Judgment ( 1. ) PARTIES are real brothers. ( 2. ) SAMPAT Rao (respondent) had filed a civil suit for partition of the house admittedly purchased by his father in village Linga in which he had claimed 1/2 share. The house belonged to the father late Kashiram who had got constructed the same. Gangiya (appellant) claimed that the father Kashiram worked in colliery and has purchased a house Benami in the name of Sampat Rao (respondent ). According to him the father in oral partition had given the suit house to Gangiya (appellant) while the house purchased Benami in name of Sampat Rao (respondent) was allotted to him. He further claimed that Gangiya (appellant) alone had been in possession of the suit house and had spent considerable amount in its reconstruction and repairs etc. According to him Sampat Rao (respondent) who had already got one house in his share could not claim any share in the suit property. ( 3. ) THE learned Trial Court on appreciation of evidence held that : (1) Sampat Rao (respondent) was entitled to 1/2 share in the suit house; (2) The other house was purchased by him out of his earning and thus was his self acquired property and not a Benami purchase in his name and was not liable for partition. The First Appellate Court confirmed both the findings and held that neither any Benami purchase in name of Sampat Rao (respondent) by the father late Kashiram was proved nor there had been any such oral partition as was claimed by the appellant. Any how the learned Appellate Court in addition did apply the bar under Section 4 (2) of the Benami Transactions (Prohibition) Act, 1988 against the plea of Benami taken by the appellant. 3. Following substantial question of law was framed on 5-2-1991 : "whether the First Appellate Court was right in holding that the plea of Benami purchase set up by the defendant was barred by the Provisions of Benami Transactions (Prohibition) Act, 1988 and overlooked in doing so the provisions granting exemptions to transactions mentioned in Sub-section (3) of Section 4 of the said Act. " ( 4. ) THESE dates are material for the decision of the case. The civil suit was filed on 10-3-86. The written statement was filed on 23-6-86 in which plea of Benami purchase was taken by the appellant. " ( 4. ) THESE dates are material for the decision of the case. The civil suit was filed on 10-3-86. The written statement was filed on 23-6-86 in which plea of Benami purchase was taken by the appellant. In other words both these preceded 19-5-88 when Benami Transactions (Prohibition) Act (to be called as "act") only came into operation. Section 4 (3) (a) of the Act reads as follows : "nothing in this section shall apply (a) where the person in whose name the property is held is a co-parcener in a Hindu Undivided Family and the property is held for the benefit of the co-parceners in the family. " Obviously the parties had claimed existence of a Hindu Family of which both the brothers were taken to be co-parceners. The respondent had sued for partition. Obviously any purchase by father in name of son was out of the mischief of the Act and thus invocation of the Act was not proper. ( 5. ) OTHERWISE also though in Mithlesh Kumar v. Prem Bihari Khare, (1989) 2 SCC 95 , it was held that provisions of the Act had come into operation with effect from 19-5-88, the defence of Benami was not available thereafter. In appeal even if such defence was taken before that dale in other words the Act was held to be retroactive and retrospective. However, this view was overruled by the Apex Court in R. Rajgopal Reddy v. Padmini Chandra Shekharan, (1995) 2 SCC 630 , and Nand Kishore Melira v. Sushila Mehra, (1995) 4 SCC 572 , wherein the provisions of Section 4 (1) or 4 (2) of the Act were held to be neither retroactive nor retrospective. As both the dates of filing the civil suit and taking of defence preceded 10-5-85 the plea of defence of Benami could not be taken. ( 6. ) HOWEVER, both the Courts have concurrently held that the plea of Benami, burden of proof of which lay heavily on appellant as laid down in Mishra Bandu Karyala (Firm) v. Shiv Ramlal, 1970 JLJ 723 , Jai Dayal v. B. B. Hazra, 1971 MPLJ Short Note 20, Daryab Singh v. Halki Bai, 1976 JLJ 583 , Ganga Devi v. Shiv Narain, 1967 JLJ 796 was not established by the appellant. The appellant had not been able to prove that the transaction was Benami. The appellant had not been able to prove that the transaction was Benami. Obviously the finding of both the Courts below on the point was neither perverse nor arbitrary but was based on record and appreciation of evidence and thus was sound. As such there is no merit in this appeal. The same is dismissed with costs. Advocates fees Rs. . . . . . . /- if certified. ( 7. ) SECOND Appeal dismissed.