Judgement Appeal (No. 62 of 1945), by special leave, from a judgment and order of the Federal Court of India (May 8, 1942) by which a judgment and decree of the High Court at Lahore (February 27, 1941), dismissing appeals brought by the appellant and respondents Nos. 2 and 3 respectively from the judgment and decree of the Subordinate Judge, IV. Class, Sialkot (July 22, 1940), were set aside and directions given with regard to the framing of proper issues and the remittal of the case to the trial court for further trial and decision. The questions which arose in this appeal were — (r.) Whether, and if so, how far, s. 5 of the Punjab Alienation of Land (Second Amendment) Act, 1938 (Punjab Act X. of 1938), whereby a new section, s. 13a, was introduced into the Punjab Alienation of Land Act, 1900 (Indian Act XIII. of 1900) was ultra vires as being in contravention of s. 298 of the Constitution Act; and (2.) whether the provisions of s. 5 of the impugned Act applied retrospectively so as to affect transactions entered into before its enactment. Section 13A was headed "III.—A.—Benami Transactions” and provided as follows—" 13.—A. (1.) When a sale, " exchange, gift, will, mortgage, lease or farm purports to be " made either before or after the commencement of the " Punjab Alienation of Land (Second Amendment) Act, 1938, " by a member of an agricultural tribe to a member of the " same agricultural tribe or of a tribe in the same group, but " the effect of the transaction is to pass the beneficial interest "to a person who is not a member of the same tribe or of " a tribe in the same group, the transaction shall be void for all " purposes, and the alienor shall be entitled to possession of " the land so alienated, notwithstanding the. fact that he may " have himself intended to evade the provisions of this Act. fact that he may " have himself intended to evade the provisions of this Act. "(&) If the Deputy Commissioner, either of his own motion " or on the application of the alienor, is satisfied after making " such enquiries as may be prescribed from the parties concerned, and recording evidence that an alienation is void " under the provisions of the preceding sub-section, he shall by " order in writing, after recording his reasons, eject any person " in occupation of the land under such sale, exchange, gift, u will, mortgage, lease or farm, and place the alienor in 11 possession." Until after the decision of the Federal Court, s. 298 of the Government of India Act, 1935, provided as follows — " 298. (1.) No subject of His Majesty domiciled in India shall " on grounds only of religion, place of birth, descent, colour or " any of them be ineligible for office under the Crown in India, " or be prohibited on any such grounds from acquiring, holding " or disposing of property or carrying on any occupation, " trade, business or profession in British India. " (2.) Nothing in this section shall affect the operation of any " law which— " (a) prohibits, either absolutely or subject to exceptions, the " sale or mortgage of agricultural land situate in any particular " area, and owned by a person belonging to some class " recognized by the law as being a class of persons engaged in 11 or connected with agriculture in that area to any person not " belonging to any such class ; or " (b) recognizes the existence of some right, privilege or " disability attaching to members of a community by virtue 14 of some personal law or custom having the force of law. " (3.) Nothing in this section shall be construed as derogating " from the special responsibility of the Governor-General or of " a Governor for the safeguarding of the legitimate interests of " minorities.” By s. 4 of the India and Burma (Temporary and Miscellaneous Provisions) Act, 1942, two amendments of s. 298 were made, the only material one being the substitution of a new paragraph (a) of sub-s. 2 of s. 298, as follows — " (a) prohibits, either absolutely or subject to exceptions, " dispositions of agricultural land situate in any particular " area and owned by a person belonging to some class " recognized by the law as being a class of persons engaged in " or connected with agriculture in that-area or as being an 11 aboriginal tribe, in favour or for the benefit of any person 11 not belonging to that class." The facts giving rise to the questions raised in this appeal, and the views of the courts below appear from the judgment of the Judicial Committee. 1945. Dec. 17, 18, 19. Pritt K.C. and Pringle K.C. for the appellants If the Punjab Alienation of Land Act, 1900— the principal Act—is invalid, the whole rural economy in the Punjab is largely broken up, and if the amending Act of 1938— the impugned Act—is bad, the same result is in effect produced by enabling a coach to be driven through the principal Act by the simple process of employing nominees. The impugned Act will go entirely if the Board are against the appellant, but two things may be said; first, there is a possible case of severability and secondly, there is the question whether the impugned Act is of valid retrospective operation. The suggestion which has found favour with the majority of the Federal Court is that s. 298 of the Government of India Act, 1935, Much enacts that people are not to suffer from discrimination on various grounds, impinged on this Punjab legislation and destroyed its whole operation. That is the crucial point in this case. The suggestion which has found favour with the majority of the Federal Court is that s. 298 of the Government of India Act, 1935, Much enacts that people are not to suffer from discrimination on various grounds, impinged on this Punjab legislation and