JUDGMENT P.C. Agarwal, J. 1. This is a second appeal by the defendant against the reversing judgment of the first Appellate Court. 2. Ramchandra (since deceased whose legal representatives are brought on record the appellant/defendant) and Rampratap (respondent) both were sons of Kamtaprasad. However, their mothers were different. Late Ramchandra had purchased Khasra Nos. 178, 179 and 180, area 18 Bigha 15 Biswa with Ghurmal Kachhi. These lands were mutated in names of late Ramchandra Ghurmal in equal shares. Ramchandra has sold 4 Bigha 14 Biswa (O. 982 hectare) land, to his son-in-law Jamuna Prasad on 1-6-1977 vide Ex. P.11. Rampratap (respondent) had started a proceeding under section 145 of the Code Criminal Procedure against late Ramchandra and Ghurmal. In such proceedings the above Khasra numbers with Khasra Nos. 154, 155 and 158 were attached by the Criminal Court. However, these proceedings ended in favour of Ramchandra and Magistrate held late Ramchandra to be in possession. 3. As per plaint, late Ramchandra had purchased Khasra Nos. 148, 179 and 180 from money advanced by the mother of parties. Late Ramchandra acted as a Karta or Manager of the joint Hindu family of which Rampratap (respondent) was a member. On 31-10-1966 there had been a partition between these two brothers through the intervention of Panchas and south western part of Khasra No. 178, 179, and 180 (to be called as suit land) was allotted to Rampratap who continued in possession thereof. It was claimed that on 11-8-1972 Ramchandra spoil the crop of Kodo sown by Rampratap and planted rice therein on which Rampratap (respondent) was compelled to move the criminal Court under section 145 of the Code Criminal Procedure. The Magistrate referred the matter to Civil Court who held that late Ramchandra was in possession. Hence the suit for declaration of title and possession of the suit land. 4. On the other hand, late Ramchandra claimed that he had purchased Khasra Nos. 178, 179 and 180. When Rampratap had become major this land was allotted to Ramchandra in partition. Rampratap (respondent) did not get any share therein nor he was ever in possession thereof. According to him, late Ramchandra continued in possession of suit land from the very beginning. According to him, Rampratap (respondent) has taken inconsistent plea of allotment of the suit land in partition and fresh partition between the parties. Rampratap (respondent) did not get any share therein nor he was ever in possession thereof. According to him, late Ramchandra continued in possession of suit land from the very beginning. According to him, Rampratap (respondent) has taken inconsistent plea of allotment of the suit land in partition and fresh partition between the parties. The Criminal Court had found his possession on suit land after reference to Civil Court. According to him, Rampratap (respondent) had included Khasra Nos. 154, 155 and 158 as disputed property before criminal Court hence he could not file this suit for possession of suit land alone. 5. The trial Court dismissed the Civil Suit as he disbelieved the story of partition on 31-10-1966, According to him, Ex. P.1 memorandum of partition dated 23-4-1967 was false and fabricated document which was full of interpolations. For some of such interpolations Rampratap (respondent) himself was also responsible. According to him, Khasra Nos. 178, 179, and 180 were not part of joint Hindu Family property and thus Rampratap (respondent) had not got that land nor share in partition nor he was entitled to get the same in partition. However, the first Appellate Court disagreed with the trial Court and held that Khasra Nos. 178, 179 and 180 were purchased in the year 1955 by late Ramchandra as a Manager of joint Hindu Family. According to him, this land was divided between late Ramchandra and Rampratap (the respondent) in equal shares in partition dated 31-10-1966 and Rampratap (the respondent) had got 1/4 share of the same. According to him, Khasra Nos. 179 and 180 were merely meds. He explained away any interpolations in Ex. P.1 by saying that thereby rights in suit land were not at all affected. According to him, burden to prove that the suit land was allotted to late Ramchandra in partition lay heavily on late Ramchandra who was unable to discharge such burden and thus a decree for possession of the suit land was given in favour of Rampratap (the respondent). 6. On 9-11-1990, this appeal was admitted on following substantial question of law: Whether the plea raised by the plaintiff and the decree based thereon regarding purchase by the appellant from the funds provided by his mother to impress it with the character of the joint family property can be said to have been hit by the provision of Benami Transaction Prohibition Act, 1988? 