Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 is not retrospective and does not apply to pending suits already filed and entertained prior to its coming into force.

JUDGMENT

Bibek Chaudhuri, J. - Whether a registered Kobala dated 11th June, 1957 executed by one Kusum Kumari Gupta, original plaintiff No.3, since deceased in favour of one Maya Gupta is a Benami transaction or not and even assuming that the said transaction was a Benami transaction, whether a suit for declaration to such effect is barred under Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 is a substantial question of law involved in the instant appeal.

2. Now, the facts leading to the filing of the instant appeal. The case of the plaintiffs is that one Nibaran Chandra Gupta, predecessor-in-interest of the plaintiffs and proforma defendant Nos. 2 to 9 was the recorded owner of the suit property. Nibaran died on 16th January, 1957 leaving behind the plaintiffs and proforma defendants as his legal heirs and representatives. The principal defendant Smt. Maya Gupta is the brother's daughter of the predecessor-in-interest of the plaintiffs. They were originally residing in Burma. Sometimes in 1950 Nibaran Chandra Gupta with his family members came to India and started residing in the suit property. He used to maintain his livelihood by carrying on some business. The brother of Nibaran Chandra Gupta namely Basanta Kumar Gupta and his wife, the principal defendant with other family members subsequently came to India from Burma. After death of Nibaran Chandra in the year 1957, his widow became apprehensive that the possible debtors of the said Nibaran Chandra might grab the suit property as creditor. So, she consulted her well wishers and decided to execute registered deeds of sale in favour of Smt. Maya Gupta to protect the suit property. Accordingly, on 11th June, 1957 the widow of Nibaran Chandra executed and registered two deeds of sale in respect of the suit property in favour of Maya Gupta. However, the said two deeds were out and out Benami transactions. No consideration money was paid by the purchaser to the vendor. All along the deeds of sale were in custody of the vendor, i.e., the widow of Nibaran Chandra. She all along paid revenue taxes in favour of the suit property. Electricity connection stood in the name of the said Kusum Kumari Gupta, widow of Nibaran Chandra. Thus, the deeds of sale dated 11th June, 1957 was merely a paper transaction and no interest was passed upon the vendee i.e. Smt. Maya Gupta. Moreover, in order to safeguard the interest of the plaintiff, the defendant No.1 executed Ekrarnama on 10th November, 1957 in favour of the plaintiffs admitting therein that the said two Kobalas were sham Benami transactions and no consideration was passed thereunder and even the registration costs were also borne by the said Kusum Kumari. It is further stated by the plaintiffs that there were six tenants at the time of institution of the suit in respect of different portions of the suit property and Kusum Kumari all along used to collect rent from the said tenants. Defendant No.1 and her husband along with their children were allowed to reside in a room in the suit property by Nibaran Chandra as licensees. However, after the death of Nibaran Chandra and after execution of the deeds of sale the defendant No.1 exposed her greed to grab the suit property and filed an application to mutate her name with Kanchrapara Municipality. However, the said application was rejected. Subsequently, Kusum Kumari requested the defendant No.1 to execute a deed of release in respect of the suit property in favour of her but the defendant refused to execute such deed. As a result, the plaintiffs were compelled to institute a suit for declaration that the said two Kobalas dated 11th June, 1957 executed by the plaintiff and in favour of the defendant No.1 are sham Benami documents and no consideration was passed thereunder and no interest was ever intended to be credited in favour of the defendant No.1 and consequential relief of permanent injunction.

3. The defendants contested the said suit by filing written statement denyi