destroyed its whole operation. That is the crucial point in this case. It is submitted that this Punjab legislation is not such as falls within the real mischief of racial or colour or similar discrimination referred to in s. 298 of the Constitution Act; further, if s. 13A is invalid, then anybody who wants to destroy the whole effect of the principal Act can do so simply by finding a local person who is qualified and will lend his name. [Reference was made to the history of the case and of land tenure in the Punjab Abdul Haque, on The Punjab Alienation of Land Act, 1900, 1st ed. ( 1945), p. 456.] The impugned Act is not so much adding a new prohibition as merely coming in as an auxiliary to stop a gap in the principal Act. More than 27,000 cases of one kind or another in the Punjab are affected by this case, and it should be made clear whether the impugned Act comes within sub-s. 1 of s. 298 of the Constitution Act at all before it is considered whether it is saved by sub-s. 2 of s. 298. It is conceded that one of the elements of disqualification in the impugned Act is the element of descent—it seems to have been assumed all through. On the ordinary normal construction of the Act to be or not to be a member of a tribe is a matter that can clearly be conclusive on the matter of ones descent. The prohibition applied by s. 13A, however, is not applied on the ground of descent alone) but on the ground of a combination of descent, residence and occupation, which are created varyingly in the varying cases, and therefore the section is not invalidated by sub-s. 1 of s. 298 of the Constitution Act. The Deputy Commissioner has decided that the transaction in this case was a benami one, and that the beneficiary is a disqualified person. The Deputy Commissioner has decided that the transaction in this case was a benami one, and that the beneficiary is a disqualified person. This Board has said that there is nothing wrong with benami transactions as such, but if they are desiged to evade the law then they do not take effect to give a title Guy Narayan v. Sheo Lal Singh (( 1918) L. R. 46 I. A. 1.). With regard to the retrospective operation of s. 13A, that section purports to act retrospectively, and prima facie there is no reason why provincial legislation should not operate retrospectively, and therefore it does. The phrase " prohibits, " either absolutely or subject to exceptions " in sub-s. 2 (a) of s. 298 operates in the appellants favour, because even if exceptions are allowed, it still prohibits the mortgage. The argument for the respondent was that s. 13A operated to disturb or destroy titles already granted ; it is therefore right to see in the light of the authorities and the Contract Act and the Trusts Act whether the benami beneficiary, Gopal Das, had any title at all. It is submitted that he had no title of any description at any time from 1933 onwards—long before the Act of 1938—although he had a right to rely on the maxim in pari delicto, potior est conditio possidentis. If it was a valid benami transaction he would have a right of property, but as it was a benami transaction designed to evade the provisions of an existing Act it was invalid, and from an invalid transaction he derived no rights at all, and therefore under the principal Act of 1900 Gopal Das had no right to this land, and so when the Act of 1938 invalidated the whole thing, whatever else it did it certainly was not depriving Gopal Das of an existing title. [Reference was made to the Contract Act, 1872, s. 23, and to the Trusts Act, 1882, ss. 4, 82, 84 and 96.] It was said in Qadir Bakhsh v. Hakam (( 1932) I. L. R. 13 Lah. [Reference was made to the Contract Act, 1872, s. 23, and to the Trusts Act, 1882, ss. 4, 82, 84 and 96.] It was said in Qadir Bakhsh v. Hakam (( 1932) I. L. R. 13 Lah. 713, 742.) that "if it transpires that an effort had been made to evade the provisions of the Act, steps can be taken to have the " transaction brought into conformity with its provisions.” It is submitted that the respondent here cannot attack the impugned Act without at any rate asserting that if the principal Act had been passed after the Constitution Act it would have been invalid. Sundrabai Sitaram v. Manohar Dhondu (( 1933) A. I. R. (Bom.) 262.) gives point to the suggestion that if the impugned Act had never been passed people in the position of the subsidiary respondents here—the descendants of the mortgagor—would not have got a title, but nevertheless could not have got their land back, and so the principal Act would have been effectively defeated because the land would have passed out of the hands of the cultivators, and therefore the impugned Act comes in, not to destroy a title, but to give real effect to the non-existence of the title. Lala v. Jage Ram (( 1938) A. I. R. (Lah.) 789.) was shortly before the amending Act, and shows the matter a little more clearly. [Reference was also made to Moti Chand v. Ikram Ullah Khan (( 1916) L. R. 44 I. A. 54.).] If the children of the original mortgagor had gone to the court to seek to recover this land, they would have been met by pari delicto. There is nothing in the Constitution Act which invalidates the principal Act or any part thereof, and the purpose of the impugned Act is to render more effective the valid provisions of the principal Act, and s. 5 of the impugned Act applies to transactions entered into before as well as after it was enacted. Even if the application of the impugned Act to the mortgage in suit offends against sub-s. 1 of s. 298 of the Constitution Act its application is saved by the provisions of sub-s. 2 of the 298. Roxburgh K.C. and Hewins for the first respondent. What I