7. 7. Having heard the advocates of both the parties and on perusal of records and judgments of both the Courts below, I proceed to decide the above question. 8. Both the Courts below have concurrently held that land Khasra Nos. 178, 179 and 180 were purchased by late Ramchandra with Ghurmal in 1955 when late Ramchandra was the Karta of Joint Hindu Family. Rampratap (the respondent) obviously was a student at that time and thereafter had joined the service. Obviously, such purchase was shown before partition which was held according to Rampratap on 31-10-1966. Ramchandra (DW 1) on 30-9-1981 had admitted in para 6 that there had been a partition between the parties about 14-15 years ago. Thus, admittedly, date of partition was somewhere in 1966-67 i.e. much after the alleged purchase of Khasra Nos. 178, 179 and 180. Though of course as per plaint allegations mother of parties had supplied the price. However, there is clear evidence that Rampratap (PW 1) and Ramchandra (DW 1) were not sons of the same mother though their father was the same. They happened to be the steps brothers. Plaint did not disclose the amount advanced by the mother of Rampratap. Besides bald statement of Rampratap (PW1), there is no evidence that mother of Rampratap (PW 1) had advanced the money for purchase of these lands. Thus, it was not proved that the price was advanced by mother of Rampratap. However, it is of no consequence. Admittedly, these lands were purchased by late Ramchandra while he was manager of the Joint Hindu Family and had nucleus in the shape of joint family lands out of income of which he could have purchased these lands also and thus clearly these lands were also joint Hindu family property and the finding recorded by the learned first Appellate Court below was sound and well founded. 9. It is notable that this Civil suit was filed on 8-7-1975. Written statement was filed on 7-11-1975. The Benami Transaction (Prohibition) Act, 1988 (to be called as Act only) had come into force on 5-9-1988. Bar of any suit, claim or action under section 4(1) and for defence on the basis that property was purchased benami under section 4(2) of the said Act did not apply to the case at hand as such a bar has been held to be prospective. Bar of any suit, claim or action under section 4(1) and for defence on the basis that property was purchased benami under section 4(2) of the said Act did not apply to the case at hand as such a bar has been held to be prospective. Prabodh Chandra Ghosh vs. Urmila Dassi, AIR 2000 SC 2534 , C. Gangacharan vs. C. Narayanan, AIR 2000 SC 589 : (2000) 1 SCC 459 , Smt. Rebti Devi vs. Ram Dutt, AIR 1998 SC 310 , Heirs of Vrajlal J. Ganatra vs. Heirs of Parshottam S. Shah, (1996) 4 SCC 490 , based on R. Rajagopal Reddy vs. Padmini Chandrashekharan, (1995) 2 SCC 630 and Pawan Kumar Gupta vs. Rochiram Nagdeo, AIR 1999 SC 1823 have concluded the matter and held that provisions of the Act are prospective and not retrospective. Obviously, no bar to such a claim did exist in 1975 when the civil suit was filed. 10. Otherwise also, Section 4(3) of the Act provides: (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; Obviously, these lands were purchased in name of late Ramchandra who was Karta or Manager of the family and this was a coparcener and the Act did not bar any such plea that the lands were purchased for the whole family. 11. Otherwise, also, such a new question which was neither pleaded before nor was dealt with by the Courts below could not be allowed to be raised in the second appeal before the High Court. K. Chelliah Servai vs. P. Muthysami Servai, (1995) 1 SCC 202. 12. Though it is true that the learned first Appellate Court below had reversed the findings of the trial Court yet it is well settled that he had not only a power but a duty to do so. The Apex Court in Arumugham vs. Sunderambal, (1999) 4 SCC 350 at page 356 has observed: It is open to the first Appellate Court to consider the evidence adduced by the parties and give its own reasons for accepting the evidence of one side or rejecting the evidence of other side. The Apex Court in Arumugham vs. Sunderambal, (1999) 4 SCC 350 at page 356 has observed: It is open to the first Appellate Court to consider the evidence adduced by the parties and give its own reasons for accepting the evidence of one side or rejecting the evidence of other side. It is not permissible for the second Appellate Court to interfere with such findings of the first appellate Court only on the ground that first Appellate Court had not come to grips of the reasoning given by the trial Court. Ramchandra vs. Ramlingam, AIR 1963 SC 302 was relied upon by the Apex Court for such a finding. In compliance with Devram Bilve vs. Indumati, (2000) 10 SCC 540 . I have permitted both the advocates to read the evidence on record to make out sure that no doubt remains as to the correctness of the conclusion of the first Appellate Court and as of the considered opinion that the conclusions of the first Appellate Court were not incorrect. 