ABDUL HAMEED KHAN Vs. ABDUL WAHEED KHAN

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree dated 25-4-95 in Civil Suit No. 45-A/84, by I Addl. District Judge, Bhopal, whereby the suit of the defendant-appellant for partition and possession of half the portion of the suit house, was decreed.

(2.) THE facts leading to the present appeal in brief are that the plaintiff-respondent filed a suit for partition alleging that the suit house was purchased by him and his brother the defendant-appellant by their joint funds. However, since the defendant-appellant is claiming right over the whole of the property, the relief for partition in equal parts of the suit house, was sought. The defendant-appellant resisted the suit and averred that the whole of the consideration was paid by the defendant-appellant, and that the plaintiff-respondent herein, did not pay any part of consideration of the suit house. It was only out of love and affection that the name of the respondent-plaintiff was got recorded along with his own name by the defendant-appellant.

(3.) THE learned trial Court framed several issues including as to whether the suit house was purchased jointly by the parties and as to whether the defendant-appellant out of love and affection got the name of his brother-the plaintiff-respondent recorded in the registered sale deed. The learned trial Court discussed all the above issues jointly and relying upon the case reported in AIR 1994 SC 1687 (which appears to be in fact Duvuru Jaya Mohana Reddy and Anr. v. Alluru Nag Reddy and Ors. (AIR 1994 SC 1647), it was held that since the Benami Transaction (Prohibition) Act, 1988, had retrospective operation and was applicable, the defendant-appellant could not raise the above plea. It appears that the trial Court did not consider the factual aspect of the matter and did not consider the evidence in detail in the impugned judgment in view of the dictum of law of the Supreme Court in Duvuru Jaya Mohana Reddy and Anr. v. Alluru Nagi Reddy and Ors. (supra ).