A review petition cannot consider aspects not framed as questions at the time of admission or hearing of the second appeal.

1. This petition under Order XLVII, Rule 1 of the Code of Civil Procedure on behalf of the plaintiff is for review of the judgment dated 16th May, 1991 in Second Appeal No. 248 of 1985 whereby and whereunder a learned single Judge of this Court had set aside the judgment and decree of the first appellate Court as well as that of the learned Subordinate Judge, in Title Suit No. 56 of 1989.

2. The plaintiff claimed title on the basis of the purchase in the year 1963 from Duryodhan Khan who was a settlee of the property in suit. According to the plaintiff, Smt. Kamla Sundari Devi, wife of Duryodhan Khan was a benamidar of such property for her husband. On the other hand, the defendants had purchased the property from Hari Bala Dasi daughter of Kamla Sundari Devi some time in the year 1968. Admittedly, Kamla Sundari Dasi had only one daughter.

3. The learned Subordinate Judge, while disposing of the title suit as well as the Additional District Judge by his final judgment in appeal, held that the real owner of the property was the husband, namely, Duryodhan Khan and title of Kamla Sundari Dasi was ostensible. Accordingly, the defendants were directed to give vacant possession of the suit property to the plaintiff.

4. As would appear from the judgment under review, only substantial question of law framed for consideration was "whether the Courts have decided the question of Benami ownership of the property in the correct legal manner specially in regard to the onus?" After hearing the parties on the aforesaid question, the learned single Judge held that in view of decision in the case of Kanailal Mitra V/s. Pannasashi Mitra, AIR 1954 Cal 508 , such a question has become infructuous since it has now been decided that the Benami Transaction (Prohibition of the Right to Recover Property) Act applies to a pending case even before the appellate Court retrospectively. Therefore, no person can claim a property as being real owner even though the property stands in the name of somebody else. The law which enabled the owner to recover a property has now been eliminated by operation of the Benami Transaction (Prohibition of the Right to Recover Property) Act. In other words, the right to recover and / or resist recovery by the real owner against benami now stands extinguished. With these findings, judgments of both the Courts below were set aside.

5. Learned counsel for the petitioner, contended that the learned single Judge failed to appreciate that both the Courts below had recorded a finding that Haribala Dasi was an unchaste lady, therefore, not entitled to inherit the suit property from her father Duryodhan Khan or mother Kamla Sundari Dasi. He contended that under Dayabhaga School, an unchaste lady was not entitled to inherit property of her father or mother. Therefore, the sale deed executed in favour of the defendants on 14-8-1968 by such unchaste lady was illegal and void. In support of his contention, learned counsel placed reliance to the decisions in the case of Nogendra Nandini Dassi V/s. Venoy Krishna Deb, ILR (1903) 30 Cal 521, Bhaba Kanta Pachani V/s. Kerpai Chutia, AIR 1935 Cal 144; Ramaiya Konar V/s. Mottayya Mudaliar, AIR 1951 Mad 954 (FB) and Kanailal Mitra V/s. Pannasashi Mitra, AIR 1954 Cal 508.

6. The learned counsel contended that in spite of specific findings of the Courts below and settled norms by various decisions, as noticed above, this aspect of the matter was completely ignored by the learned Judge while disposing of the second appeal.

7. In my view, since no such question was framed at the time of admission or hearing of the second appeal, it is not open for me to consider all these aspects while hearing a petition of review under Order XLVII of the Code of Civil Procedure.

8. Mr. Singh next contended that the learned single Judge, has set aside the judgments of both the Courts below on a solitary ground that effect of Sec. 4(1) and (2) of the Act was to be made retrospective. But the aforesaid judgmen