Judgment :- 1. The defendants are the appellants in this appeal against the Judgment and decree granted in O.S. No. 738 of 1980 on the file of the subordinate Judge, Cuddalore for partition of the respondent-plaintiffs 1/3rd share in the suit properties. 2. The relevant pleadings in the suit are set out below in the light of the arguments advanced before me. 3. The averments in the plaint are briefly as follows: The suit properties belonged to Kesava Padayachi, who died on 30.5.1979. The Plaintiff and the 2nd defendant are his daughter and son respectively. The 1st defendant is the window of Kesava Padayachi. The suit properties are the self acquired properties of Kesava Padayachi. On his death, the parties are each entitled to 1/3rd share in the suit properties. The defendants 1 and 2 are realising the income from the suit immovable properties and they are appropriate the same since the date of death of Kesava Padayachi. The plaintiff has not been paid any share in the said income. The defendants are taking a fraudulent and dishonest attitude and they are keen to cheat and deprive the plaintiff of her due and just share in the properties. Hence the suit. The defendants are also liable to account to the plaintiff under Order 20 Rule 18 C.P.C. 4. The Written statement of the 2nd defendant, which was adopted by the 1st defendant, states as follows:— The suit properties are not the self acquired properties of Kesava Padayachi family, Except the properties which do not belong to Kesava Padayachis family, the other suit properties are joint family properties. Hence, the plaintiff will not be entitled to 1/3rd share, but she will be entitled to only 1/6th share. On the death of Appasami padayachi, the father of Kesava Padayachi, the latter got certain properties (which are detailed in paragraph 3 of the written statement). From the income of the said properties and from the sale proceeds of certain items, thereof which were sold away, Kesava Padayachi acquired the suit properties which belong to the family. Hence, the said suit properties are joint family properties. The properties which do not belong to the family are listed in paragraph 5 of the written statement. From the income of the said properties and from the sale proceeds of certain items, thereof which were sold away, Kesava Padayachi acquired the suit properties which belong to the family. Hence, the said suit properties are joint family properties. The properties which do not belong to the family are listed in paragraph 5 of the written statement. Some of those properties are items 1 to 4 part 3 of the plaint A Schedule which belong to the 1st defendant and she has settled them on her grandsons (D2s sons) and item 3 of part 4 of the plaint A Schedule belonged to the 1st defendant and she has settled it on her said grandsons. 5. The court below has found that the suit properties are self acquired properties of Kesava Padayachi and that the above referred to properties (Item 1 to 4 of part 3 and Item 3 of part 4) standing in the name of the 1st defendant were only purchased by Kesava Padayachi in the name of his wife, the 1st defendant, benami for himself. Therefore, the court below has decreed the suit in favour of the plaintiff, granting the partition relief as prayed for by the plaintiff. 6. The only two submission made by learned counsel for the appellants is: (1) The court below erred in holding that the suit properties are self-acquired properties of Kesava Padayachi and that it should have held that the Suit properties are joint family properties of the family of Kesava Padayachi (2) With reference to the above referred to properties described as items 1 to 4 of part 3 of the plaint schedule and item 3 of part 4 of plaint schedule in view of the fact that the court below has held that they are held benami by the 1st defendant, applying the Benami Transactions (Prohibition) Act, 1988, (Hereinafter referred to as ‘the Act’) should have held that the 1st defendant is the exclusive owner of the said properties and the plaintiff is not entitled to the partition relief with reference to them. 7. On the other hand, learned counsel for the respondent plaintiff points out the relevant features of the case and contends that the decision of the court below that the suit properties are self acquired properties is a correct one. 7. On the other hand, learned counsel for the respondent plaintiff points out the relevant features of the case and contends that the decision of the court below that the suit properties are self acquired properties is a correct one. Regarding the above said second submission, the said learned counsel submits that the said Act will not apply to the present facts, in view of Sec. (3)(b) of the above said Benami Act of 1986. He also initially relied on Sec. 3(1) and (2) of the said Act. 8. I have considered the rival submissions. Regarding the first of the abovesaid submissions, I may state that though the plea is that out of the sale proceeds of the certain ancestral properties, the suit properties were purchased, no document has beep filed by the defendants to prove the same. There is also no evidence to prove for how much the alleged ancestral properties were sold. Even, D.W. 6, the Karnam does not whisper anything about the quantum of the above said alleged sale proceeds. Likewise, even with reference to the plea that the income of certain ancestral properties, was utilised for the purchase of the suit properties, there is no acceptable evidence. D.W. 2 the 2nd defendant has also deposed that he cannot any which ancestral property was sold in which year and which property was purchased by his father out of the sale proceeds. D.W. 6 also has deposed that he does not know personally much was his income from the ancestral properties. Further even D.W. 1 the 1st defendant did not any in her deposition about the nature of all the suit properties and she only spoke about the above referred to properties, which stood in her name. In the light of the above features, there is no merit in the above referred to contention of learned counsel for the appellants on his abovesaid first submission and there is no reason at all interfere with the finding arrived at by the court below in this regard. 9. In the light of the above features, there is no merit in the above referred to contention of learned counsel for the appellants on his abovesaid first submission and there is no reason at all interfere with the finding arrived at by the court below in this regard. 