challenge—and nothing else is directly challenged—is the retrospective provision in the impugned Act, which, it is submitted, is punitive and penal. Roxburgh K.C. and Hewins for the first respondent. What I challenge—and nothing else is directly challenged—is the retrospective provision in the impugned Act, which, it is submitted, is punitive and penal. It is conceded that the respondent must bring the impugned Act within sub-s. 1 of s. 298 of the Constitution Act. So far as it is retrospective, and only so far, it does not come within the protection accorded by sub-s. 2 (a) of s. 298 as amended by the Act of 1942, and there is no difficulty in severing in that respect. The right way to deal with s. 13A is to delete the words " either before "or." If that is right that is all the respondent needs; whether it is invalid in any other respect does not concern him, because he has a mortgage of 1933, and the only question he is directly concerned with is the effect of the impugned Act on that antecedent transaction. The amendments to s. 298 made in 1942, after the hearing of this case by the Federal Court, have apparently stopped up every argument except the one point of retrospective operation. It is disputed that the Government of India Act gives any government the right to pass penal retrospective legislation; that is the whole burden of my submission. It is agreed that sub-s. 1 of s. 298 of the Constitution Act refers to a personal disability, and the question is whether there is a section in the impugned Act which impinges on the personal right given by sub-s. i of s. 298. If there is, then the whole section must be bad unless it is severable in the manner that has been suggested.. Again, " property " in sub-s. 1 of s. 298 means " any property," and no statute or section can be passed which has the effect of depriving a subject of His Majesty in India of the right to acquire or hold property. The question of belonging or not belonging to a tribe is a matter of descent. If it can be predicated of any section that it does in fact preclude one of His Majestys subjects domiciled in India from acquiring, holding or disposing of property on the ground of descent only, that section, unless severable, must be bad, though the policy of the Act may be something quite different. If it can be predicated of any section that it does in fact preclude one of His Majestys subjects domiciled in India from acquiring, holding or disposing of property on the ground of descent only, that section, unless severable, must be bad, though the policy of the Act may be something quite different. Having, however, put a very wide-spread and far-reaching privilege on individual persons, it became necessary to safeguard such matters as this land alienation Act, and undoubtedly sub-s. 2 of s. 298 is intended to preserve such Acts as were intended to effect the policy of the Punjab land Acts. It is not suggested that it is possible now for anybody to make a mortgage by way of a benami transaction—it is conceded that it could not be done, because admittedly such future transaction would come directly within sub-s. 2 (a) of s. 298 as amended. So far as an antecedent transaction is concerned, however, the real effect of the impugned Act is not to prohibit at all the acquisition or the disposal, but the holding, and it prohibits the holding by taking away from the beneficiary his beneficial interest and leaving him with nothing. The whole question is, therefore, whether or not sub-ss. 1 and 2 of s. 298, read together enable the legislature to pass a retrospective provision which is penal in character. It is submitted that that is not their effect. As to the position of Gopal Das under ss. 6 and 9 of the principal Act, it is at least open to question whether before June, 1939, when the impugned Act came into force, there was anything even irregular in a mortgage by an agriculturist to an agriculturist as benamidar for a non-agriculturist. There are four alternative ways of putting the matter (1.) The mortgage took effect according to its tenour as an absolute mortgage, subject to redemption. (2.) It was valid according to its tenour until it was reduced under s. 9. (3.) It was valid as a usufructuary mortgage. (4.) At any rate, Gopal Das or his benamidar had de facto possession, and there existed before 1939 no process of law by which he could be ejected. The first three of the above assume some beneficial title ; the last one assumes possession without title. What was said in Qadir Bakhsh v. Hakam (I. L. R. 13 Lah. (4.) At any rate, Gopal Das or his benamidar had de facto possession, and there existed before 1939 no process of law by which he could be ejected. The first three of the above assume some beneficial title ; the last one assumes possession without title. What was said in Qadir Bakhsh v. Hakam (I. L. R. 13 Lah. 713, 744.) is in accordance with the true construction of the previous legislation, and s. 13A was intended to deal with the law as laid down in that case. [Reference was also made to Shamas-ud-din v. Allah Dad Kahn (( 1925) A. I. R. (Lah.) 65.).] The word " mortgagee " in s. 6 of the principal Act does not necessarily mean " beneficial mortgagee/ and if that is not so, this device was perfectly lawful. In other words, the mortgage of 1933 was a perfectly valid transaction on the state of the law as it then was—it operated according to its tenour. On the two grounds, therefore, that the word " prohibits” in sub-s. 2 (a) of s. 298 of the Constitution Act looks to a future disposition and not to a past one, and also because the real operation of the impugned Act on an antecedent transaction is not to interfere with any disposition