JUDGMENT
K. Jagannatha Shetty, J.
1. This regular second appeal by the plaintiff-appellant is against the degree dated June 13, 1979, made in R. A. No. 92 of 1976, on the file of the 8th Additional Civil Judge, Bangalore City, confirming the decree dated February 23, 1976, made in O. S. No. 2389 of 1964, on the file of the First Additional Munsiff, Bangalore.
2. This court, while admitting the appeal framed the following substantial questions for consideration, which read as under :
“(1) Whether the lower appellate court, after having come to the conclusion that the plaintiff has established that the sale deed dated July 19, 1928, standing in the name of the deceased 2nd defendant, was a benami transaction and in reality is was intended for the joint family of the plaintiff and defendants Nos. 3 and 4, was justified in law in holding that the transfer made in favour of the 1st defendant was valid without recording a finding terms of the provisions contained in section 41 of the Transfer of Property Act ?
(2) Whether the finding of the lower appellate court that the transfer made by the 1st defendant in favour of the 5th defendant was a valid transfer is justified in law ?”
3. When the matter came up for hearing as the provisions of the Benami Transaction (Prohibition) Act, 1988, had come into force, the learned judge B. P. Singh J., on consideration of the respective contentions of the parties, felt that the case involves important question of law which are required to be considered by the Division Bench. They are as follows :
“(a) Whether section 3 of the Act which is prospective in operation and which prohibits any person from entering into a benami transaction and makes the breach punishable is a punitive provision which does not, in any manner, control the scope and operation of section 4 which extinguishes the civil rights of those who may claim to be the real owners any right or interest in the property held benami and applies to pending proceedings as well ?
(b) Whether the extinguishment of the rights under section 4 operates as a bar to a suit by a person claiming as real owner any right or increase in the property held banami, against the benamidar or any other person, notwithstanding the exception in section 3(2), but subject to the exceptions contemplated by section 4(3) of the Act ?”
4. The facts giving rise to the appeal are a few and simple. The appellant-plaintiff, Gangadharappa, files a suit against the respondents-defendants in O. S. No. 2389 of 1964, in the Court of the III Additional I Munsiff, Bangalore, praying for relief, inter alia, declaring that the scale deed dated November 30, 1963, executed by the second defendant, the mother of the appellant in favour the first defendant and H. R. C. proceedings in H. R. C. No. 26 of 1964, and the Execution Case No. 404 of 1964, do not bind the plaintiff and for declaring that the he had one-fourth share in the suit schedule property and for partition and separate possession of the share of the plaintiff and that the first defendant-respondent be permanently restrained from disturbing the plaintiff-appellant’s joint possession and enjoyment of the suit schedule land.
5. The first defendant-respondent did not file any written statement. During the pendency of the suit, the second defendant, the mother of plaintiff-appellant died and defendants Nos. 2(a), (b) and (c), the heirs of the deceased second defendant, were brought on record and they filed their written statements.
6. The first defendant-respondent, during the pendency of the suit, sold the suit schedule property to the fifth defendant-respondent-7, K. R. Puttarangaiah. The third defendant-respondent had also filed her written statement. The learned Munsiff, on the basis of the pleadings, framed the following issue for consideration :
1. Whether the plaintiff proves that his father bought the suit property as manager of the joint family consisting of himself and his sons from out of the joint family funds, benami in the name of first defendant ?
2. Whether the fifth defendant proves that the first defendant was the absolute owner of the suit property, she having purchased the same out of her own funds ?
3. Whether the plaintiff proves that he has one-fourth share in the suit property ?
4. Whether defendants Nos. 2(a) and 2(b) prove that their father was the absolute owner of the suit property and as such are entitled to one-sixth share each in it ?
5. Whether the plaintiff proves that the decision in O. S. No. 2317 of 1964, on the file this court operates as res judicata against defendants Nos. 1 and 5 ?
6. Whether the fifth defendant proves that the plaintiff estopped from claiming any interest in the suit property ?
7. Additional issues :
1. Whether defendants Nos. 3 and 4 prove that the suit property is the joint family property belonging to the plaintiff and defendants Nos. 3 and 4 ?
