JUDGMENT
Syed Md. Mahfooz Alam, J.
1. This second appeal has been preferred against the judgment and decree dated 19-3-1990 passed by Sri Ram Kishore Singh, District Judge, Katihar, in Title Appeal No. 15 of 1998 affirming the judgment and decree dated 12-8-1988 passed by Sri Ram Narain Singh Sub-Ordinate Judge, Katihar, in Title Suit No. 43 of 1986.
2. Being aggrieved and dissatisfied with the said judgment and decree the defendants-appellants have preferred this appeal,
3. The brief facts of the case are as follows : The plaintiff-respondent, namely, Most. Gayatri Srivastava filed a suit before the sub-Judge, Katihar, against the defendants appellants for partition of the suit land with respect to her share. The suit was numbered as Title Suit No. 43 of 1986. The case of the plaintiff was that Mahadeo Lal was the father of the plaintiff and defendant No. 2. He was working in the police department and out of his earning he acquired considerable properties in his own name as well as in the name of his wife Smt. Khiroda Devi, who was originally defendant No. 1. She had no income of her own. The said Mahadeo Lal remained in possession of the properties mentioned; in Schedule-A of the plaint as ab-solute owner. He died in the year 1959 leaving behind him the plaintiff and the defendant first party as his heirs’ and after the death of Mahadeo Lal, the plaintiff and the defendant Ist party jointly inherited the suit lands and they came in joint possession of the same. The defendant No. 1, the mother of the plaintiff and defendant No. 2, was an old lady aged about 75 years of age. She was not keeping good health and sound mind. The defendant No. 2 taking advantage of the ill health and unsoundness of mind of defendant No. 1 started manipulating things and started preparing documents in favour of his wife, who has been made defendant IInd party in the suit with dishonest motive and practising fraud upon the defendant No. 1 and for that purpose, the defendant No. 2 put the defendant No. 1 in segregation and did not allow the plaintiff to meet her. Further, case is that the plaintiff asked the defendant No. 2 to get the properties partitioned by metes and bounds but he avoided to make partition of the suit land on one pretext or the other. Hence, the plaintiff brought the suit for partition.
4. During the pendency of the suit, the defendant No. 1 Most. Khiroda Devi died, as such, the suit was contested by defendant Nos. 2 and 3 and both the defendants filed joint written statement. According to the written statement, the suit as framed was not maintainable. Lands of Mauza Baghmara which is also the subject-matter of partition is covered under the consolidation proceedings as such in relation to the lands of Baghmara the suit is barred under Section 4(1)(C) of the Consolidation of Holdings Act. Further case is that late Mahadeo Lal was working in the police department but he was very poorly paid and although the original defendant No. 1 Khiroda Devi had no income of her own but the father of Khiroda Devi , and her brothers were sufficiently rich. The suit property of Baghmara and R. S. Plot No. 1976, 884 and 885 of Mauzza Manihari were acquired by Khiroda Devi from her money gifted by her father and brothers. The suit plots bearing plot No. 1995 and 598 of Mauza Manihari were the ancestral properties of late Mahadeo Lal. The said Mahadeo Lal died in 1959 leaving behind the plaintiff and defendant Ist party and, accordingly, the plaintiff inherited l/3rd share in the above mentioned plots of Mauza Manihari and as there was no partition in the family of late Mahaeo Lal, as such, the said Mahadeo Lal had half share in the Manihari property and rest half share belonged to defendant No. 2 and thus after the death of Mahadeo Lal the plaintiff got only 1/6th share in those Manihari properties which were the ancestral properties of late Mahadeo Lal, Further case is that although it is true that defendant No. 1 was not keeping good health but it is not a fact that she was of unsound mind. The fact is that the plaintiff, who is the only daughter of defendant No. 1, did never care for her mother, whereas, defendant No. 3, was always doing service to defendant No. 1 taking all possible care of her. So, on account of love and affection defendant No. 1 Khiroda Devi gifted all her properties to defendant No. 3 out of her free and independent will by registered deed of gift dated 11-4-1986. The defendant No. 3 accepted the gift and came in possession of the lands mentioned in the gift deed. By way of additional written statement, it was stated that after the death of Khiroda Devi, a gift deed dated 16-12-29 executed by late Jageshwar Lal Singh, eldest brother of Khiroda Devi was found which establishes that the land of Mauza Manihari measuring 1.16 acres appertaining to C. S. Plot No. 518 and the land of Baghmara measuring 2.21 and 2.16 acres respectively of C. S. plot Nos. 410 and 408 were gifted to Khiroda Devi by her brother.
5. On the basis of the pleadings of the parties altogether six issues were framed by the trial Court which are as follows:
I. Is the suit, as framed, maintainable?
II. Is the suit barred under Section 4(1)(b) of the Consolidation of Holdings Act, so far as the suit land of Mauza Baghmara is concerned?