9. Coming to the second submission of learned counsel for the appellants, the said learned counsel relied on Section 4(1) of the abovesaid Act, which runs as follows:— 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 anyother person shall, lie by or on behalf of a person claiming to be the real owner of such property”. On the other hand, learned counsel for the respondent-plaintiff initially relied on Section 3(1) and (2) of the abovesaid Act, which run as follows:— “(1) No person shall enter into, any benami transactions. (2) Nothing in sub section (1) shall apply to the purchaser of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter”. According to him, Section 4(1) must be read along with Section 3(2) and that if so read, there will be no bar to the present suit. He also alternatively referred to Section 4(3)(b), which runs as follows:— “Nothing this section shall apply:— (a). (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”. So, according to him, the wife of Kesava Padayachi, viz., the 1st defendant, held the above referred to properties only as trustee or other person, standing in a fiduciary capacity and In other words, the said “Benami” properties were held by her for the benefit of Kesava Padayachi, for whom, she was a trustee or towards whom she stood in such capacity. On this reasoning, the said counsel argues that Section 4(1) will not be applicable in the present case. 10. On this reasoning, the said counsel argues that Section 4(1) will not be applicable in the present case. 10. First of all, I am unable to accept the first of the abovesaid two alternative contentions of learned counsel for the respondent-plaintiff. The decision in Mithlesh Kumari v. Prem Behari Khare (1989-1 L.W. 430 (S.C.) relied on by learned counsel for the appellants holds that though section 4 is retroactive and would be applicable to post benami transactions also, section 3 cannot have retrospective operation and it would apply only to transactions, which came into being after the coming into force of the above said Act, that is, on or after 19.5.1988. Therefore Sec. 4(1) cannot be read with Sec. 3(2). In the present case, the above referred properties which were held to be benami, were purchased long back in 1960 under Exs. B.3 to B.5 by Kesava Padayachi in the name of the 1st defendant. Hence this contention has to fail. 11. Then, the other alternative question is whether Section 4(3)(b) of the Act would be applicable in the present case. In other words, whether the 1st defendant, the wife of Kesava Padayachi could be considered as trustee or other person standing in a fiduciary capacity for Kesava Padayachi with reference to the abovesaid properties mentioned as items 1 to 4 of part 3 and item 3 of part 4, both of plaintiff ‘A’ Schedule. In this regard, learned counsel for the appellants contends that there is no plea at all for the respondent to advance such an argument. 12. I also find that not only there is no such plea but it also clear that this aspect was not at all in the contemplation of the parties. There was no issue on the said question, nor there is any discussion or finding by the courts below in this regard. Learned Counsel for the respondent also did not point out to me even any evidence in this regard to the effect that the 1st defendant was holding the properties in question as trustee or other person standing in a fiduciary capacity for her husband Kesava Padayachi. Learned Counsel for the respondent also did not point out to me even any evidence in this regard to the effect that the 1st defendant was holding the properties in question as trustee or other person standing in a fiduciary capacity for her husband Kesava Padayachi. The decision relied on by learned counsel for the respondent, viz., Abdul Hadi, O.R. v. O.R. Abdul Rahim and another (1993-2 L.W. 165 D.B.), turned on its facts and the facts herein are different and the said decision cannot be applied to the present case. There the property in question was purchased in the name of one co-owner from out of the joint funds of all the co-owners and in that context it was no doubt held that the co-owner in whose name the property was purchased took advantage of the joint funds to purchase the property in his name and so he would hold it in trust for all the co-owners, since the case would be a resulting trust under Section 90 of the Trusts Act. However, it was also observed in the said decision that ordinarily one co-owner does not stand in a fiduciary capacity with reference to another co-owner. Yet it was observed that in a case where a co-owner has gained an advantage with the aid of the co-owners common funds as stated above he stands in a fiduciary capacity, via-a-via the other co-owners The said decision relied on several other decisions including Dwarka Prasad v. Mahadeo Prasad (AIR 1930 Allahabad 631, where the court relying on section 88 of the Trusts Act, observed that where there was a fund belonging jointly to several persons and one of those persons made a purchase of land with that fund, that purchase would enure to the benefit of all the persons to a share in the funds. Learned counsel for the respondent also referred to me the above referred to Section 88 of the Trusts Act and also the fact that as per section 7 of the Act. Sections 81, 82 and 94 of the Trusts Act are repealed. However, according to him, section 4(3)(b) of the Act comes to the aid of the respondent in this regard. Sections 81, 82 and 94 of the Trusts Act are repealed. However, according to him, section 4(3)(b) of the Act comes to the aid of the respondent in this regard. But, the above referred to 1993-2-L.W. 165 and all the decision relied on by it on this aspect related to a case of co-owners and of one co-owner purchasing property in his name out of joint funds of all the co-owners. That is not the present case. Therefore, I do not think that section 4(3)(b) of the Act could be invoked in the present case by the plaintiff-respondent, If that is so, section 4(1) of the Act will have to be automatically applied to the present facts, since according to the Supreme Court, as laid down in the above referred to 1989-1-L.W. 430 (S.C.) Section 4(1) of the Act has retroctive operation. 13. Therefore, the Judgment and decree of the court below only with reference to the above referred to items 1 to 4 of part 3 of plaint A Schedule properties and item 3 of part 4 of plaint A Schedule properties are set aside, those properties are held to be exclusively belonging to the 1st defendant the respondent-plaintiff cannot have partition relief in respect of those properties and the suit shall stand dismissed to that extent only. In other respects, the Judgment and decree of the lower court are confirmed. Accordingly the appeal is allowed in part. In the circumstances of the case, there will be no order as to costs.