N.L.Ganguly, J.-

This second appeal is directed against the judgment and decree dated 13-2-1974 passed by the District Judge, Ballia in Civil Appeal Mo. 30 of 1970. The plaintiff filed a suit for partition of one half share in the Ahata described in Schedule Ga. of the plaint.

2. In the plaint it was pleaded that Bihari Ram was the common ancestor of the parties, who had three sons Vishwanath Ram, Khedu Ram and Lautu Ram. The aforesaid Bihari Ram's three sons mortgaged the house in question for Rs. 3,200 with Hira Lal Gauri Shanker Prasad. This was an usufructuary mortgage. After execution of the mortgage deed the family of the aforesaid Vishwanath Ram and two other brothers had no place left for residence or for doing any business. Their financial condition was also in a very bad state. Vishwanath Ram and Lautu Ram for some time went to Bengal to do some business there. Gauri Shanker, the brother of plaintiff No. 1, and defendant No. 1 and the son of Khedu Ram also separated. The plaintiff No. 1 also left the village to do some business. The plaintiff No. 1 began to maintain his own father and also Parasnath, defendant appellant.

3. The plaintiff accumulated some capital and in the year 1949 Hira Lal Gauri Shanker brought a suit on the basis of mortgage in their favour. The plaintiff paid Rs. 3,400 to them and redeemed the mortgaged property. He spent another sum of Rs. 1,500 on the repairs of the house. Ramadhar s/o Lautu Ram finding that he could not pay the mortgage money surrendered his share in favour of Khedu Ram. The plaintiff No. 1 also purchased the shop described in schedule kha of the plaint in the name of Bachni Devi wife of Parasnath, defendant. The plaintiff then purchased the property given in Schedule Ga of the plaint.

4. The plaintiff pleaded that he used to give money to Paras Nath and after the Ahata was acquired constructions were raised therein. The plaintiff and Paras Nath were always taken to be owners of this Ahata and constructions inside it. Differences arose between the plaintiff and Paras Nath. Paras Nath had brought a criminal case against the plaintiff. It was, therefore not convenient to keep the property joint hence the suit.

5. The defendants No. 1 to 3 contested the suit, filed written statement and pleaded that the plaintiff had no right or title to maintain the suit. The plea of limitation was also raised. The defendants pleaded that they are in possession and the suit was barred under section 34 of the specific relief act. The defendant Paras Nath pleaded that the Ahata was purchased by him from Gauri Shanker Prasad by means of a sale-deed dated 25-1-1960 and the constructions were raised by him inside the Ahata. He pleaded that the plaintiff Rameshwar Ram and Gauri Shanker Prasad had separated soma 20-21 years back and only Khedu Ram Paras Nath and Ramji Ram and Smt. Kalika remained joint. It was stated that in the year 1927 the three sons of Bihari Ram had executed an usufructuary mortgage deed of the ancestral house in favour of Gauri Shanker Prasad and Hira Lal. In 1949 one suit being brought on the basis of this mortgage it was redeemed by plaintiff No. 1 Rameshwar Ram. Defendant No. 1 had brought Original suit No. 184 of 1968 for redemption of his share in the house. He had also taken the shop in the property given in schedule ka on rent from other members of the family by means of a rent note dated 15-5-2006 (Kunwar Sudi Samwat). It was said that the shop described in schedule kha belonged to Smt. Bachni who purchased the same from her money and the plaintiff was in occupation of this shop as a tenant on payment of Rs. 30 per month as rent. Gauri Shanker defendant had filed a separate written statement in which he stated that after the death of Bihari Ram his sons continued joint. After 1927 Lautu Ram Vishwanath separated from Khedu Ram but the joint family property was not partitioned and redeemed the usufructuary mortgage with the joint family money. He had no separate business and this property was also acquired from the joint family funds.

6. The Trial Court found that the property described in schedule Ga was acquired from the joint funds of plaintiff No. 1 Rameshwar Ram and defendant No. 1 Paras Nath. He also found that the plaintiff had half share in it. The Trial Court found that the suit was within limitation. Ho decreed the suit of the plaintiff.

7. The lower appellate court found as a fact that the Ahata described in schedule Ga was purchased in the name of Paras Nath in the year 1960 at a time when the plaintiff and defendant Paras Nath had joint business. The lower appellate court found that it was not proved that there had been a partition between the plaintiff and Paras Nath and they were living separately. It has also been found that there was no reliable evidence to show that Paras Nath ever did separate business. The shop described in schedule kha was purchased in the year 1955 at a time when Paras Nath was 19 years of age. His wife must have been much younger and it was not possible to believe that though a girl in her teens could purchase the shop out of her own money. Thus the lower appellate court found that the shop was purchased in the name of Smt. Bachni benami. Since this shop was purchased benami, it is not unlikely that this Ahata, though purchased in the name of Paras Nath alone, belonged to both these brothers. The sale deed (Ext. 103) & on the record filed by Rameshwar Ram. The appellate court from the evidence on record found that when the sale deed was executed Paras Nath was about 24 years of age and it was not shown that he was doing any separate business or had separate money to purchase this property. The finding of the Trial Court, therefore, that Rameshwar Ram and Paras Nath were doing joint business and this property was purchased from the funds of their joint business was upheld by the lower appellate court.

