Judgment :- 1. First defendant in O S. 100 of 1977 on the file of the District Munsif Court, Chidambaram, is the appellant in this second appeal. The plaintiff-first respondent filed the suit for declaration, recovery of possession and for future mesne profits with regard to an extent of 1 acre 51 cents in R.S. 188/1 within the specific boundaries, in Therkuthittai village, and a dwelling house in R.S. 53 in Melbhuvanagiri Kallikattu Harijan colony. 2. The case of the plaintiff-first respondent is that she purchased the suit properties under the originals of Ex.A2 and A3 from out of her own funds and ever since then she had been in possession and enjoyment of the same through her power agent Chandran, her paternal uncle. Her father, the appellant herein, besides claiming to be in possession of the house property claimed to be in possession of the lands by leasing out the same to respondents 2 and 3 (defendants 2 and 3), which prompted the plaintiff-first respondent to institute the suit for the necessary reliefs. 3. The appellant first defendant resisted the suit by setting up the plea of benami and adverse possession, while respondents 2 and 3 claiming to be cultivating tenants under the appellant contended that the civil court has no jurisdiction. 4. The trial Court, on a consideration of the materials oral and documentary, dismissed the suit with costs. Aggrieved by the decision, the first respondent-plaintiff preferred A.S. 171 of 1978 before the Subordinate Judge of Chidambaram. The learned sub-Judge, on a consideration of the materials on record and the arguments advanced by both sides, allowed the appeal. He held that the plea of benami having been set up by the first defendant-appellant, it is for him to discharge the onus and in that view of the matter the appellant had miserably failed in discharging the onus cast on him. He also found separately that the first respondent had proved her title to the suit properties in the sense of the same having been purchased from out of her own funds. He also negatived the theory of adverse possession and the theory of cultivating tenancy set up by respondents 2 and 3 and the consequent ouster of jurisdiction of the Civil Court. 5. Aggrieved by the judgment and decree of the lower appellate Court, the second appeal had been preferred. He also negatived the theory of adverse possession and the theory of cultivating tenancy set up by respondents 2 and 3 and the consequent ouster of jurisdiction of the Civil Court. 5. Aggrieved by the judgment and decree of the lower appellate Court, the second appeal had been preferred. The lower appellate Court in reversing the decision of the trial court, correctly sifted the materials on record with meticulous care, caution and circumspection, besides correctly applying the legal proposition as regards the plea of benami set up by the appellant, for reaching the correct conclusion that the suit properties had been purchased by the first respondent from out of her funds and negativing the theory of cultivating tenancy and consequent ouster of jurisdiction, set up by appellant and respondents 2 and 3. A perusal of the judgment of the lower appellate Court would not furnish any indication as to the misappreciation or malappreciation of the evidence on record, calling for interference in second appeal. 6. It has to be considered whether the plea of benami as set up by the appellant could enure to his benefit, even in the extreme case of all the materials available on record proving the theory of benami, in the face of express and explicit provisions of the Benami Transactions (Prohibition) Act, 1988 (Act 45 of 1988) (for short, the Act.) 7. S. 4 of the Act which deals with prohibition of the right to recover property Held benami reads as follows— “(1) No suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be the real owner of such property; (2) No defence based on any right in respect of any property held benami, whether against the person in whose name the property is held or against any other person, shall be allowed in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. (3) Nothing in this section shall” S. 2 (a) defines benami transaction as any transaction in which property is transferred to one person for a consideration paid or provided by another person, Sub-S.(3) of S. 3, prescribes punishment for benami transactions and it reads as under— “Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.” Sub-S.(2) of S. 3, which adumbrates certain saving provisions reads as follows— “Nothing in sub-S.(1) shall apply to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed unless the contrary is proved that the said property had been purchased for the benefit of the wife or the unmarried daughter.” 8. In Mithilesh Kumari v. Prem Behari Khare 1 , the Supreme Court had an occasion to interpret the aforesaid provisions of the Act. The facts of that case were that the plaintiff filed a suit for declaration that he is the real owner of the suit house and the transaction was benami. The suit was decreed by the trial court, which was confirmed by the appellate Court. The Act came into force during the pendency of the appeal before the Supreme Court, and it was held that the subsequent event could be taken note of and the Act being retroactive in ope ration, the suit could not be decreed. Certain passages for reaching such a conclusion are so illustrating and the same is worthy of reproduction here. hey read as under— “The Benami Transaction (Prohibition) Act, contains no specific provision making its operation retrospective. The Act is a piece of prohibitory legislation and it prohibits benami transactions subject to stated exceptions and makes such transactions punishable and also prohibits the right to defences against recovery of benami transactions as defined in S 2(a) of the Act. The Parliament has jurisdiction to pass a declaratory legislation. As a result of the provisions of the Act all properties held benami at the moment of the Act coming into force may be affected irrespective of their beginning, duration and origin. This will be so even if the legislation is not retrospective but only retroactive. The Act contains no specific provisions making its operation retrospective. In its sweep S. 4 envisages past benami transactions also in its retroactivity. This will be so even if the legislation is not retrospective but only retroactive. The Act contains no specific provisions making its operation retrospective. In its sweep S. 4 envisages past benami transactions also in its retroactivity. In this sense the Act is both a penal and disqualifying statute. In case of a qualifying or disqualifying statute it may be necessarily retroactive. When an Act is declaratory, in nature the presumption against retrospectivity is not applicable. Acts of this kind only declare. A statute in effect declaring the benami transactions to be unenforceable belongs to this type. The presumption against taking away vested right will not apply in this case in as much as under law it is the benamidar in whose name the property stands, and law only enabled the real owner to recover the property from him which right has now been eliminated by the Act. In one sense there was a right to recover or resist in the real owner against the benamidar. Ubi Jus ibi remedium: Where there is a right there is a remedy. Where the remedy is barred the right is rendered unenforceable. In this sense it is a disabling statute. All the real owners are equally affected by the disability provision irrespective of the time of creation of the right. A right is a legally protected interest. The real owners right was hitherto protected and the Act has resulted in removal of that protection. When the law nullifies the defences available to the real owner in recovering the benami property from the benamidar the law must apply irrespective of the time of the benami transactions. The expression ‘shall lie’ in S. 4(1) and ‘shall be allowed’ in S. 4(2) are prospective and shall apply to present (future stages) and future suit, claims or actions only. The expression ‘shall lie’ in S. 4(1) and ‘shall be allowed’ in S. 4(2) are prospective and shall apply to present (future stages) and future suit, claims or actions only. Where a suit filed by the real owner for declaration that Certain property is held by the defendants as benami and that the plaintiff is the real owner was decreed by the lower courts but an appeal by Special leave against the same was pending before the Supreme Court on the date of the commencement of the Act, the appellate Court is competent to take into account legislative changes since the decision under appeal was given and its powers are not confined only to see whether the lower courts decision was correct according to the law as it stood at the time when its decision was given. Once the decree of the High Court has been appealed against, the matter became sub judice again and thereafter the Supreme Court had seisin of the whole case. In view of the provisions of the Act, therefore, the plaintiffs suit or action could not be decreed under the law; and hence the decree passed by the lower Courts is annihilated and the suit dismissed.” 9. Applying the principles enunciated by the Supreme Court in the aforesaid decision to the case on hand and considering the facts and circumstances of this case it goes without saying that the findings of the lower appellate Court will have to be confirmed. Accordingly, the second appeal is dismissed. Since the parties are relations, I make no order as to costs.