2. Whether the third defendant is entitled to one-fourth share in the suit property ?
3. Whether defendant No. 3 proves that the suit property was purchased by his father, Gangappa, in his mother’s name and it is a benami transaction ?
8. On consideration of the evidence as well as the material on record and the respective contentions of the parties, the learned Munsiff, Bangalore, negatived issues 1, 3, 4 and 5; answered issues 2 and 6 in the affirmative and passed a decree dismissing the suit, with costs of defendant No. 5.
9. Being aggrieved by the judgment and decree of the learned Munsiff, the appellant-plaintiff filed an appeal before the Eighth Additional Civil Judge, Bangalore City, in R. A. No. 92 of 1976. In the appeal, the learned civil judge formulated three points for consideration. They are as follows :
(1) Whether the sale deed dated July 19, 1928, standing in the name of the deceased second defendant as benami for the joint family of the plaintiff and defendants Nos. 3 and 4 ?
(2) If point No. 1 is held in favour of the plaintiff-appellant, does the appellant show that the first defendant has notice, actual or constructive, of the benami nature of the transaction ?
(3) Whether the plaintiff is entitled to one-fourth share in the schedule property ?
10. On consideration of both the oral and documentary evidence, the learned Civil Judge held that the circumstances clearly go to show that Gangappa dealt with his property as owner is established by exhibits P-11, 12 and 14 and also by exhibit P-17. The learned civil judge has further held that the property purchased under exhibit P-13 dated July 19, 1928, in the same of his wife, Gangamma, was a benami transaction, in that, the wife was only a benamidar. On the second question, on consideration of the evidence, the learned civil judge held that defendant No. 1 had in fact purchased the property under exhibit D-1, without notice of benami, for, there was no evidence placed on record to show that there was such a notice to the first defendant. In the circumstances, the learned civil judge held that the plaintiff would not be entitled to any relief notwithstanding the finding on point No. 1 in his favour. Accordingly, the learned civil judge, by his judgment and decree dated June 29, 1979, confirmed the judgment and decree of the learned Munsiff and dismissed the appeal.
11. Being aggrieved by the said judgment and decree of the learned civil judge, the plaintiff-appellant has preferred this appeal.
12. In the appeal, it is contended, inter alia, that the courts below, having held that the transaction was never intended for the benefit of defendant No. 2, erred in holding that defendant No. 1 purchased the same without notice of the fact that defendant No. 2 was only a benamidar. Further, it was argued that the learned civil judge, failed to notice that it was not for the appellant-plaintiff to establish that the first defendant had the notice of the benami nature of the transaction It is submitted that, under section 41 of the Transfer of Property Act, it was for the first defendant to establish that the purchased the property after reasonable care to ascertain that the transferee had the power to make the transfer and that he had acted in good faith.
13. Learned counsel appearing for defendant No. 5 strenuously contended that the provisions of the Benami Transactions (Prohibition) Act, 1988, had come into force, which has put a complete bar to the plaintiff’s suit against the defendant in respect of the suit schedule property. He submitted that, as the lower appellate court had come to the conclusion on point No. 1 that the purchase made under exhibit P-13 dated July 19, 1928, was a benami transaction, in view of the prohibition incorporated in section 4 of the Act, the suit was liable to be dismissed on that ground itself.
14. In this appeal, the finding of the first appellate court that the transaction was one of benami has not been seriously questioned by the respondent. The appellant-plaintiff, relaying on the finding of the first appellate court that the transaction was one of benami, has argued that the lower court had erred in holding that the first defendant-respondent could not have had notice of the benami nature of exhibit P-13 at the time he purchased the property. Elaborating his argument on this point, he relied on a decision of the Patna High Court in Ramsaram Mohton v. Harihar Prasad, .
