as the widow and the two daughters had admittedly relinquished their shares in favour of the plaintiffs and the original defendant, the suit property thereafter came to be owned in equal shares by the two plaintiffs and the original defendant, meaning thereby that each had a l/3rd or 33. 3% share in the suit property. This was the position at the time of filing of the partition suit. However, during the pendency of the suit the original defendant and Smt Ram Rakhi Khosla passed away when the original defendant passed away, he left behind four heirs to his estate. Those heirs being his mother (Smt Ram Rakhi Khosla), his widow Smt Janaak khosla and his two sons (Rajan Khosla and Rohit Khosla) who inherited his estate in equal shares, meaning thereby that 25% out of his original share of 33. 3% amounting to 8. 33% of the suit property was inherited in equal measure by each of his four heirs. 3% amounting to 8. 33% of the suit property was inherited in equal measure by each of his four heirs. Smt Ram Rakhi Khosla also died at the age of 98 years on 2. 4. 2004 thereby resulting in further division of shares. Till the time of her death Smt Ram Rakhi Khosla owned a 8. 33% share in the suit property. She left behind as her heirs, her two sons (the plaintiffs), her two daughters and her pre-deceased son's wife and pre-deceased son's sons. The last three of whom would take one share. In other words, the share of Smt Ram Rakhi Khosla was to be divided into five equal shares amounting to approximately 1. 667%. Thus, as of today, the shares of the parties would be as under:- Plaintiff No. 1 (Lalit Khosla ) 63/180 Plaintiff No. 2 (Adarsh Mohan Khosla ) 63/180 Defendant No. 1 (i ) (a) (Smt Prem Kakria ) 3/180 Defendant No. 1 (i ) (b) (Smt Suman Chadha ) 3/180 Defendant No. 1 (i ) (ii) (Smt Janak Khosla ) 16/180 Defendant No. 1 (iii) (Smt Rajan Khosla ) 16/180 Defendant No. 1 (iv) (Shri Rohit Khosla ) 16/180 This issue is, accordingly, decided. The shares of the parties have already declared. A preliminary decree is passed on the basis of such declaration of the shares of the parties in the suit property. Since the suit is also for a decree of possession it would have to be examined as to whether the suit property is capable of division by metes and bounds in terms of the shares declared herein. For this purpose, it would be necessary to appoint a Commissioner for considering the question of division of the property by metes and bounds in accordance with the shares declared herein. In case the Commissioner so appointed reports that it is not possible to physically divide the suit property amongst the parties, then the same shall be put up for sale by auction or private sale in which the parties would also be permitted to participate. The sale proceeds would then be divided amongst the parties in terms of the shares declared herein. ( 13 ) LIST this matter for orders on the appointment of the Commissioner in terms of the preliminary decree above on 4/9/2006. No orders as to costs.