at all, but to interfere with a holding title, a de facto possession, the transaction in question here cannot be brought within the Act. Pritt K.C. replied. The Provincial Legislature is sovereign within the scope of its powers, and can pass retrospective penal or punitive legislation. The only question is whether sub-s. 2 of s. 298 covers it if it does. The impugned Act prohibited dispositions made both before and after it came into force, and it is submitted, first, that it can validly prohibit in that sense as from that date, and secondly, it is not acting retrospectively in any very full sense of the term, because the only sense in which it can be said to be retrospective is that it has disturbed the possession or occupation which dates from an earlier date. With regard to ss. 6 and 9 of the principal Act, they are not mentioned in the judgments below or in the respondents printed case. With regard to ss. 6 and 9 of the principal Act, they are not mentioned in the judgments below or in the respondents printed case. Section 6, it is submitted, is a clear prohibition of making a mortgage in any other form, and therefore, prima facie, a mortgage in any other form is a void one giving no rights. [Reference was made to Shamas-tid-din v. Allah Dad Kahn (( 1925) A. I. R. (Lah.) 65.) and Lola v. Jage Ram (( 1938) A. I. R. (Lah.) 789.).] 1946. Jan. 30. The judgment of their Lordships was delivered by Lord Thankerton. The only question in this appeal is whether, and, if so, to what extent, s. 5 of the Punjab Alienation of Land (Second Amendment) Act, 1938, Punjab Act X. of 1938, is rendered invalid by s. 298 of the Government of India Act, 1935, as being ultra vires the Punjab Provincial Legislature. The Punjab Act of 1938, which may be con veniently referred to as the impugned Act, by s. 5 purported to insert a new section, 13A, in the Punjab Alienation of Land Act, 1900 (Indian Act XIII. of 1900), which may be referred to as the principal Act, the new section being expressly given retrospective effect. The principal Act, as amended up to June 1, 1939, when the impugned Act came into operation, deals with permanent alienation of land in Part II. (ss. 3 to 5), and temporary alienation of land in Part III. (ss. 6 to 13) of the Act. The expression " land " is defined in s. 2, sub-s. 3, and, broadly stated, it covers agricultural land and buildings, and excludes building sites and buildings in a town or village ; and, by s. 2, sub-s. 4, " permanent alienation " is defined to include sales, exchanges, gifts, wills and grants of occupancy rights. The expression " land " is defined in s. 2, sub-s. 3, and, broadly stated, it covers agricultural land and buildings, and excludes building sites and buildings in a town or village ; and, by s. 2, sub-s. 4, " permanent alienation " is defined to include sales, exchanges, gifts, wills and grants of occupancy rights. By s. 3, it is provided that, except where the alienor is not a member of an agricultural tribe, or the alienor is a member of an agricultural tribe and the alienee is a member of the same tribe or of a tribe in the same group, a permanent alienation of land shall not take effect as such unless and until sanction is giventhereto by a Deputy Commissioner, and s. 14 provides that any such permanent alienation shall, until such sanction is given, or if such sanction has been refused, take effect as a usufructuary mortgage in form (a) permitted by s. 6 for such term not exceeding twenty years and on such conditions as the Deputy Commissioner considers to be reasonable. As regards temporary alienations of land, s. 6, sub-s. 1, provides that if a member of an agricultural tribe mortgages his land and the mortgagee is not a member of the same tribe, the mortgage shall be made in one of certain prescribed forms, and s. 9, sub-s. 1, provides that, if a member of an agricultural tribe makes a mortgage of his land in any manner or form not permitted by or under the Act, the Deputy Commissioner shall have authority to revise and alter the terms of the mortgage so as to bring it into accordance with such form of mortgage permitted by or under the Act as the mortgagee appears to him to be equitably entitled to claim. Perhaps the most important section of the principal Act for present purposes is s. 4, under which the Local Government, for which the Provincial Government was substituted in 1937. were, by notification in the Official Gazette, to determine what bodies of persons in any district or group of districts were to be deemed to be agricultural tribes or groups of agricultural tribes for the purposes of the Act. were, by notification in the Official Gazette, to determine what bodies of persons in any district or group of districts were to be deemed to be agricultural tribes or groups of agricultural tribes for the purposes of the Act. Accordingly, by Punjab Government Notification No. 63, dated April 18, 1904, it was determined that for the purpose of the Act—" (1.) In each " district of the Punjab mentioned in column 1 of the Schedule " attached to this notification, all persons either holding land " or ordinarily residing in such district and belonging to any " one of the tribes mentioned opposite the name of such " district, in column 2, shall be deemed to be an agricultural " tribe” within the district. (2.) All the agricultural tribes “within any one district shall be deemed to be a group of " agricultural tribes/ The Schedule has from time to time been amended. In view of the restrictions on alienation, a practice grew up of adopting the method of acquiring and holding property benami, so familiar in India, so that transfers from members of agricultural