The Benami Transaction (Prohibition) Act, 1988 is a piece of prohibitory legislation that prohibits Benami transactions and makes such transactions punishable. The Act is retrospective in nature and applies to past Benami transactions as well.

JUDGMENT :

K.C. Jagadeb Roy, J. - The Defendant No. 1 in the Original Suit No. 6 of 1977-1 in the Court of the Subordinate Judge, Bhadrak is the Appellant in this case.

Defendant Nos. 1 and 2 are the brothers and are sons of the Plaintiff. The Plaintiff had preferred the suit against the Defendants for declaration of right, title and interest in respect of the landed property shown in Schedules-A and B of the plaint. I he parties belong to Dayabhag School of Hindu law.

2. It is the case of the Plaintiff that he purchased the suit lands out of his own money acquired by his own exertion working as a labourer and the lands were purchased Benami in the name of his sons. To be more in details, he purchased Schedule-A land measuring Ac. 3.00 decimals Benami in the name of Deft. No. 1 by a registered sale deed dated 3-5-1956 for a consideration of Rs. 1100/-. Admittedly Defendant No. 1 was a minor at that time being 4 years of age. He subsequently purchased Schedule-B lands in different installments by registered sale deeds dated 18-5-1965, 20-2-1969 and 27-4-1970 in the name of Defendant Nos. 1 and 2 who were also minors at that time. The Plaintiff was, however, possessing the lands under Schedules-A and B from the date of its purchase. The consideration money was paid by him. As here was a family quarrel, the Defendants separated from the Plaintiff on 15th November, 1976 and threatened to transfer away the above land for which the Plaintiff was compelled to file the suit for a declaration that he was the sole owner of the lands under Schedules-A and B and the Defendants had no manner of right, title and interest in the same. Defendant No. 1 filed a written statement denying the allegations made by the Plaintiff. According to Defendant No. 1, the Plaintiff did not purchase the lands out of his own funds but from the usufructs of ancestral properties of the Plaintiff, hence the claim of the Plaintiff that the lands as per Schedules-A and B were purchased Benami in the names of Defendants 1 and 2 is not correct and the Plaintiff's suit should be dismissed.

3. The trial Court while framing 6 issues, answered issue Nos. 4 and 5 holding that the lands were purchased by the Plaintiff out of his own funds. The suit property as such are self-acquired property of the Plaintiff and the sale deeds in the name of Deft. I and Defendant 2 were Benami in nature.

4. The Plaintiff had examined himself as P.W. 2. In his evidence he had stated that he was the original resident of Medinapur and came to village, Jharkata in the district of Balasore empty handed as the landed property which they had were sold away by his father and earned his livelihood in village Jharkata by cultivating land in Bhag. From a little money he earned, he took some land in lease from the Raja of Kanika on payment of salami. Since then he was in possession of that property and had been plying rent to the Anchal later he purchased Schedule-A property in the name of his son Deft. No. 1 out of sheer affection for him and subsequently made some purchases of land in favour of Deft. Nos. land 2. That he was working as a labourer in the fields is found from the evidence of D.W. 3 whose land he cultivated. P.W. 3 has also stated that after 4 to 5 years thereafter, the Plaintiff started cultivating his own land which he took on lease from the Raja of Kanika and since the lease, he was cultivating his own land. Defendant No. 1 also admitted in his evidence who was examined as D.W. 1 saying that his father, the Plaintiff took 8 acres of land on lease from the Raja of Kanika and the entire consideration money was paid by his father. He has not made any specific statement regarding the nature and character of the property which his grand-father had. He also stated that the sale deeds under which Schedules-A and B properties were purchased are in possession of his father. He also admitted that he had a separate establishment and he had no source of income. His father was cultivating the suit la