Section 4 of the Benami Transactions (Prohibition) Act, 1988 does not bar suits for partition of matruka properties.

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 ), who died on 24-12-1977. He had two sons and two daughters. The firstson of Hasan Ali, viz. , mohammad Mahmood Ali pre-deceased his father. Defendants 2 to 4 are the sons of late Mohammad Mahmood Ali. The second son of Hasan Ali is the first defendant. He died during the pendency of the suit and the defendants 5 to 15 who are his sons and daughters were impleaded as defendants 5 to 15. Plaintiffs 1 and 2 are the first and second daughters respectively of 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 palint 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

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