The Benami Transactions (Prohibition) Act, 1988, is retrospective in operation and renders benami transactions unenforceable, including suits filed before the Act but pending on the date of commencement of the Act.

( 1 ) THIS appeal is directed against the judgment and decree dated 23rd April, 1975 passed by the learned Additional District Judge, 2nd Court, Alipore, in Title Appeal No. 148 of 1973, affirming those of the learned Munsif, 3rd Court, Alipore, in Title Suit No. 326 of 1969.

( 2 ) THE appellant instituted the said suit for a declaration that the defendant No. 5, her husband, was a benamdar of the plaintiff in respect of the suit property and for permanent injunction restraining the defendant Nos. 1 to 4 from attaching the suit property for recovery of the Income Tax dues from the defendant No. 5. The plaintiff's case was that her father Bhupendra Nath Mitra was a Zaminder and an Advocate at Suri and her maternal grandfather Prafulla Chandra Sinha had vast landed property, Bank deposits etc. and the plaintiff with others succeeded to the estate of Prafulla Chandra Sinha and got a considerable sum of money. The plaintiff also got considerable ornaments and jewelleries and cash money from her father, maternal uncle, grandfather and other relations. The plaintiff was always in affluence and received much money from her relations. Defendant No. 5, husband of the plaintiff, was very lavish in expenditure. He lived beyond his means and despite the plaintiff's insistent desire to curb his habit of extravagance he could not mend his habit. The plaintiff, apprehending that her future life might not be happy because of the extravagance of her husband, wanted to make some provisions for herself and accordingly purchased the disputed plot of land on 8. 9. 59. Thereafter she gradually erected constructions on the land and the house was still incomplete. The plaintiff purchased the land with her own money and the entire costs of construction of the house were, borne by the plaintiff from her own Stridhan funds. Defendant No. 5 was a mere benamdar having no right, title, interest or possession in the suit property. In June 1969, the plaintiff came to learn that the suit property was being attached for the Income Tax dues of the defendant No. 5. Defendants Nos. 1 to 4 have no right to proceed against or attach the suit property of the plaintiff for recovery of the dues of the defendant No. 5. Hence, the suit after service of notice under section 80 of the Code of Civil Procedure.

( 3 ) DEFENDANTS Nos. 1 and 2 contested the suit by filing written statements; inter alia, on the ground that the defendant No. 5 was not the benamdar of the plaintiff and that in order to save the property from attachment for the Income Tax dues of her husband, the plaintiff had filed the false suit in collusion with defendant No. 5. It was the specific case of the defendant No. 2 that the defendant No. 5 purchased the suit land with his own money and constructed the- house from his own funds. Defendant No. 5 was a respectable Chartered Accountant having practice for the last 30 years and he had considerable earning therefrom as well as from the Articled clerks and other sources. A huge amount of Income Tax dues from defendant No. 5 was lying unpaid and in order to avoid payment and save the property from attachment, defendant No. 5 had really filed the suit in collusion with the plaintiff.

( 4 ) UPON a consideration of the entire evidence on record and the facts and circumstances of the case, the learned Munsif did not accept the plaintiff case that the plaintiff was the real owner and defendant No. 5 was a mere benamdar. The specific finding of the learned Munsif is that the property was not purchased by the plaintiff with her own money. Defendant No. 5 and plaintiff being husband and wife, the question of possession and custody of the document were not much material in this case. The learned Munsif accordingly dismissed the plaintiff's suit. The finding of the learned Munsif that the property was not purchased by the plaintiff with her own money and that the defendant No. 5 was not her benamdar was accepted by the lower Appellate Court upon con