RFA 48/2000 BEFORE HON’BLE MR. JUSTICE B.P. KATAKEY JUDGMENT & ORDER (oral) This appeal by the plaintiff is directed against the judgment an d decree dated 5th January, 2000 passed by the learned District Judge, Bongaigao n in Title Suit No.17/1994, whereby and where-under the suit of the plaintiff wa s dismissed. 2. The appellant as plaintiff instituted the aforesaid suit being T itle Suit No.17/1994 in the Court of the learned District Judge, Bongaigaon clai ming right, title and interest in respect of 3 Bighas 2 Kathas 18 Lechas of land and also for recovery of khas possession in respect of the land measuring 2 Big has 1 Katha 18 Lechas, which is part of the aforesaid 3 Bighas 2 Kathas 18 Lecha s of land, contending inter alia that on 9th January, 1974 he alongwith the prof orma defendant No.4 purchased the plot of land measuring 4 Bighas 1 Katha 14 Lec has from one Anowar Hussain by registered deed of sale (Exhibit-2) and on 27th F ebruary, 1976, he alongwith the proforma defendant Nos.4 and 5 purchased the plo t measuring 4 Bighas 1 Katha 3 Lechas from one Kutub Uddin Sheikh by a registere d deed of sale (Exhibit-1). According to the plaintiff, out of the land measuri ng 4 Bighas 1 Katha 14 Lechas, which has been purchased on 9th January, 1974 (Ex hibit-2), he is entitled to half and in respect of the land measuring 4 Bighas 1 Katha 3 Lechas, which was purchased vide Exhibit-1, he is entitled to 1/3rd and thereby entitled to right, title and interest over the total land of 3 Bighas 2 Kathas 18 Lechas. It is also the pleaded case of the plaintiff that on 8th Dec ember, 1993, taking advantage of his absence, the defendant Nos.1 to 3, who are his brothers trespassed into the land measuring 2 Bighas 1 Katha 18 Lechas, desc ribed in Schedule-B, which is part of 3 Bighas 2 Kathas 18 Lechas of land descri bed in Schedule-A and though they were asked to vacate the land, they having not done so, the suit has to be filed. 3. The defendant Nos.1 to 3 contested the suit by filing written st atement contending inter alia that the plaintiff and the defendants being brothe rs are the members of the Hindu joint family and the Karta of the family, who wa s the eldest brother, namely Rudreswar Paul, purchased the aforesaid land vide E xhibit-1 and Exhibit-2 sale deeds in the name of the plaintiff and the proforma defendant Nos.4 and 5 out of the family fund, when the plaintiff and the proform a defendant Nos.4 and 5 were minor. The defendants, therefore, pleaded in the w ritten statement that they are also entitled to the share in the said land. 4. On the basis of the pleadings of the parties, the following issu es were framed for consideration and decision by the learned Court below:- 1. Whether the plaintiff has cause of action for the suit? 2. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? 3. Whether the plaintiff’s story of possession in and dispossession from the sui t land is true? 4. Whether the suit is barred by limitation under Article 65 of the Limitation A ct? 5. Whether the plaintiff has subsisting right in and title to suit land? 6. To what relief, if any the parties are entitled to? 5. The plaintiff/appellant in support of his claim examined 3 (thre e) witnesses and proved a number of documents. The defendant Nos.1, 2 and 3 hav e also examined 4 (four) witnesses. The parties have cross-examined their respec tive witnesses. 6. The learned Court below, upon appreciation of the evidences on r ecord, by the impugned judgment and decree dated 5th January, 2000 dismissed the suit of the plaintiff by holding that the plaintiff as well as the proforma def endant Nos.4 and 5 on the dates of the purchase, i.e. on 9th January, 1974 and 2 7th February, 1976, were minor and the property was purchased by the Karta of th e family, namely Rudreswar Paul, from the joint family fund and in the name of t he plaintiff and the proforma defendant Nos.4 and 5, who had no independent inco me. Hence the present appeal. 7. I have heard Mr. A. Dasgupta, learned counsel for the appellant. None appears for the respondents despite service of notice. 8. It has been contended by Mr. Dasgupta, learned counsel for the a ppellant that the learned Court below ought not to have dismissed the suit of th e plaintiff by holding that the suit property was purchased by the eldest brothe r, namely Rudreswar Paul, in the name of the plaintiff and the proforma defendan t Nos.4 and 5, in view of the provisions of the Benami Transactions (Prohibition ) Act, 1988 (in short, 1988 Act ). Referring to Sub-Section 2 of Section 4 of the said Act, it has been submitted by Mr. Dasgupta that since taking of defence in any suit in respect of the property held benami prohibited, the defence set up by the defendant Nos.1 to 3 that the property was purchased by the karta in t he name of the plaintiff and the proforma defendant Nos.4 and 5 out of the famil y fund ought not to have accepted by the learned Court below, the same being con trary to the provisions of the 1988 Act. Referring to the decision of the Apex Court in Mithilesh Kumari & Anr. -Vs- Prem Behari Khare reported in (1989) 2 SC C 95, it has also been submitted by Mr. Dasgupta that though the sale transactio ns were of the years 1974 and 1976, the provisions of the 1988 Act shall apply, the same being retrospective in nature. The learned counsel, therefore, submits that the suit of the plaintiff be decreed by setting aside the judgment and dec ree passed by the learned Court below. 