III. Are all the properties in suit self acquired properties of late Mahadeo Lal as asserted in the plaint?
IV. Is the deed of gift executed by Khiroda Devi in favour of Gaitri Rani Sinha, defendant No. 3 valid and legal?
V. Is the plaintiff entitled to a decree for partition of all the suit lands?
VI. What other relief or reliefs the plaintiff is entitled to?
6. From the perusal of the judgment of the trial Court it appears that while deciding issue No. H, the trial Court has held that the suit with respect to the land of Mauza Baghmara is not maintainable as the same is barred under the provision of Section 4(1) (b) of the Consolidation of Holdings Act as the consolidation proceeding was going on in respect of the land of Mauza Baghmara. The learned trial Court further ordered that the suit will proceed only with respect to the land of Mauza, Manihari. From the perusal of the judgment of the. appellate Court it appears that the said finding of the trial Court was upheld and, therefore, the subject-matter of the dispute is only the land of Mauza Manihari. It further transpires from the judgment of the trial Court that the trial Court decided issue Nos. HI and IV simultaneously and on making elaborate discussions on both the issues the trial Court held that all the properties in the suit are self acquired properties of late Mahadeo Lal and Khiroda Devi had no right to execute the deeds of gift (Exhibit-A and A/1) in favour of defendant No. 3 and, as such, Exhibit A and A/1 are not valid and legal documents. It appears from the perusal of the judgment of the appellate Court that the appellate Court also confirmed both the findings of the trial Court in favour of the plaintiff respondent and dismissed the appeal filed by the defendants-appellants.
7. During the course of hearing of this second appeal, learned advocate of the appellants submitted that the Courts below have committed grave error of law by holding that Khiroda Devi was the benamidar of late Mahadeo Lal. He submitted that under the provision of Benami Transaction (Prohibition) Act, 1988, (hereinafter to be referred as “Benami Transaction Act) the plaintiff was debarred from raising plea that the properties standing in the name of the original defendant No. 1 late Khiroda Devi was the benami properties of her husband and on that ground alone the suit was not maintainable. On the basis of the submission of the learned advocate of the appellants, following substantial question of law was framed:
Whether the learned appellate Court has failed to notice the provision of Benami Transaction (Prohibition of the Right to Recover Property) Act which bars such suit.”
8. Admittedly, some of the properties in the suit stand in the name of Khiroda Devi and according to the case of the plaintiff, her husband late Mahadeo Lal had acquired those properties in the name of his wife Khiroda Devi. The concurrent findings of the Courts below are that all the suit properties including those properties which stand in the name of Khiroda Devi were self acquired properties of late Mahadeo Lal, which means that Khiroda Devi was the benamidar of late Mahadeo Lal. The contention of the learned advocate of the appellants is that after coming into force of Benami Transaction Act, the plea taken by the plaintiff that late Mahadeo Lal had purchased properties in the benami name of Khiroda Devi can not be legally entertained as the Act abolishes such benami transaction. His further contention is that after coming into force of Benami Transaction Act, no suit can be entertained on the ground of benami transaction and Section 4 of the Act prohibits entertaining suit or claim on the ground of benami transaction. In support of his argument, learned advocate of the appellants referred Section 4 of the above mentioned Act which reads as follows:
(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.
9. Referring to Section 4 of the Benami Transaction Act, the learned Advocate of the appellants claimed that after coming into force of Benami Transaction Act, 1988, the plaintiff as well as the defendants have been debarred from taking plea that a particular property had been purchased in the benami name of another person. He further submitted that such a claim is barred under Section 4 of the said Act and no suit can be entertained to enforce any right in respect of any property held benami against the person in whose name the property is held and, as such, the suit for partition filed by the plaintiff was barred under Section 4(1) of the Benami Transaction Act. Learned Advocate of the appellants further submitted that since it is the admitted case of the plaintiff that some of the suit properties stand in the benami name of Khiroda Devi (Original defendant No. 1) as such, after coming into force of Benami Transaction Act, no claim in any suit to enforce any right in respect of property held benami against the person in whose name the property is held Can be entertained and on that basis no decree can be passed in favour of the plaintiff-respondent. He submitted that since the appeal is continuity of the suit, as such, Section 1 of the said Act will apply in this case and in view of the applicability of Section 4(1) of the Act, the plaintiffs suit is bound to be dismissed. In support of his argument, learned advocate of the appellants has placed reliance on the decision of the Hon’ble Supreme Court given in the case of Mithilesh Kumari and Anr. v. Prem Behari Khare . The relevant paragraphs referred by the learned advocate of the appellants runs as follows : (Paras 23, 24 and 26 of AIR)
21. When the law nullifies the defences available to the real owner in recovering the benami property from the benamidar the law must apply irrespective of the time of the benami transactions. The expression “shall lie” in Section 4(1) and “shall be allowed” in Section 4(2) are prospective and shall apply to present (future stages) and future suits, claims, or actions only. This leads us to the question whether there was a present suit between the plaintiff respondent and the defendant appellant on the date of the law coming into force. We have noted the dates of filing the suit and judgments of the Courts below. On the date of the Section 4 of the Act coming into force, i.e. 19th May, 1988, this appeal was pending and, of course, is still pending. Can the suit itself be said to be pending?