15. Learned counsel for the Appellant has taken us through the evidence and the pleadings in the case. Exhibit D-4 is the registered document which came to be executed by the deceased defendant No. 2, Gangamma, in favour of Madamma under which half portion of the entire property purchased under the original of exhibit P-13 was sold to her. The said document was attested by Gangappa, appellant-plaintiff’s father, as well as by defendants Nos. 3 and 4. They are exhibits D-1 and D-4. In all these documents, there is a recital that the deceases Gangamma, defendant No. 2, was the absolute owner of the property and the deceased Gangappa had no right to the property. By the attestation of the original document, exhibit D-4, in which there was a clear recital to the effect that Gangamma was the absolute owner of the property. By attestation of the document by Gangappa, the plaintiff and defendants Nos. 3 and 4, they gave an impression to anyone reading that document that Gangamma was the absolute owner of the property even though she was only a benamidar. Therefore, it is quite natural that, on going through the document, the first defendant had not considered that any further enquiry as to whether Gangamma had title to the other half of the same property was called for. As per section 41 of the Transfer of Property Act, in order to bind the first defendant about the benami nature of the transaction, it is to be established by the appellant-plaintiff that the first defendant had either actual or constructive notice of the benami nature of the transaction under exhibit P-13. On the other hand, there were recitals in the document, exhibit D-4, clearly stating that the deceased, Gangamma, was the absolute owner of the property which made any further enquiry by the first defendant as to whether Gangamma was the real owner unnecessary. The appellant/plaintiff has not placed any material to establish that defendant No. 1 had notice either actual or constructive of the benami nature of the transaction of exhibit P-13. The fifth defendant-respondent No. 7 is the purchaser of the property during the pendency of the suit and that being so he would be entitled to the benefit of the finding in favour of first respondent-defendant No. 1.
16. In the case of Ram Coomarkoondoo v. MC. Queen 18 Suth WR 166, a decision of the Privy Council, it was observed as follows (see ) :
“It is a principle a nature equity, which must be universally applicable, that where one man allows another to hold himself out as the owner of the estate, and the third person purchased it, for value, from the apparent owner in the belief that he is the real owner, the man who so allows the other to hold himself out shall not be permitted to recover upon his secret title, unless he can overthrow that of the purchaser by showing either that he had direct notice, or something which amounts to constructive notice of the real title, or that there existed circumstances which ought to have put him upon an enquiry, that, if prosecuted, would have led to a discovery of it.”
17. In this case, the appellant-plaintiff has not established that respondent No. 1/defendant No. 1 had actual or constructive notice of the benami nature of the transaction. It is relevant to note that the deceased defendant No. 2’s husband, Gangappa, always represented that the suit property was absolute poverty of his wife. After his death, his heirs would he as much bound by the father’s representation as he would have been during his life-time. The decision of the Patna High Court, , cited by learned counsel for the appellant is of no assistance to the point urged by him, that respondent No. 1/defendant No. 1 was not a bona fide purchaser without notice either actual or constructive of the benami nature of the transaction. This case is distinguishable on facts. Moreover, the finding of a final court of fact recorded by the first appellate court, in this case on the said point, it that the defendant was a bona fide purchaser for value without notice of the benami nature of the transaction. This court cannot interfere with the said finding of fact in a second appeal, as held by the Supreme Court in Deity Pattabhiramaswamy v. S. Hanumayya, AIR 1959 SC 57, in which the Supreme Court said that, upon the exclusive question of fact even though erroneous the High Court would have no jurisdiction to entertain a second appeal.
18. We will not take up the two points referred by B. P. Singh J., as well as the contention of learned counsel for respondent No. 7, Mr. B. P. Holla, that the provisions of section 4 of the Benami Transactions (Prohibition) Act, 1988 (Act 45 of 1988), have put a complete bar to the plaintiff’s suit against the defendant in respect of the suit property.
19. To answer these points, it is necessary to quote the relevant provisions of the Act. Section 2(a), sections 3 and 4 of the Act read :
“2. Definitions. – In this Act, unless the context otherwise requires, –
(a) ‘benami transaction’ means any transaction in which property is transferred to one person for a consideration paid or provided by another person.”
“3. Prohibition of benami transactions. – (1) No person shall enter into any benami transaction.
(2) Nothing is sub-section (1) shall apply to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter.
(3) Whoever entries into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
(4) Notwithstanding anything contained in the Code of Criminal Producer, 1973 (2 of 1974), an offence under this section shall be non-cognizable and bailable.
