P. KODANDARAMAYYA, J, J.

( 1 ) THE plaintiffs are the appellants. The suit was laid for partition of plaint A and B schedule properties and for separate possession of one-sixth share. The plaint case is that the first plaintiff is the wife of one Devallu who is the brother of defendants Nos. 3 and 4 and the son of the first defendant. He died in the year 1972 intestate. During his lifetime, he executed a nominal document on December 22, 1965, relinquishing the property in favor of the first defendant. None the less, he lived as a member of the joint family and died as a member of the said family. The said document was never intended to be acted upon but was executed to protect the property against his wayward life. After the death of Devallu, the defendant did not heed to the request of the first plaintiff to perform the marriage of the second plaintiff. Hence, the suit for recovery of shares in the plaint A and B schedule properties.

( 2 ) THE defendants contested the claim stating that the relinquishment deed executed by Devallu (exhibit A-1) is true, valid and binding on the plaintiffs since the date of the execution and Devallu lived separately and he had nothing to do with the joint family and the present suit is not maintainable. On this controversy, the court below framed issues as found in paragraph 7 of the judgment and held that the execution of exhibit A-1 is true, valid and binding on the plaintiffs and the plaintiffs are not entitled to claim any share in the suit properties and consequently dismissed the suit. Against the said judgment and decree, the present appeal is filed.

( 3 ) LEARNED counsel for the plaintiffs urged that exhibit A-1 is a nominal one and the finding of the court below to the contrary is vitiated. Besides refuting this contention, learned counsel for the defendants contended that this plea, besides being incorrect, cannot be entertained in view of the provisions of the Benami transactions (Prohibition of the Right to Recover Property) Ordinance (2 of 1988 ).

( 4 ) THUS, it is seen that two questions arise for consideration : (1) Whether the plea of benami is hit by the Ordinance (2 of 1988) ? (2) Whether exhibit A-1 is true and binding on the plaintiffs ?

( 5 ) ON the first question, we must look to the provisions of the Ordinance (2 of 1988 ). The preamble says : "an Ordinance to prohibit the right to recover property held benami and for matters connected therewith or incidental thereto". Section 2 prohibits the right to recover property held benami. Whether the Ordinance has retrospective operation or not is a matter of some debate. In fact, I referred this question to a Division Bench. Assuming that the Ordinance is retrospective in operation, the true effect of section 2 is to prohibit a suit, claim or action to enforce any right in respect of any property held benami. Section 2 bars the enforcement whether a person figures as a plaintiff or a defendant. The question now for the purpose of this appeal is, whether the word "benami" occurring in section 2 includes the plea that the transaction is a nominal one. The word "benami" is used to denote two classes of transactions which differ from each other in their legal character and incidents. In Sree Meenakshi Mills Ltd. v. CIT [1957] 31 ITR 28, it was held by the Supreme Court thus (at p. 52) :"in one sense, it signifies a transaction which is real, as for example, when A sells properties to B but the sale deed mentions X as the purchaser. Here the sale itself is genuine, but the real purchase is B, X being his benamidar. This is the class of transactions which is usually termed as benami. But the word benami is also occasionally used, perhaps not quite accurately, to refer to a sham transaction, as for example, when A purports to sell his property to B without intending that his title should cease or pass to B. The fundamental difference between these two classes of transactions is that whereas in the former there is an operative transfer

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