9. I have considered the submission of the learned counsel for the appellant and also perused the pleadings of the parties in the plaint as well as in the written statement. I have also perused the evidences adduced by the par ties. 10. The plaintiff instituted the suit for declaration of right, titl e and interest in respect of the Schedule-A land and for recovery of khas posses sion in respect of Schedule-B land, claiming that he alongwith the proforma defe ndant No.4 purchased the land vide Exhibit-2 sale deed dated 9th January, 1974 a nd alongwith the proforma defendant Nos.4 and 5 vide Exhibit-1 sale deed dated 2 7th February, 1976, and, therefore, became the owner in respect of half of the l and in Exhibit-2 sale deed and 1/3rd of the land in Exhibit-1 sale deed. It is not the pleaded case of the plaintiff that though the land was purchased by his elder brother, since it was purchased in his name, he is protected under the pro visions of the 1988 Act. The defendant Nos.1 to 3, on the other hand, has plead ed in the written statement that the land was purchased by the Karta of the fami ly, namely Rudreswar Paul, for the benefit of the joint undivided Hindu family a nd out of the joint family fund. 11. The plaintiff though examined 3 (three) witnesses, they could no t prove that the land was purchased vide Exhibits-1 and 2 sale deeds out of thei r own fund. On the other hand, the defendant Nos.1 to 3 by adducing evidence co uld prove that the plaintiff and the proforma defendant Nos.4 and 5 were minor a t the relevant point of time and they had no independent source of income. The defendant Nos.1 to 3 could also prove by adducing evidence that the suit land wa s purchased by the karta of the joint undivided Hindu family, i.e. Rudreswar Pau l, the eldest brother, for the benefit of the members of the family and from out of the joint family fund. 12. The Apex Court in Mithilesh Kumari (supra) has held that the pro visions of the 1988 Act shall apply to any pending suit or the appeal arising ou t of such suit, irrespective of the date of the transaction, that is to say, eve n if in respect of the transaction, which were completed prior to the 1988 enact ment. That being the position, the provisions of 1988 Act shall apply in the p resent suit also the same having been instituted in the year 1994. 13. Sub-Section (2) of Section 4 of the 1988 Act provides that no de fence 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, shal l be allowed in any suit, claim or action by or on behalf of a person claiming t o be the real owner of such property. Therefore, no defence can be set up by an y defendants in a suit filed by any other person claiming that such property was purchased by such defendant benami. 14. There is, however, an exception in Sub-Section (3) of Section 4 of 1988 Act, which reads as under:- (3) Nothing in this section shall apply,- (a) where the person in whose name the property is held is a coparcener in a Hin du 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 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. 15. It is evident from Sub-Section (3) of Section 4 of the Act, as r eproduced above, that the provisions of Section 4 do not apply (a) where the per son in whose name the property is held is a coparcener in a Hindu undivided fami ly 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 or other p erson 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 ca pacity. 16. As discussed above, it is the plea of the defendant Nos.1 to 3 i n the written statement, which they could prove by adducing cogent and reliable evidence that the property was purchased by the karta of a Hindu undivided famil y, namely Rudreswar Paul, in the name of the plaintiff and the proforma defendan t Nos.4 and 5 out of the joint family fund and for the benefit of all the member s of the family. That being the position, the prohibition imposed by Sub-Sectio n (2) of Section 4 from setting up of defence on any right in respect of any pro perty held benami, is not applicable in the instant case. 17. In view of the aforesaid discussion, I do not find any merit in the present appeal to interfere with the impugned judgment and decree passed by the learned Trial Court and hence, the appeal is dismissed. The impugned judgme nt and decree passed by the learned Trial Court is upheld. However, keeping in view the facts and circumstances of this case, the parties are directed to bear their own cost throughout. 18. Registry is directed to send down the records forthwith.