The Benami Transactions (Prohibition) Act, 1988 is retrospective in operation and applies to pending proceedings. The prohibition under Section 4(2) of the Act applies not only to the real owner but also to successors-in-interest.

( 1 ) THE question that was now argued after the second appeal was posted for ehearing was that in view of the Benami Transactions (Prohibition) Act, 1988 (hereinafter referred to as the Act ) (the defendants are not entitled to raise the plea that the property was purchased by Shaik Ali in the year 1924 benami in the name of Abdul Khadar and the sale deed was nominally executed in the name of Abdul Khadar but the property was purchased for the benefit of Shaik Ali. The question whether the real owner of the property is entitled to plead the benami nature of transaction was considered by the Supreme Court in Mithilesh Kumari vs. Prem Behari Khare. It was held that the Act is retrospective in operation. Therefore, in view of the said judgment the defendants are not entitled to plead that the property was purchased benami in the name of the plaintiff.

( 2 ) IN Duvuru Jaya Mohana Reddy vs. Alluru Nagi Reddy the Supreme Court reiterated what they have stated in Mithilesh Kumari vs. Prem Behari Khare. The relevant observations are as follows:"it has been held that the said provision would apply to proceedings pending on the date of the commencement of the Act and the provisions were held applicable to an appeal that was pending in this Court. In view of the said decision it must be held that the defence raised by the contesting respondents that the transaction of sale under the sale deed dated October 9,1956 executed in favour of the appellants was a benami transaction is prohibited in view of Section 4 (2) of the Act. "

( 3 ) THE finding of both the Courts below is that the property was purchased benami in the name of Abdul Khadar. That being a finding of fact, cannot be interfered in a second appeal under Section 100 of the Code of Civil Procedure. In view of the said finding and in view of the judgments of the Supreme Court referred to above, the defendants are debarred from raising the said plea under Section 4 (2) of the Act.

( 4 ) SRI Y. G. Krishna Murthy, the learned Counsel appearing for the respondents, contended that the prohibition under Section 4 (2) of the Act is applicable only to the real owner and not successors-in-interest. The learned Counsel also relied on a judgment of this Court in Mohd. Yousuf Ali vs. Ghousia Begum. That was a case where a suit for partition in respect of matruka property was filed, which was contested by the 1st defendant on the ground that the properties are his exclusive properties and whereas defendants 2 to 4 claimed item Nos. 1 to 3 of the plaint schedule properties under an oral gift. The suit was decreed for partition. During the pendency of the appeal the Act was brought into force and, therefore, the appellants filed C. M. P. No. 18096 of 1989 raising an additional ground that even assuming that item No. 2 of plaint b schedule house and item Nos. 1 and 2 of plaint a schedule lands are Benami in the name of the 1st defendant, yet they are not liable to be partitioned under the provisions of sub-sections (1) and (2) of Section 4 of the Act. It was held that a reading of Section 4 (1) of the Act dearly shows that the intention of the legislature is not to prohibit every type of benami transaction but only suits filed or claims made by a person claiming to be the real owner of the property. The intention of the legislature does not seem to cover every type of transaction or to prohibit any type of suit including of a suit for partition".

( 5 ) THE above judgment is clearly distinguishable as it was a suit for partition and the learned judges are right in holding that the suit for partition is not prohibited under the Act. The contention of the learned Counsel that the Act is applicable only to claims made by the real owner but not successors-in-interest cannot be accepted. In this context I may refer to the language used under Section 4 (1) of the Act. It reads as follows:"4. Prohibition of the right to recover property held benami:- (1) No suit, claim or action t