tribes were made into the name of a person belonging to the same tribe or group of tribes as benamidar, for the benefit of a person who was not a member of such tribe or group of tribes. Such cases came before the court on various occasions, but, in order to explain the situation under which the transaction here in question came into being, and which would appear to have led to the passage of the impugned Act, it will be sufficient to refer to two of these cases, for that purpose only, and not for the purpose of the consideration by this Board of the correctness of the decisions. In Shamas-tid-din v. Allah Dad Kahn (( 1925) A. I. R. (Lah.) 65.), the Lahore High Court held the ostensible vendee entitled to recover possession of the property from the vendor, whatever might be the legal position between the former and the alleged non-agricultural beneficiary; this is the ordinary law relating to benami transactions. In 1932, a Full Bench of the same court in Qadir Bakhsh v. Hakam (( 1932) I L. R. 13 Lah. In 1932, a Full Bench of the same court in Qadir Bakhsh v. Hakam (( 1932) I L. R. 13 Lah. 713.), held in an action by an alleged benamidar to recover possesion of the property from an alleged beneficiary that the latter was entitled to prove that such was the real relationship between the parties, that such a transaction was an evasion of the provisions of the principal Act, but that it was not necessarily void ab initio, and the possession of the beneficiary was not necessarily unlawful in every case, though the court would not lend its support to either confederate, and the possession must remain where it lay. In the year 1933, one Jumman, the father of respondents Nos. 2 and 3, executed a mortgage with possession to respondent No. 1, who is a member of an agricultural tribe, of certain agricultural land and rights in the District of Sialkot, in the Schedule to the notification of 1904, to secure repayment of Rs.1,500 to one Gopal Das. It is not disputed that respondent No. 1 was a benamidar, and that Gopal Das, who is not a party to the present suit, was the real beneficiary. While the mortgage deed has not been produced, it is admitted that it is not in a form permitted by the principal Act, and that it would fall into the category referred to in s. 9, sub-s.1, of the principal Act. In February, 1939, the impugned Act was enacted, and, by a notification under s. I, sub-s. 2, of the Act, it came into force on June 1, 1939. By s. 5 of the impugned Act it is provided that before s. 14 of the principal Act, a new heading and four new sections should be inserted. [His Lordship read the new heading and the first of the new sections, s. 13A, so far as relevant to the present case, and continued ] A proviso to sub-s. 2 of the new s. 13A provides for compensation to the person ejected for improvements in the discretion of the Deputy Commissioner. Sub-section 3 is not material. [His Lordship read the new heading and the first of the new sections, s. 13A, so far as relevant to the present case, and continued ] A proviso to sub-s. 2 of the new s. 13A provides for compensation to the person ejected for improvements in the discretion of the Deputy Commissioner. Sub-section 3 is not material. It should be added that by s. 21 of the principal Act the jurisdiction of the civil courts is excluded in any matter which the Provincial Government or any revenue-officer is empowered by the Act to dispose of, and that any rights of appeal conferred are to persons within the Revenue Department. In October, 1939, Jumman, the mortgagor, having died, his sons, respondents Nos. 2 and 3, applied under s. 5 of the impugned Act to the Deputy Commissioner for avoidance of the mortgage and recovery of possession of the mortgaged property, on the ground that the real beneficial mortgagee was not respondent No. 1, but Gopal Das, who was not a member of an agricultural tribe. Thereupon respondent No. 1, on November 27, 1939, presented a petition against respondents Nos. 2 and 3, in the Court of the Subordinate Judge, First Class, Sialkot, alleging that, in view of s. 298 of the Government of India Act, 1935, the impugned Act was void and ultra vires of the Punjab Legislature, and claiming (a) a declaration of his right as mortgagee with possession, (b) a declaration that respondents Nos. 2 and 3 had no right to take possession through the Deputy Commissioner after taking steps under the impugned Act, and (c) a permanent injunction restraining them from obtaining possession of the land by taking out proceedings under the impugned Act. In a written statement respondents Nos. 2 and 3 maintained the validity of the impugned Act, that s. 298 of the Act of 1935 was not contravened by the impugned Act, and that the present appellant was a necessary part}. By order dated May 27, 1940, the appellant was made a party, and on June 22, 1940, preliminary issues were fixed, namely, 1. Had the Punjab Legislature no jurisdiction to enact Act No. X. of 1938, (Punjab) for reasons mentioned in paras. 8 and 9 ? 2. If not, has the Civil Court jurisdiction to determine the question of benami nature of the transaction in dispute? Had the Punjab Legislature no jurisdiction to enact Act No. X. of 1938, (Punjab) for reasons mentioned in paras. 8 and 9 ? 