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 is 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 of owner of such property.
(3) Nothing in this section shall apply, –
(a) where the person in whose 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; or
(b) where the person in whose name the property is held is a trustee other person standing in a fiduciary capacity, and the property is held for the benefit of another for whom he is trustee or towards whom he stands in such capacity.”
20. This is an important piece of legislation which not only seeks to abolish the age old concept of benami transaction and the judicial acceptance of the doctrine by putting a bar on the right to recover property held benami by a real owner, but also declares a benami transaction as illegal with penal consequences.
21. Section 3(1) of the Act specifically says that no person shall enter into a benami transaction. Sub-section (2) of section 3 of the Act specifies that sub-section (1) shall not apply to purchase of property by any person in the name of his wife or unmarried daughter and, in such a case, it shall be presumed, unless the contrary is proved, that the property had been purchased for the benefit of the wife or for the unmarried daughter, as the case may be. Sub-section (3) of section 3 of the Act provides that whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or both. Sub-section (4) of section 3 of the Act, says that notwithstanding anything contained in the Code of Criminal Procedure, an offence under section 3 of the Act shall be non-cognizable and bailable. The purport of section 4(1) of the Act is that no plaintiff can seek a declaration that the defendants is a benamidar of any particular property. Similarly, the purport of section 4(2) is that in a suit for recovery of property in the possession of the defendant based on the title of the plaintiff to the property, a defendant cannot plead that the plaintiff was only a benamidar for the defendant. Sub-section (3) of section 4 of the Act deals with two exceptions to the general rule of prohibition to the right to recover property held benami incorporated in sub-section (1) and sub-section (2) of section 4 of the Act.
22. This provision of the Act has already been the subject-matter of interpretation by the Supreme Court in the case of Mithilesh Kumari v. Prem Behari Khare [1989] 177 ITR 97. Relevant portion of the judgment reads (at p. 107) :
“We read in Maxwell that it is a fundamental rule a English law that no statute shall be construed to have retrospective operation unless such a construction appears very clearly at the time of the passing of the Act, or arises by necessary and distinct implication. A retrospective operation is, therefore, not to given to a statute so as to impair an existing right to obligation, otherwise than as regards matters of procedure unless that effect cannot be avoided without doing violence to the language of the enactment. Before applying a statue retrospectively, the court has to be satisfied that the statute is an fact retrospective. The presumption against retrospective operations is strong in cases in which the statute, if operated retrospectively, would prejudicially affect vested rights or the illegality of the past transactions, or impair contracts, or impose a new duty or attach a new disability in respect of past transactions or consideration already passed. However, a statute is not properly called a retrospective statute because a part of the requirities for its action is drawn from a time antecedent to its passing. We must look at the general scope and purview of the statute and at the remedy sought to be applied, and consider what was the former state of law and what the legislation contemplated. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive. But laws made justly and for the benefit of individuals and the commodity as a whole, as in this case, may relate to a time antecedent to their commencement. The presumption against retrospectivity may in such cases be rebutted by necessary implication from the language employed in the statute. It cannot be said to be an invariable rule that a statute could not be retrospective unless so expressed in the very terms of the section which had to be construed. The question is whether on a proper construction the Legislature may be said to have so expressed its intention.”
