JUDGMENT Laxmi Kanta Mohapatra, CJ. 1. This appeal has been filed by the defendant No. 1 in Original (Partition) Suit No. 6/2001/34/2002. The suit was decreed by the learned Addl. District & Sessions Judge (FTC), Manipur East vide judgment and decree dated 29.1.2005. 2. The respondent No. 1 had filed the suit for partition. The case of the plaintiff-respondent No. 1 is that the plaintiff and defendants 1, 2 and 3 are members of a joint hindu family and are in possession of undivided properties described in 3(three) schedules attached to the plaint which they got from common ancestor late Nourem Ibomcha Singh who died intestate on 22.2.1998. It is the case of the plaintiff-respondent No. 1 that common ancestor late Nourem Ibomcha Singh was paying income tax from the assessment year 1961-62 from out of the income earned from the property described in Schedule 'A' and 'B' of the plaint. After his death the defendant No. 1-appellant has become coparcener of the family and paying income tax in the name of their deceased father. The dispute arose regarding the management of the suit properties, distribution of monthly income from the tenants of the Thangal Bazar and Paona Bazar shop buildings, apart from income through sale of Loushal Paddy every year. Since there was dispute with regard to distribution of properties, monthly income, etc., the plaintiff filed the suit for partition claiming equal share as that of his brothers who are defendant No. 1, 2 and 3. The defendant No. 1-appellant filed the written statement along with a counter claim though the counter claim was not pressed later during pendency of the suit. The specific objection taken by the defendant No. 1 in para 10 of the written statement was that schedule 'A' property is not benami property held by his late father in his name in between 1949 and 1998 for benefit of the family. It was also the stand of the defendant No. 1-appellant that he had purchased the property in Schedule 'A' with his own money in an auction sale held on 1.8.1952. It was also the stand of the defendant No. 1-appellant that he had purchased the property in Schedule 'A' with his own money in an auction sale held on 1.8.1952. The other plea taken in the said para is that if the schedule 'A' property is covered under Benami Transaction (Prohibition) Act, 1988, the suit is hit by section 4(1) of the Benami Transaction (Prohibition) Act, 1988 and therefore, the suit filed by the plaintiff respondent No. 1 was not maintainable in respect of Schedule 'A' property. The other allegations made in the plaint were denied by the defendant No. 1-appellant. 3. The Trial Court framed only one issue on the basis of pleadings of the parties which is quoted below:-- "Whether these property i.e. plaint schedule 'A' property was purchased by his late father N. Ibomcha Singh and whether the said defendant No. 1 N. Brajakishore Singh is only a benamidar in respect of the said property"? Even though in the written statement of defendant No. 1-appellant, a specific plea was taken that the suit is hit by section 4(1) of the Benami Transaction (Prohibition) Act, 1988, no issue was framed by the Trial Court. 4. On behalf of the plaintiff respondent No. 1, four witnesses were examined and on behalf of the defendant No. 1-appellant, two witnesses were examined. Three witnesses were examined on behalf of the respondent Nos. 2-4 and two more witnesses were examined on behalf of the respondent No. 5. In course of the proceeding before the Trial Court, parties agreed that there is no dispute with regard to properties mentioned in Schedule 'B' and 'C' of the plaint and only dispute was with regard to the property described in Schedule 'A' of the plaint which is the property purchased in the name of the defendant No. 1-appellant benami by their deceased father. While answering the only issue the Trial Court came to the conclusion that the Schedule 'A' property is not acquired by the defendant No. 1-appellant but had been purchased by late N. Ibomcha Singh in the name of the defendant No. 1-appellant. Accordingly, the Trial Court allowed the suit for partition. 5. While answering the only issue the Trial Court came to the conclusion that the Schedule 'A' property is not acquired by the defendant No. 1-appellant but had been purchased by late N. Ibomcha Singh in the name of the defendant No. 1-appellant. Accordingly, the Trial Court allowed the suit for partition. 5. Shri Modhu, learned counsel appearing for the defendant No. 1-appellant assailed the impugned judgment on the ground that even accepting the finding of the Trial Court that the property mentioned in Schedule 'A' of the plaint had been purchased by the father of the defendant No. 1 in the name of the defendant No. 1 benami, the question that was required to be decided in the suit is as to whether the suit is hit by Section 4(1) of the Benami Transaction (Prohibition) Act, 1988 or not. This being a legal issue, the Trial Court was not required to frame additional issue on this question but should have answered the legal issue having come to a conclusion that the property mentioned in Schedule 'A' of the plaint is not self-acquired property of the defendant No. 1 and that it was purchased by the father of the defendant No. 1 benami in the name of defendant No. 1. It was also contended by the learned counsel appearing for the appellant that the parties are governed by the Dayabhaga