8. The lower appellate court while recording the above mentioned finding had considered the evidence adduced by the defendant-appellant Paras Nath and found that the evidence adduced by the defendant was discrepant. It was admitted by Paras Nath that no partition took place between the plaintiff Rameshwar Ram and defendant Paras Nath. From the evidence on record it was established that both the brothers Rameshwar Ram and Paras Nath were doing joint business. Both of them jointly applied to the notified area to undertake the repairs of the ancestral house and the sale deed executed by Vishwanath Ram was executed in favour of both the brothers jointly. This evidence was considered by the lower appellate court at a conclusion that there has been no partition between the plaintiff and the defendant. The lower appellate court held, that these two brothers Rameshwar Ram and Paras Nath were doing joint business, hence the consideration for the purchase of this property naturally came from the funds of the joint business. Gauri Shanker had never acquired any share in this property and the plaintiff No. 1 and defendant No. 1 had half share each in this property. It is also to be noted that the trial court and the lower appellate court both examined the application submitted before the Notified Area for separately assessing Gauri Shanker, who had separated. The lower appellate court also held from the facts on record that in the business the joint name was used, which itself was indicative of the fact that the two brothers remained joint and had been doing business jointly. It was also in evidence that subsequently the business was done by these people in the names of Khedu Ram Rameshwar Ram, Rameshwar Ram Paras Nath, Hira Lal Jawahar Lal being the sons of Paras Nath and Rameshwar Ram Satya Narain, which shows that the business was done in joint names of both these brothers or their sons and they continued to be joint. Had they been separated, they could not have named their business in the name other's sons. A large number of invoices were also filed in the name of these firms. Invoices No. 4 to 22 were in the name of Paras Nath Rameshwar Ram, Invoices No. 23 and 24 were in the name of Khedu Ram Rameshwar Ram, Invoices No. 25 to 33 were in the name of Jawahar Lal Hira Lal and invoices No. 34, 35, and 37 to 47 were in the name of Jawahar Lal Hira Lal. On some of the invoices it was noted that the commodity indented was collected by Paras Nath on behalf of the firm. Thus items in respect of which Invoices Ext. 23, 24, 25 and 36 were issued, were collected by Paras Nath. If Paras Nath collected items for the firms aforesaid, then it was clear he was joint with Rameshwar Ram. Had he been separated, he would never have bothered to collect these items nor could Ramesh was Ram have trusted him with those items. Ext. 50 is a house tax receipt in the joint name of Rameshwar Ram and Paras Nath in respect of the ancestral house and shop. From all these documents it is clear that though Gauri Shanker had separated, Rameshwar Ram and Paras Nath had continued to be joint and were doing business jointly.

9. Sri U. K. Misra, learned counsel for the appellant, moved an application in appeal for adding a ground in the memo of appeal. A copy of this application was served on Sri Prakash Krishna, counsel for the respondent on 13-11-1991. Sri Prakash Krishna filed no objection to the said application rather he submitted that he had no objection in the ground sought to be added. The ground sought to be added in the memo of appeal as ground No. 14 is quoted below:

"14. Because, on the admitted case of the plaintiff-respondent, he purchased the land in suit in the name of the defendant-appellant from his own funds and is thus a benami transaction and in view of the provisions of act no. 45 of 1988 the suit is liable to fail and the appeal deserves to be allowed."

10. The application for adding additional ground in the memo of appeal was allowed on the date of heating and today I allow the ground to be added in the memo of appeal.

11. The learned Counsel for the appellant Sri U. K. Misra placed the evidence of PW I Rameshwar Ram and placed paragraphs 8, 30 and 34 of the said statement. He also referred to the statement of PW 2 Sukh Dev Ram and placed paragraph 5 of his statement. Lastly, he placed the statement of P. W. Ram Jatan and referred to paragraph 3 of his statement.

12. In paragraph 8 of PW 1 Rameshwar Ram it was stated that the Ahata in question was purchased by him and Parasnath from Gauri Shanker and for making constructions of the house in the Ahata both spent the money. In paragraph 30 of the said statement it was stated that the sale-deed was got executed by Rameshwar Ram out of the income earned by him from business at Kamal and Sheorapulli. That business was closed in the year 1967. In the statement of Sukh Deo Ram PW 2 vide para 5 it was pointed out that the Ahata and the land on which the house was purchased by Rameshwar Ram himself. It was purchased in the name of Paras Nath. PW 3 Ram Jatam stated that the Ahata and the shop in question was constructed jointly in partnership.

