NAOREM BRAJAKISHORE SINGH Vs. NAOREM SHYAMSUNDER SINGH AND ORS.

JUDGEMENT

(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 and 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. 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: - -