Immaneni Panduranga Rao, J.
1. Respondents 1 and 2 herein filed a suit for partition of plaint 'A' and 'B' schedule properties into two equal shares and separate possession of one such share in their favour. Out of that half share they claimed that the first plaintiff is entitled for 1/4th share, the second plaintiff is entitled for 1/4th share and the first defendant being entitled to the remaining half share.
2. The partition was sought in respect of matruka properties left by late Mohammad Hasan Ali (hereinafter referred to as 'Hasan Ali'
3. The suit was contested by the first defendant claiming all the plaint schedule properties as his exclusive properties. Defendants 2 to 4, on the other hand, claimed item No. 6 of plaint 'A' schedule and item Nos. 1 to 3 of plaint 'B' schedule under an oral gift. During the pendency of the suit I.A.No. 541 of 1982 was filed by the plaintiffs for deletion of item Nos. 4 and 5 of plaint 'A' schedule property. The learned First Additional Judge, City Civil Court, Hyderabad, on a consideration of the oral and documentary evidence adduced before him negatived the plea of oral gift set up by defendants 2 to 4. He further held that the plaint 'A' and 'B' schedule properties are the properties of Hasan Ali and that they are the matruka properties in which the plaintiff and the first defendant are having shares. The learned Judge rejected the defence set up by the defendants that the suit is barred by limitation and the plea of adverse possession set up by the first defendant and later on pressed by his legal representatives during trial. Basing on those findings, the learned trial Judge held that the defendants 2 to 4 are not entitled for any share in the plaint schedule properties and that the plaintiffs and the first defendant are entitled to 1/4th share each and half share respectively in the suit properties. Accordingly he has passed a preliminary decree for partition of the plaint schedule properties into two equal shares and for separate possession of one such share to the plaintiffs and the remaining half share to defendants 5 to 15.
4. Aggrieved by the said decision, defendants 5 to 15 have preferred this appeal. During the pendency of the appeal the Benami Transactions (Prohibition) Act, 1988 having come into force, the appellants filed C.M.P.No. 18096 of 1989 raising an additional ground that even assuming that item No. 2 of plaint 'B' schedule house and item Nos. 1 and 2 of plaint 'A' Schedule lands are Benami in the name of first defendant, yet they are not liable to be partitioned under the provisions of Sub-sections 1 and 2 of Section 4 of the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as 'the Act')- We have allowed that C.M.P. and permitted the appellants to raise the additional ground.
5. It was represented by the learned counsel for the appellants that he is not pressing the appeal so far as respondents 3 to 5 (defendants 2 to 4) are concerned on the ground that there is no decree against them. This Court has recorded that statement on 29-1-1992. Thus, the appeal is not pressed against respondents 3 to 5 and the main contest is between the appellants, who are the legal representatives of the first defendant, and respondents 1 and 2 who are the plaintiffs in the suit.
6. The learned counsel for the appellants argued that item No. 2 of plaint 'B' schedule called Hasan Manzil was purchased by Hasan Ali in the name of the first defendant; that the trial Court held that Hasan Ali purchased the item No. 2 of plaint 'B' schedule as well as item Nos. 1 and 2 of plaint 'A' schedule Benami in the name of the first defendant; that Section 4 of the Act prohibits Benami transactions and that in the light of the decision of the Supreme Court in Mithilesh Kumari v. Prem Beliari Khare, : [1989]177ITR97(SC) holding that the Act is restroactive in operation, those three items will not be available for partition. He, therefore, argued that the properties available for partition are only item Nos. 3 and 6 of plaint 'A' schedule and item Nos. 1, 3 and 4 of plaint 'B' schedule.
7. The learned counsel for the second respondent (whose arguments were adopted by the learned counsel for the first respondent) argued that the findings of the learned First Additional Judge, City Civil Court, Hyderabad, have become final; that the Act has application only in cases of suits filed for recovery of property by a person claiming to be the real owner of the property, but, it has no application to cases where the relief of partition is sought for basing on inheritance. To appreciate his contention a reference to Section 4 of the Act is necessary. Section 4(1) of the Act reads that no suit, claim or action 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. Relying upon the words 'by or on behalf of a person claiming to be the real owner of such property', the learned counsel for the second respondent argued that what is prohibited under Section 4 of the Act is filing of the suit to enforce a right in respect of a property held benami against a person in whose name the property is held and when the suit is filed by or on behalf of a person claiming to be the real owner of such property. Since the relief claimed in the suit is not on the basis that the plaintiffs are real owners of the property but only on the basis that the schedule property is the property of their late father in which they are entitled for a share, the learned counsel argued that the provisions of Section 4(1) of the Act cannot apply to the facts of this case.
8. In support of his contention, he relied upon the decision of a Division Bench of our High Court in A. Lakshmamma (Died) v. A. Venkatarama Reddy, : 1992(1)ALT93 . That decision arose out of a suit filed for partition claiming 1/3rd share in the palint schedule properties treating them as joint family properties. The allegation in the plaint was that certain joint family properties were benami in the name of one of plaintiffs' mother-in-law. The defendants failed to establish that she has contributed anything for purchase of that property. The learned Judges held that the provisions of the Act do not attract to such a transaction and that the plaintiffs are entitled to claim a share in such property. In arriving at that conclusion the learned Judges held that the word was loosely used for a sham and nominal transaction and that whether a transaction is benami or sham or nominal should be decided on overall pleadings and entire facts and circumstances of the case and the real relationship of the parties in respect of the properties. Their lordships held that by the word 'benami' used in the plaint, the plaintiffs only intended to raise a plea of the 'nominal' inclusion of Lakshmamma's name in the documents as a purchaser. In that view of the matter, the Division Bench concluded that Section 4 of the Act does not come in the way of the plaintiffs claiming 1/3rd share in the property.