23. “As defines in section 2(a) of the Act, ‘benami transaction’ means ‘any transaction in which property is transferred to one person for a consideration paid provided by any other person’. A transaction must, therefore, be benami irrespective of its date or duration. Section 3, subject to the exceptions, state that no person shall enter into any benami transaction. This section obviously cannot have retrospective operation. However, section 4 clearly provides that 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. This naturally to past transaction as well. The expression ‘any property held benami’ is not limited to any limited to any particular time, date or duration. Once the property is found to have been held benami, no suit, claim or action to enforce any right in respect thereof shall lie. Similarly, sub-section (2) of section 4 nullifies the 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 in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. It means that once a property is found to have been held benami, the real owner is bereft of any defence against the person in whose name the property is held or any other person. In other words, in its sweep section 4 envisages past benami transactions also within its retroactivity. In this sense, the Act is both a penal and a disqualifying statute. In the case of a qualifying or disqualifying statute, it may be necessarily retrospective. For example, when a law of representation declares that all who had attained 18 years shall be eligible to vote, those who attained 18 years in the past would be as much eligible as those who attained that age at the moment of the law coming into force. When an Act is declaratory in nature, the presumption against its retrospectivity is not applicable. Acts if those kind only declare. A statute in effect declaring the benami transaction to be unenforceable billings to this type. The presumption against taking away a vested right will not apply in this case inasmuch as under the law it is the benamidar in whose name the property stands, and law only enable the real owner to recover the property from him which right has now been ceased by the Act. In one sense, there was a right to recover or resist in the real owner against the benamidar. Ubi jus ibi remedium. Where there is a right, there is a remedy. Where the remedy is barred, the right is rendered unenforceable. In this sense, it is a disabling statute. All the real owners are equally affected by the disability provision, irrespective of the time of creation of the right. A right a legally protected interest. The real owner’s right was hitherto protected and the Act has resulted in removal of that protection.
24. 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 transaction” (at pages 108, 109).
“Counsel for the respondent lastly submits that nobody should be allowed to suffer for fault of the court. As the maxim goes, actus curiae nemimem gravabit. Nobody should suffer for an act of the court. However, the delay in disposal of an appeal cannot be termed an action of the court. The consequence is that the plaintiff-respondent’s suit or action cannot be decreed under the law; and hence the decree passed by the lower courts is annihilated and the suit dismissed” (at page 110).
25. The ratio of the decision as is discernible from the above paragraphs can be summarised thus :
(1) Sub-section (1) of section 3 which prohibits entering into benami transaction and sub-section (3) of section 3 which makes the act of entering into benami transactions an offence are prospective in operation.
(2) Section 4(1) which bars the right to a remedy to enforce any right in respect of any property alleged to be held benami by the defendant and section 4(2) which bars a defence by a defendant in a suit for enforcement of any right in respect of any property based on the title of the plaintiff, that the plaintiff was only a benamidar, applies not only in respect of pending proceedings based on past benami transactions, whether in the trial court or the appellate court, but also to proceedings initiated or defence taken after the commencement of the Act in respect of transactions entered into either prior to the commencement of the Act or after the commencement of the Act.
26. As far as this case is concerned, this is a suit instituted prior to the commencement of the Act of enforce a right defendant No. 2 and against the purchaser from her in respect of the suit property on the ground that she held the property benami for her husband, the father of the appellant, and their sons. Therefore, in view of the ratio of the judgment of the Supreme Court, the bar operates, though the matter is pending in appeal. On this ground alone, the appeal is liable to be dismissed.
27. The other question for consideration is, whether sub-section (3) of section 4 can be relied on by the appellant to say that the suit is maintainable. Under sub-section (3), two exemptions are provided to the bar created by section 4(1) and (2) of the Act. The exception are :
(i) where the person in whose name the property is held is a coparcener in a Hindu family undivided family and the property is held for the benefit of the coparceners in the family; and
(ii) 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.
28. In our opinion, the case does not fall under either of the two exceptions. It does not fall at all under the first exception, for the reason that the property was in the name of Gangamma and not a coparcener. The second exception is also not attracted to the case for the reasons that the only plea in the plaint was that the suit property was really that of the father and that the second defendant was only a benamidar. There was no alternative plea to the effect that the property was held by the second defendant-mother as a trustee for the benefit of the plaintiff and her other children, or being a mother who stood in a fiduciary capacity to the plaintiff and her other children head the suit property for the benefit of the plaintiff and other children of hers, on the other hand, the attestation of the sale deed, exhibit D-4, by the appellant and defendants Nos. 3 and 4, in which there was a clear recital that the property in question, half of which was sold under that deed, billings absolutely to Gangamma, is inconsistent with any such situation.