2. If not, has the Civil Court jurisdiction to determine the question of benami nature of the transaction in dispute? Issue No. 2 raises no separate point, as the answer to No. 1 necessarily determines the answer to No. 2. [His Lordship then read the terms of sub-ss. 1 and 2 of the Government of India Act, 1935, as they were until after the decision of the Federal Court in this case, and referred to the amendment of sub-s. 2 effected by s. 4 of the India and Burma (Temporary and Miscellaneous Provisions) Act, 1942, and continued ] By s. 6, sub-s. 2, of the Act of 1942, it was provided that the amendments made by ss. 3 and 4 of the Act in the Government of India Act, 1935, should be deemed to have been made therein immediately before the passing thereof. It follows that, for the purposes of this appeal, their Lordships must have regard only to s. 298 as amended by the Act of 1942, and another result has followed the amendment, namely, that certain contentions which have been dealt with by the courts in India are no longer available, and the question of the validity of the impugned Act will rest on the decision of one or, at most, of two questions. The first question is whether the impugned Act, by s. 5, contravenes sub-s. 1 of s. 298 of the Act of 1935. If it does not contravene sub-s. 1, the attack on the impugned Act fails, and so does the suit. If, on the other hand, s. 5 of the impugned Act does contravene sub-s. 1 of s. 298, the question arises whether the appellant can claim the benefit of sub-s. 2, and here respondent No. 1 admits that the transaction here in question does fall within the class of disposition described in para, (a) of sub-s. 2, but he maintains that it does not authorize or afford protection for retrospective legislation, and that the retrospective effect of the new s. 13A may be easily eliminated by the deletion of the three words " either before or" from the early part of sub-s. 1 thereof, leaving the impugned Act otherwise operative. The Subordinate Judge appears to have assumed that the impugned Act contravened sub-s. 1 of s. 298 of the Act of 1935, and, as regards sub-s. 2, which in its then form related only to sales and mortgages, he pointed out that the impugned Act prohibited, in addition, exchanges, gifts, wills, leases and farms, and said, " The Act, which cannot be declared void " in part and upheld in the rest, is therefore, ultra vires the " Provincial Legislature as it contravenes the provisions of " s. 298, sub-s. 1, of the Government of India Act, 1935." This ground of judgment was obviated by the subsequent amendment of sub-s. 2 of s. 298. The learned judge also held that s. 292 of the Act of 1935 barred the authority of the Provincial Legislature to legislate retrospectively in view of a Full Bench ruling of the Allahabad High Court (Atique Begatn v. Abdul Maghni (( 1940) A. L R. (All.) 272.)), but that ruling was overruled by a decision of the Federal Court (( 1941) A. I. R. (F. C.) 16.) before the appeal in the present case came before the Lahore High Court, and no further contention was based on s. 292. The contention that the impugned Act, so far as intended to operate retrospectively, was not authorized or afforded protection by sub-s. 2 of s. 298 does not appear to have been made before the Subordinate Judge. On an appeal taken by the present appellant, and an appeal by the present respondents Nos. 2 and 3, the High Court of Lahore dismissed both appeals, and affirmed the decree of the Subordinate Judge. The learned judges held that the impugned Act contravened the provisions of sub-s. 1 of s. 298, in respect that it operated merely by reason of descent alone, that sub-s. 2—as it then stood—could only save sales and mortgages, and did not authorize or protect the avoidance of sales and mortgages retrospectively, and that there would be no difficulty in holding that the impugned Act was valid so far as future sales and mortgages were prohibited. On this last point the learned judges differed from the Subordinate Judge, but this did not affect the result so far as the mortgage in suit was concerned, it having been executed five years before the impugned Act was passed. On this last point the learned judges differed from the Subordinate Judge, but this did not affect the result so far as the mortgage in suit was concerned, it having been executed five years before the impugned Act was passed. Dalip Singh J., in the leading judgment, did discuss the question of the validity of the principal Act, and expressed a somewhat tentative opinion, but Monroe and Sale JJ. found it unnecessary to express any opinion. Their Lordships will refer to this matter later. The High Court having certified in terms of s. 205 of the Act of 1935 that the case involved a substantial question of Jaw as to the interpretation of that Act, the present appellan appealed to the Federal Court, which, by a majority judgment (Gwyer C.J. and Varadachariar J., diss. Beaumont J.) held that the impugned Act contravened sub-s. 1 of s. 298, in respect that in some cases it would operate as a prohibition on the ground of descent alone, and agreed with the High Court that the benefit of sub-s. 2 of s. 298 could not be claimed for the impugned Act so far as it purports to avoid transactions entered into or titles acquired before the impugned Act became law, as the word "prohibit " can only mean the. forbidding of a transaction, and such a direction is appropriate only in respect of transactions to take place subsequently to the date of the direction. Having so far followed the views of the High Court, Varadachariar J., with whom Gwyer C.J. agreed, proceeded to express a view of the matter, which was not supported before the Board, and with which their Lordships are unable to agree. After stating that the question was not exactly one as to the validity or invalidity of the Act, but rather whether the prohibitions contained in it were operative or not, the learned judge said that the circumstances in which the provisions of the impugned Act will be inoperative must be limited to cases where the beneficiaries