13. Much stress is given to the interpolations in memorandum of partition Ex. P. 1. However, northern suit land is entered in name of Rampratap (the respondent) and rest northern-western land is shown to be allotted to Ram chandra. It is noteworthy that this memorandum was written in duplicate. The other part was handed over to late Ramchandra who did not produce the counter part handed over to him in the Court. Definitely oral evidence of Rampratap (PW 1) the respondent himself, Jabar Singh (PW 2), Chhotelal (PW 3), Sampat (PW 4) and Balam Singh (PW 5) clearly supported the plea of allotment of suitland to Rampratap (the respondent). By statements of Ramchandra (DW 1), Ragho (DW 2) and Sukua the counter story that Late Ramchandra had got allotted these Khasra Nos. 178, 179 and 180 in his share in partition is not worth credit. 14. The learned advocate for appellant has applied under Section 100(5) of the Code Civil Procedure for addition of two more substantial questions of law. He has relied upon Santosh Hazari vs. Purushottam Tiwari, (2001) 3 SCC 179 and M. S. V. Raja vs. Seeni Thevan, (2001) 6 SCC 652 for the proposition that the High Court is not confined to hear the appeal on substantial question of law formulated by it. It can hear the appeal on any other question also. He has relied upon Santosh Hazari vs. Purushottam Tiwari, (2001) 3 SCC 179 and M. S. V. Raja vs. Seeni Thevan, (2001) 6 SCC 652 for the proposition that the High Court is not confined to hear the appeal on substantial question of law formulated by it. It can hear the appeal on any other question also. Section 100(5) of the Code reads as follows:- (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question. Obviously, the Court has to record his reasons for hearing on additional questions. The learned advocate has mainly emphasised on: (1) putting wrong burden of proof on the appellant; (2) memorandum of partition Ex. P. 1 not being registered; and (3) that Khasra Nos. 179 and 180 were not referred in Ex. P.1 hence there could be no decree. However, in my considered opinion, these questions do not arise at all. Burden to prove that Khasra Nos. 178, 179 and 180 were exclusive self-acquired property of late Ramchandra clearly lay on him when the same was purchased when he was manager of Karta of the family and had nucleus with him. Obviously, Ex. P.1 dated 23-4-1967 being a mere memorandum of partition effected on 31-10- 1966 did neither require to be written on stamp papers nor need be registered to be admissible. Thirdly, Khasra Nos. 178, 179 and 180 were called collectively as Sarafamwala Bandh and they were referred by that same in Ex. P. 1 and thus it could not be said that Khasra Nos. 179 and 180 were not referred in Ex. P. 1. Thus, these questions suggested by the learned advocate for the appellant do not actually arise in the present appeal. No new substantial question need be framed. The application is dismissed. 15. As already held, the learned first Appellate Court below has not been wrong in placing burden of proof on the appellant. P. 1. Thus, these questions suggested by the learned advocate for the appellant do not actually arise in the present appeal. No new substantial question need be framed. The application is dismissed. 15. As already held, the learned first Appellate Court below has not been wrong in placing burden of proof on the appellant. Thus, no interference is allowed in view of Leela Soni vs. Rajesh Goyal, (2001) 7 SCC 494 . Obviously, in my considered opinion, the learned first appellate Court below has applied his mind to the record and judgment of the trial Court and thus no interference is called for in view of Deena Nath vs. Pooran Lal, (2001) 5 SCC 705 . 16. Thus, in my considered opinion, there is no force in this second appeal. Substantial question of law answered accordingly. Accordingly, the appeal is dismissed. Judgment and decree of the first Appellate Court are hereby confirmed. Costs on appellant. Advocate's fee as per schedule.