29. Another question of law which arises for consideration in this appeal is, whether sub-section (2) of section 3 has prospective or retrospective operation. If it has retrospective operation, then, by the force of the provision, it has got to be presumed that the property was purchased for the benefit of Gangamma by her husband. In our opinion, the said question stands answered by necessary implication by the judgment of the Supreme Court in Mithilesh Kumari [1989] 177 ITR 97, in which the Supreme Court held that section 3 is prospective in operation. As can be seen from the language of section 3(1), it says that no person shall enter into benami transaction. From the very language of the provision it is clear that it is prospective in operation, for the reason that the prohibition to enter into a benami transaction, in the nature of things, can apply to transaction taking place after the coming into force in the Act. Further, sub-section (3) of section 3 makes the act of entering of into benami transactions punishable and also provides for imposition of punishment with imprisonment which may extend to 3 years or with fine or both. Therefore, the provision can only be respective in operation, in view of article 20(1) of the Constitution, which provides that, no person shall be convicted for any offence except foe violation of the law in force at the time of the commission of the Act charged as an offence. Sub-section (2) of section 3 which ways that nothing sub-section (1) shall apply to the purchase of property by a person in the name of his wife or in the name if his unmarried daughter and, in such a case, it shall be presumed, unless the contrary in proved that the said property was purchased for the benefit of the benefit of the wife or unmarried daughter, as the case may be, is only in the nature of an exception to section 3(1). Therefore, its scope cannot be wider than that of section 3(1), for, an exception has to operate within the area covered by the clause to which it is an exception. The real purport of sub-section (2) is that, even after the coming into force of the Act under which the act of entering into benami transactions is prohibited and it is also made an offence, it is open to an individual to pay the entire consideration for the purchase of the property and purchased the property in the name of his wife or unmarried daughter, and doing so does not fall within the prohibition incorporated in section 3(1) and does not constitute an offence under section 3(3) of the Act, but, when so done, the property so purchased becomes the absolute property of the wife or the unmarried daughter, as the case may be, and it will not be deemed to be a benami transaction. Therefore, it is clear that sub-section (2) which is in the nature of an exception to sub-section (1), which is prospective in operation, is also prospective in operation. As far as past transactions, namely, purchase of properties by a person in the name of any other person, including the purchase in the name of wife or unmarried daughter, prior to the commencement of the Act are concerned, section 4 would apply and, therefore, no suit would lie by anyone on the plea that such person in whose name the property was purchased was only a benamidar.
30. To sum up, our answer to the question of law arising for consideration in this appeal are :
(1) Sub-section (1) of section 3 of the Act which prohibits the entering into any benami transaction, i.e., transfer of property in favour of a person for a consideration paid or provided by another has only a prospective operation. Sub-section (2) of section 3 which provides that nothing in sub-section (1) shall apply to the purchase of property by any person in the name of his wife or unmarried daughter, and when so purchased it shall be presumed that, unless the contrary is proved, that the said property had been purchased for the benefit of such wife or the unmarried daughter, being in the nature of an exception is also prospective in operation.
(2) The bar to the enforcement of the right in respect of any property on the allegation that the property concerned is held “benami” by the person concerned, as also the bar to the defence that the person who wants to enforce any right in respect of any property was only a benamidar, operates in all such cases, irrespective of the fact that the transaction were prior to the commencement of the Act or subsequent and irrespective of the fact whether the matter is pending in the trial court or any of the appellate courts, unless the case falls under the two exception incorporated in section 4(3) (a) and (b), i.e., the property is held by a person in his name as a coparcener of a Hindu undivided family [vide clause (a)] or the person in whose name the property is held, is a trustee or is a person standing in a fiduciary capacity, for the benefit of a person for whom he is trustee or towards whom he stands in a fiduciary capacity [vide clause (b)].
31. As far as the present case in concerned, it is true that the purchase of the property by the father of the plaintiff/appellant was in the name of his wife, Gangamma, defendant No. 2. Even so, section 3(2) is not attracted as it has to retrospective effect. But section 4(1) is attracted. Therefore, the appeal of the appellant is liable to be dismissed, in view of the bar created by section 4 of the Act, as the appellant is seeking to enforce a right in respect of the suit property held in the name of the second defendant on the plea that she was only a benamidar for her husband, i.e., the father of the appellant, and as the case does not fall within the two exception provided for in sub-section (3) of section 4 of the Act.
32. In the result, we make the following order :
The appeal is dismissed with costs.