under the benami transactions fall outside the terms of the notifications under s. 4 of the principal Act only on the ground that they arc not descended from members belonging to the specified tribes. The learned judge further said that in his view the decree dismissing the appeal to the High Court could not stand, and that inquiry would be necessary as to the ground on which Gopal Das, the alleged beneficiary under the suit mortgage, was said to be a non-agriculturist, as, without such an investigation, it could not be decided whether the suit transaction is void under the impugned Act. In his dissenting judgment, Beaumont J. sums up his opinion in these words ; " I would however rest my judgment " that s. 13A of the impugned Act is not ultra vires the Punjab " Legislative Assembly on the wider ground that in applying " the terms of s. 298, sub-s. 1, it is necessary for the court to " consider the scope and object of the Act which is impugned, " so as to determine the ground on which such Act is based. " If the only basis of the Act is discrimination on one or more " of the grounds specified in s. 298, sub-s. 1, then the Act is " bad; but if the true basis of the Act is something different, " the Act is not invalidated because one of its effects may be to " invoke such discrimination. In my opinion, in the present " case the true object of the impugned Act is to avoid a method " of evading the principal Act, which itself is unobjectionable, " and although some of the rights avoided by the Act may be " vested in persons whose only disqualification is lack of a " particular descent, such lack of descent is not the only, or " even the primary, ground on which the rights are avoided.” ([ 1942] F. C. R. 89.) In accordance with the opinion of the majority of the court, the decree of the High Court was set aside, and the case sent back to the High Court with a direction that proper issues were to be framed in the light of the observations in the majority judgment, and the case remitted to the trial court for further trial and decision. Their Lordships desire to point out the limited nature of the issue in this appeal. Their Lordships desire to point out the limited nature of the issue in this appeal. In the first place, no question of the validity of the principal Act arises ; neither of the two issues taken raises the question, no question of its validity was suggested by respondent No. 1 before the Board, and the appellant would clearly be concerned to defend its validity. The amendment of s. 298 of the Act of 1935 by the Act of 1942, and the view of the impugned Act taken by their Lordships, and the concession by respondent No. 1 of its validity as regards future benami transactions, are not encouraging for any attack on the validity of the principal Act. In the second place, Mr. Pritt, for the appellant, sought to rest some argument on s. 23 of the Indian Contract Act, 1872, and in particular, illustration ([ 1942] F. C. R. 89.) thereof, and on ss. 84 and 96 of the Indian Trusts Act, 1882, to suggest that the effect of the benami mortgage in the present case was to defeat the provisions of the principal Act, but in the opinion of their Lordships that question does not arise in the present suit, and will not be precluded by any decision on the validity of the impugned Act, which, by its terms, assumes that the benami transaction has taken effect. In any event, such an issue cannot be decided in the absence of Gopal Das, the beneficial mortgagee. Turning then to sub-s. 1 of s. 298 of the Act of 1935, it was not disputed before the Board that a personal right is thereby conferred on every subject of His Majesty domiciled in India, and, in the opinion of their Lordships, the general legislative powers conferred respectively on the Federal Legislature and the Provincial Legislature by sub-s. I of s. 99, are subject, inter alia, to the provisions of s. 298. Beaumont J. holds that in applying the terms of sub-s. 1 of s. 298, it is necessary for the court to consider the scope and object of the Act which is impugned, so as to determine the ground on which such Act is based. Their Lordships are unable to accept this as the correct test. Beaumont J. holds that in applying the terms of sub-s. 1 of s. 298, it is necessary for the court to consider the scope and object of the Act which is impugned, so as to determine the ground on which such Act is based. Their Lordships are unable to accept this as the correct test. In their view, it is not a question of whether the impugned Act is based only on one or more of the grounds specified in s. 298, sub-s. 1, but whether its operation may result in a prohibition only on these grounds. The proper test as to whether there is a contravention of the sub-section is to ascertain the reaction of the impugned Act on the personal right conferred by the sub-section, and, while the scope and object of the Act may be of assistance in determining the effect of the operation of the Act on a proper construction of its provisions, if the effect of the Act so determined involves an infringement of such personal right, the object of the Act, however laudable, will not obviate the prohibition of sub-s. 1. In marked contrast to this, sub-s. 2 does take into consideration the object of the impugned Act, despite the contravention of the personal right conferred by sub-s. 1. On the question whether the impugned Act does contravene sub-s. 1, Mr. Pritt, for the appellant, conceded that membership of a tribe was, generally, a question of descent, and, therefore, the question may be stated as " whether the impugned Act prohibits any " subject of His Majesty domiciled in India on the grounds " only .... of descent from acquiring, holding or disposing of property in British India/ Three points arise on the question so stated, the first one being whether the provisions of the impugned Act involve a prohibition-within the meaning of sub-s. 1; in the opinion of their Lordships, there can be no doubt that the avoidance of the benami transaction and the recovery of possession by the alienor, which are enacted by the impugned Act for the first time, involve such a prohibition. The second—and most important point—is whether such prohibition is only on grounds of descent. The second—and most important point—is whether such prohibition is only on grounds of descent. In view of the opinion already expressed by their Lordships, it will be enough to show that such will be the result in some of the cases affected by the impugned Act, and it is clear, for example, that if the beneficial vendee or mortgagee either ordinarily resides or holds land in the district, but is not a member of an agricultural tribe, he will be prohibited only on the ground of descent. The third and last point is whether by the provisions of the impugned Act, such a person can be said to be prohibited " from acquiring, holding or disposing " of property " within the meaning of sub-s. I of s. 298 ; in the opinion of their Lordships only one answer is possible, namely, that he is so prohibited. Their Lordships, accordingly, hold that the provisions of the new s. 13a, enacted by s. 5 of the impugned Act, do involve a contravention of sub-s. 1 of s. 298 of the Act of 1935, and are ultra vires the Provincial Legislature, unless they can be shown to be authorized and protected from such a result by sub-s. 2 (a) of s. 298. As already stated, it is not now disputed by respondent No. 1 that, as regards future transactions, the impugned Act is so authorized and protected, and the only question remaining is whether sub-s. 2 (a) authorizes and protects the opening up and avoidance of benami transactions which were in existence at the date of the impugned Act. In the opinion of their Lordships, sub-s. 2 (a) only excepts from the operation of sub-s. 1 a prohibition of future action, for the reason expressed by Varadachariar J., that the word " prohibit ; can only mean the forbidding of a transaction, and such a direction is appropriate only in respect of transactions to take place subsequently to the date of the direction, and cannot include an attempt to reopen or set aside transactions already completed, or to vacate titles already acquired. Their Lordships therefore agree with the High Court and the majority of the Federal Court that the benefit of sub-s. 2 (a) cannot be claimed for the impugned Act so far as it purports to operate retrospectively. Their Lordships therefore agree with the High Court and the majority of the Federal Court that the benefit of sub-s. 2 (a) cannot be claimed for the impugned Act so far as it purports to operate retrospectively. It follows, in the opinion of their Lordships, that the impugned Act, so far as retrospective, was beyond the legislative powers of the Provincial Legislature and, if the retrospective element were not severable from the rest of the provisions, it is established beyond controversy that the whole Act would have to be declared ultra vires and void. But, happily, the retrospective element in the impugned Act is easily severable, and by the deletion of the words " either " before or " from the early part of sub-s. 1 of the new s. 13a, enacted by s. 5 of the impugned Act, the rest of the provisions of the impugned Act may be left to operate validly. The majority of the Federal Court appear to have con templated another form of severability, namely, by a classifica- tion of the particular cases on which the impugned Act may happen to operate, involving an inquiry into the circumstances of each individual case. There are no words in the Act capable of being so construed, and such a course would in effect involve an amendment of the Act by the court, a course which is beyond the competency of the court, as has long been well established. Their Lordships are therefore of opinion that the course adopted by the majority of the Federal Court, and embodied in the order, is not warranted, and must be set aside. The result is that the impugned Act being ultra vires and void in so far as it purports to operate retrospectively, it cannot affect the position of respondent No. i under the mortgage in suit, but the decision of the present suit will not affect or prejudice any question that may arise as to action by the Deputy Commissioner unders s. 9 of the principal Act, and the relief sought by respondent No. 1 must be adjusted so as to confine it within the limits of the present suit as explained in the course of this judgment. It follows that in substance the appellants have failed in this appeal, but a difficulty arises owing to the order made by the Federal Court remitting the action to be reheard, against which respondent No. 1 did not cross-appeal. Accordingly, their Lordships are of opinion that the appeal should be allowed, that the order of the Federal Court, except so far as it sets aside the decree of the High Court and relates to costs, should be set aside, and that it should be declared that the impugned Act, in so far as it purports to operate retrospectively, is ultra vires of the Provincial Legislature, and that a permanent injunction should be granted restraining the appellant and respondents Nos. 2 and 3 from taking proceedings under the impugned Act. Their Lordships will humbly advise His Majesty accordingly. In the circumstances the appellant will pay respondent No. is costs of this appeal.