13. The learned Counsel for the appellant referred to the definition of 'benami transaction' as given in section 2(a) of the benami transaction (prohibition) act, 1988, which reads as under:

"2(a) 'Benami transaction' means any transaction in which property is transferred to one person for a consideration paid or provided by another person."

The learned Counsel for the appellant placed the provision of section 4(3) of the aforesaid act, which reads as under:

"4 (3) Nothing in this Section shall apply-

(a) where the person in whose name the property is held is a coparcener in a Hindu Undivided Family and the property is held for the benefit of the coparceners in the family; or

(b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity."

Sri U. K. Misra submitted that the appellate court made out a new case in appeal. He also submitted that even if the finding of the courts below that it was a joint acquisition is taken as correct, since it was neither pleaded nor the case, benefit could not go to the respondent. Sri U. K. Misra placed reliance on the case reported in AIR 1992 SC 885 - Om Prakash and another v. Jai Prakash and another case reported in AIR 1989 SC 1247; Mithleah Kumari and another v. Prem Behari Khare. The learned Counsel for the appellant placed these two decisions to show that the provisions of section 4(1) and 4(2) of the benami transaction (prohibition) act, 1988 is prospective and shall apply to the present (future stages) and future suits, claims or action only. It was also pointed out that in a suit for recovery of benami property if appeal is pending on the date of coming into force of Section 4, the appellate court can take into account the subsequent legislative changes in the Benami Act. Since second appeal is undoubtedly a continuation of the suit, the provisions of the Act though it was enacted and enforced after the judgment of the lower appellate court, still the provisions shall be applicable to the suit and appeal.

14. The learned Counsel for the respondent Sri Prakash Krishna reiterated the findings of fact recorded by the lower appellate court affirming the findings recorded by the trial court. He submitted that since both the courts below as a fact found that Gauri Shanker had separated and Rameshwar Ram and Paras Nath continued to live jointly. These findings of fact are not open to challenge in second appeal as they have been recorded after appreciating the evidence on record. He also submitted that the learned Counsel for the appellant has not been able to show that the findings of fact recorded by the two courts below concurrently are, in any manner, vitiated. He submitted that the submission of the learned Counsel for the appellant that necessary issues were not framed and the parties had no opportunity to understand the real controversy and dispute for want of framing necessary issues the judgment of the court below shall stand vitiated is wholly misconceived. He submitted that there was nothing concealed or unknown between the parties. Both the parties were fully aware of the facts and circumstances involved in the suit and evidence was led by both the parties on all possible aspects involved in the suit. He submitted that mere omission to frame issues is not to vitiate the proceedings. He relied on the decision of the Supreme Court in AIR 1963 SC 894, Medunri Kamaswaramma v. Sampati Subbarao. The Supreme Court also observed that a suit could not be dismissed in such a narrow ground nor such a ground was sufficient for remitting the case to the court below when the parties have led evidence in the case and material evidence on record is sufficient to reach a right conclusion. The above view was also taken in AIR 1964 SC 164, Kunju Keswan v. M. N. Philip and others, AIR 1988 SC 396 ; Bhairav Chandra Nandan v. Randhir Chandra Dutta.

15. After hearing the learned Counsel for the parties I have no hesitation in holding that the suit, as framed by the plaintiff and the defence as set up and evidence led by the parties in the suit, clearly show that Rameshwar Ram and appellant Paras Nath remained joint in the coparcenary Hindu undivided family, although another brother had separated. It has also been found that Rameshwar Ram had been earning and giving money for purchase of the land of Ahata and construction was also made by the money paid by him. The finding of the courts below that at the time the shop in question was purchased in the name of Smt. Bachni, who is the wife of Paras Nath, the age of Paras Nath was 19 years and it was observed that the age of Smt. Bachni must have been much younger than Paras Nath. There was thus no possibility or believable fact that at such tender age Smt. Bachani would have purchased it out of her own money. Since Paras Nath and Rameshwar Ram constituted joint coparcenary Hindu family, the property in the name of either of the coparceners shall not provide any benefit to the person whose name alone the property was recorded and the provision of section 4(3) of the benami transactions (prohibition) act, 1988 shall come into play. The benami transactions (prohibition) act would not affect the rights of the corparceners and co-owners of the Hindu Unidivided Family.

16. After hearing the learned Counsel for the appellant and the respondent and perusing the record, I am of the view that the second appeal does not call for any interference and is hereby dismissed. The parties shall bear their own costs.

Appeal dismissed.