school of law and therefore, the concept of coparcenery between father and son does not exist and children do not have right over the ancestral property by birth and the father becomes owner of the property and remains as such till his death. There is no concept of coparcener between father and son in respect of any ancestral property and therefore, the suit for partition could not have been filed in respect of a property which was purchased benami in the name of defendant No. 1 being hit under section 4 of the Benami Transaction (Prohibition) Act. 6. There is no concept of coparcener between father and son in respect of any ancestral property and therefore, the suit for partition could not have been filed in respect of a property which was purchased benami in the name of defendant No. 1 being hit under section 4 of the Benami Transaction (Prohibition) Act. 6. Learned counsels appearing for the plaintiff respondent and other respondents submitted that the Benami Transaction (Prohibition) Act, 1988 does not have retrospective operation and property under Schedule 'A' of the plaint having been purchased much prior to coming into force of the said Act, the question of application of section 4 of the said Act does not arise in the case and therefore, the Trial Court rightly did not answer the said question even though it was raised in the written statement and at the time of argument. 7. From the evidence adduced before the Trial Court, I find that the property in Schedule 'A' of the plaint was purchased in an auction by the father of the plaintiff and defendant No. 1, 2 and 3 in the name of defendant No. 1. The reason for purchasing the property in the name of defendant No. 1 is that their father late Nourem Ibomcha Singh had already a property in his name within the Imphal Municipal area and was not entitled to have a second property in his name. Be that as it may, the finding of the Trial Court that it was a Benami Transaction is not in dispute now. Section 4 of the Benami Transaction (Prohibition) Act, 1988 is quoted below for convenience:-- "4. Prohibition of the right to recover property held benami:-- (1) 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 any other person shall lie by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. (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 coparcener 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." 8. As is evident from the said provision, no suit to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be real owner of such property. There are two exceptions to this provision, i.e. 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 coparcener in the family, a suit can lie to enforce any right in respect of such property. The other exception is that 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, the suit can also lie to enforce any right in respect of such property. The claim of the plaintiff appears to be under the first exception on the basis that he is a coparcener in a Hindu undivided family of which the defendant No. 1 who hold the property is also a member. Therefore, the question again arises for consideration is as to whether there is any concept of coparcener under the Dayabhaga school of law or not. Another question may arise with regard to applicability of Hindu Succession Act. Therefore, the question again arises for consideration is as to whether there is any concept of coparcener under the Dayabhaga school of law or not. Another question may arise with regard to applicability of Hindu Succession Act. Had the Trial Court framed the issue on this question, parties would have laid evidence to prove their respective stand taken before the Trial Court. Neither any issue was framed on this question nor the Trial Court decided the legal question as to whether the suit was barred u/s. 4 of the Benami Transaction (Prohibition) Act, 1988. I am of the view that judgment and decree passed by the learned Addl. District & Sessions Judge (FTC), Manipur East are unsustainable and the case is to be remitted back to the Trial Court for framing appropriate issues considering the questions raised by the parties and further permitting the parties to adduce further evidence on such issues that may be framed. The question of retrospective applicability of Section 4 of the Benami Transaction (Prohibition) Act, 1988 is also required to be considered though the learned counsel appearing for the parties have cited some decisions which lay down that section 4 of the Benami Transaction (Prohibition) Act, 1988 has no retrospective effect and cannot be pressed into service in a suit which had been filed after the Act came into force. The decision of the Apex Court in the case of Rebti Devi-Ram Dutt and another reported in (1997) 11 SCC 714 is also relevant as it was held that applicability of Section 4 of the Act could also be considered in a suit filed after commencement of the Act. 9. For the reasons stated above, I set aside the impugned judgment and decree passed by the Trial Court and remit the case back to frame appropriate issues, permit the parties to adduce further evidence if required and dispose of the suit on consideration of the issues raised in this appeal. Since the suit is of the year 2002 and it may not be required to adduce further evidence, I direct the Trial Court to dispose of the suit within a period of 6(six) months from the date of receipt of the record.