9. The learned counsel for the second respondent also placed reliance upon the decision of Delhi High Court in Mahinder Singh v. Pardaman Singh, AIR 1992 Delhi 357 and submitted that the burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction and that the mere assertion that a property was purchased benami is not sufficient to dismiss the suit at a preliminary stage. This decision does not serve any useful purpose so far as this case is concerned, because, it only lays down that merely on the ground of Section 4 of the Act, the suit cannot be thrown out at the preliminary stage. It is held that before arriving at any decision it is necessary that the parties should lead evidence.
10. In reply to the submission made by the learned counsel for the second respondent placing reliance upon the decision in A. Lakshmamma (Died) v. A. Venkatarama Reddy, : 1992(1)ALT93 the learned counsel for the appellants placed reliance upon the decision of the Supreme Court in Om Prakash v. Jai Prakash, : [1992]1SCR15 . In that case the plaintiff filed a suit for title claiming to be the real owner of the property. As against the decision of the second appeal of the High Court, the defendants filed a Special Leave Petition before the Supreme Court. During the pendency of the Special Leave Petition, the Act was enforced and the leave to appeal was granted subsequent thereto. The learned Judges held that it cannot be said that no appeal was pending before the Supreme Court simply on the ground that only Special Leave Petition was pending when the Act came into force. Referring to the provisions of Section 4 of the Act and observing that it is well settled that an appeal is a continuation of suit and having regard to the fact that the plaintiff therein claimed that he was the real owner of the property and the names of the defendants were mentioned in the sale deeds as benami, the learned Judges held that Section 4 of the Act is a total prohibition against any suit based on benami transaction and, therefore, the plaintiff would not be entitled to get any decree in such suit or in appeal. It is evident from the facts narrated above that the case before the Supreme Court related to a suit filed by the plaintiff claiming that he was the real owner of the property and the names of the defendants were only mentioned in the sale deeds as benami. Therefore, the case is directly covered by Section 4 of the Act.
11. In this case the parties are admittedly Sunni Muslims governed by Hanafi Law of Islam. The case of the plaintiffs is that their father Hasan Ali purchased item No. 2 of plaint 'B' schedule property originally in the name of his son late Mohammad Mahmood Ali benami because he (Hasan Ali) happened to be a Government employee. It is pleaded that the consideration amount was paid by Hasan Ali and that he was in possession of the said item right from the date of purchase till his death. It is further pleaded in paragraph 4 of the plaint that subsequently Mohammad Mahamood Ali also joined Government service and, therefore, late Hasan Ali considered advisable to nominally transfer the said house in the name of the first defendant while he was very young in age. It is also pleaded that the ownership from the very beginning vested with Hasan Ali and the transfer in the name of the first defendant was only nominal and as benami for the real owner late Hasan Ali. The above pleas in paragraph 4 of the plaint clearly establish that the transfer of the property in the name of the first defendant is only nominal in nature, but, is not a benami transaction though the word 'benami' is loosely used in the plaint.
12. The learned First Additional Judge, City Civil Court, Hyderabad, on discussing the oral and documentary evidence adduced in the case and also relying upon the admission of D.W. 3 (sixth defendant) that item No. 3 belonged to Hasan Ali and also the further circumstance that the properties were mutated in the name of Hasan Ali, held that the plaint 'A' and 'B' schedule properties are the properties of Hasan Ali and that they are matruka properties. There is absolutely no evidence that any consideration passed between late Mahamood Ali and the first defendant when the document was transferred in favour of the first defendant. We, therefore, relying upon the reasoning and conclusion arrived at by the Division Bench in A. Lakshmamma (died) v. A. Venkatarama Reddy (2 supra) hold that the word 'benami' is loosely used in the plaint in the instant case for a nominal transaction and, therefore, Section 4 of the Act has no application to the facts of this case.
13. The learned counsel for the appellants, relying upon the decision of the Supreme Court in Kehar Singh v. State (Delhi Admn.), : 1989CriLJ1 argued that there is a change in the approach of the Courts in the interpretation of the Statutes and what was considered as the golden rule previously laying emphasis on 'grammatical meaning' is now changed over to 'intention of legislature' or 'purpose of Statute'. He, therefore, tried to argue that the strict grammatical meaning used in Section 4(1) of the Act cannot be relied upon and the intention of the legislature should be considered in determining the nature of the transaction. But, the preamble of the Act shows that it is intended to prohibit benami transactions and the right to recover property held benami for matters connected therewith or incidental thereto.
14. A reading of Section 4(1) of the Act clearly shows that the intention of the legislature is not to prohibit every type of benami transaction but only suits filed or claims made by a person claiming to be the real owner of the property. The intention of the legislature does not seem to cover every type of transaction or to prohibit any type of suit including of a suit for partition.
15. Excepting the benami nature of transaction no other point is argued before us in the appeal. For the reasons stated above and relying upon the decision of the Division Bench of our High Court in A. Lakshmamma (Died) v. A. Venkatamma Reddy (2 supra), we hold that Section 4(1) of the Act does not operate as a bar for the maintainability of the present suit for partition and separate possession of the suit properties.
16. The appeal is, therefore, dismissed confirming the judgment and decree of the lower Court passed in O.S.No. 288 of 1981. Having regard to the relationship between the parties, we direct each party to bear its own costs in the appeal.