22. Lachmeshwar v. Keshwar Lal AIR 1941 FC 5 is an authority for holding that the hearing of appeal under the procedural law of India is in the nature of re-hearing and therefore, in moulding the relief to be granted in a case on appeal, the appellate Court is entitled to take into account even facts and events which have come into existence after the decree appealed against. Consequently, the appellate court is competent to take into account legislative changes since the decision under appeal was given and its powers are not confined only to see whether the lower Court’s decision was correct according to the law as it stood at the time when its decision was given. Once the decree of the High Court has been appealed against the matter became sub-judice again and thereafter this Court had seisin of the whole case, though for certain purposes, e.g., execution, the decree was regarded as final and the Courts below retained jurisdiction in that regard.
24…
The consequence is that the plaintiff-respondents suit or action can not be decreed under thy law; and hence the decree passed by the lower Courts is annihilated and the suit dismissed.
10. Relying upon the decision referred to above the learned advocate of the appellants submitted that since Section 4(1) of Benami Transaction Act came in force on 19-5-1988 and till that date the suit brought by the plaintiff bearing Title Suit No. 43 of 1986 was pending before the trial Court, as such after coming into force of Section 4(1) of the said Act the plaintiffs suit was bound to be dismissed as after 19-5-1988 the plea that Khiroda Devi was benamidar of Mahadeo Lal was not available to the plaintiff on that date. He submitted that since the trial Court as well as the appellate Court did not consider this aspect of law and, as such, the trial Court as well as the appellate Court both have committed grave error of law and on that account alone the plaintiff’s suit is bound to be dismissed and the appeal is bound to be allowed.
11. On the other hand, the argument of the learned advocate of the plaintiff-respondent is that the Benami Transaction Act, 1988 has hot been made retrospective and the provisions of the Act do not apply to the suits pending from before the date of coming into force Section 4(1) of Benami Transaction Act i.e., before 19-5-1988. He further submitted that the decision referred to by the learned advocate of the appellants i.e. 1989 PLJR SC 75 : AIR 1989 SC 1247 has been overruled by the subsequent judgment of the Hon’ble Supreme Court. In support of his argument, learned advocate of the plaintiff-respondent placed reliance upon the Three, Judge Bench’s decision of the Hon’ble Supreme Court given in the case of R. Rajagopal Reddy (Dead) by L.Rs. and Ors. v. Padmini Chandrasekharan (Dead) by L.Rs. . He referred paragraph 21 of the said decision which runs as follows : (Para 22 of AIR)
As a result of the aforesaid discussion it must be held with respect, that the Division Bench erred in taking the view that Section 4(1) of the Act could be pressed in service in connection with suits filed prior to coming into operation of that Section. Similarly, the view that under Section 4(2) in all suits filed by persons in whose names properties are held no defence can be allowed at any future stage of the proceedings that the properties are held benami, can not be sustained. As discussed earlier Section 4(2) will have a limited operation even in cases of pending suits after section 4(2) came into force if such defences are not already allowed earlier. It must, therefore, be held, with respect, that the decision of this Court in Mithilesh Kumari case does not lay down correct law so far as the applicability of Section 4(1) and Section 4(2) to the extent hereinabove indicated, to pending proceedings when these sections came into force, is concerned.
12. Relying upon the decision referred to above, the learned advocate of the appellants submitted that the law laid down in Mithilesh Kumari case AIR 1989 SC 1247 has been overruled by the above mentioned decision and now the law as exists today is that there is no applicability of either section 4(1) or Section 4(2) of Benami Transaction Act in cases which were filed earlier prior to coming into force of Section 4(1) or 4(2) of the said Act which came in force on 19-5-1988. He submitted that since the suit was filed in the year 1986, as such, in the year 1986 the plaintiff was entitled to take plea that Khiroda Devi was not the real owner of the suit properties, rather, her husband Mahadeo Lal was the real owner of the suit property although some of the suit properties stood in her name. I fully agree with the argument of the learned! advocate of the respondent that prior to coming into force of Section 4(1) of the Benami Transaction Act, which came in force on 19-5-1988, the plaintiff was entitled to plead that although some of the suit property stood in the name of Khiroda Devi but her husband Mahadeo Lal was the real owner of the suit properties and that Benami Transaction (Prohibition) Act, 1988, has got no applicability so far this suit appeal is concerned. In Support of my view, I place reliance upon the three Judge Bench’s decision of the Hon’ble Supreme Court (Relevant paras of the said ruling already been quoted above).
13. In such view of the matter, I hold that the provision of Benami Transaction Act will not apply in the suit and, accordingly, the substantial question of law framed in this second appeal is answered and decided against the appellants.
14. During the course of hearing, it has been argued that admittedly Khiroda Devi had 1/3rd share in the suit property and after enactment of the Hindu Succession Act, 1956, she became absolute owner of her property as per the provision of Section 14 of the Hindu Succession Act, 1956, and so, she had every right to execute gift deeds in respect of her share in the suit property and, as such the findings of the Courts below that the gift deeds executed by Khiroda Devi (Exhibit-A and A/1) are void documents is not in accordance with law. In reply to this argument, the learned advocate of the plaintiff-respondent submitted that there is finding of the trial Court that Khiroda Devi had no right to execute deed of gift with respect to suit properties and the deeds of gift executed by her in favour of defendant No. 3 (Exhibit A and A/1) are not valid and legal and that finding of the trial Court has also been affirmed by the first appellate Court as such in Second Appeal this Court is not empowered to reverse the finding of facts unless the finding appears to be perverse. In support of his argument, learned advocate of the plaintiff-respondent placed reliance upon the decision of the Supreme Court in the case of Manicka Poosali(C) by L.Rs. and Ors. v. Anjalai Ammal and Anr. . He referred para 17 of the said judgment which runs as follows:
This judgment was followed by this Court in Civil Appeal No. 2292 of 1999 Govindaraju v. Mariamman decided on 4th February, 2005. In Govindaraju’s case (supra) it has been held that the High Court while exercising its powers under Section 100 of the Code of Civil Procedure on reappreciation of the evidence cannot set aside the findings of the fact recorded by the first appellate court unless the High Court comes to the conclusion that the findings recorded by the first appellate Court were perverse i.e. based on misreading of evidence or based on no evidence.
15. The learned advocate further placed reliance upon another decision of the Supreme Court given in the case of Smt. Ram Sakhi Devi v. Chhatra Devi and Ors. reported in 2005 (3) BBCJ IV-264 : AIR 2005 SC 4196. He referred para 9 of the said decision which runs as follows:
Yet again in Roop Singh (dead) through L.Rs. v. Ram Singh (Dead) through L.Rs. this Court has expressed that the jurisdiction of a High Court is confined to appeals involving substantial question of law, Para 7 of the said judgment reads thus:
7. It is to be reiterated that under Section 100 C. P. C. jurisdiction of the High Court to entertain a second appeal is confined only to such appeals which involve a substantial question of law and it does not confer any jurisdiction on the High Court to interfere with pure questions of fact while exercising its jurisdiction under Section 100 C. P. C.
16. Relying upon the above two decisions referred by the learned advocate of the appellants, I have come to the conclusion that since the finding of the learned Courts below that the gift deeds (Exhibits-A and A/1) executed by Most. Khiroda Devi are not valid and legal documents and the said findings are based on the basis of the materials as well as the evidence available on record, as such, this Court cannot disturb the findings of the Courts below unless it is perverse but there is nothing on record to show that the findings of the Courts below in this regard are perverse. In such view of the matter, I reject the argument advanced on behalf of the appellants in this regard.
17. During the course of argument, it has further been argued by the learned advocate of the appellants that the plaintiff being a female member is under law not entitled to claim partition. He further submitted that the suit property includes the dwelling house and according to Section 23 of the Hindu Succession Act, a female member is not entitled to claim partition of dwelling house and, therefore, on this score the suit of the plaintiff was bound to be dismissed. In reply to this argument, learned advocate of the plaintiff-respondent submitted that there is no law that a female member cannot claim partition of a joint family property and although it is true that she cannot claim partition in the dwelling house but as there is no other male member in the family of late Mahadeo Lal, as such, if the plea of the learned Advocate of the appellants is accepted then in that situation the plaintiff being the female member would be debarred for ever from claiming partition of the dwelling house which is not the spirit of law.
18. I think that the argument advanced on behalf of the plaintiff-respondent appears to be correct. I, therefore, hold that since there is no other male member in the family of late Mahadeo Lal except the original defendant No. 2, as such, the plaintiff being the female member is entitled to claim partition of the dwelling house also as under law she cannot be debarred from her share in the dwelling house.
19. In the result, I do not find any merit in this Second Appeal and the same is hereby dismissed but without costs. Restriction imposed on signing of final, decree by order dated 23-5-1990 passed by this Court is vacated.