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. 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 land but since institution of the suit, he was cultivating the same. 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 land but since institution of the suit, he was cultivating the same. In his cross-examination he stated that he did not: know how his father collected the consideration amount which he paid for purchase of the properties as per Schedules-A and B. Defendant No. 2 did not choose to file any written statement and did not contest the suit though during the trial he filed a compromise petition stating that he did not claim m any right, title or interest over his share in Schedule-B lands and that he had no objection if the Plaintiff possessed his (Deft. 2's) share in Schedule-B land. 5. From this evidence stated above it is quite clear that the properties described in Schedules-A and. B were not purchased by the Plaintiff out of income from the ancestral properties in his hands. The consideration which was paid by the Plaintiff for the suit land was earned by himself and therefore out of his own funds. The finding of the trial Court that the Plaintiff purchased the land out of his own funds suffers from no infirmity and is upheld. The trial Court, however, allowed the Plaintiff's suit holding that the sale deed dated 3-5-1956 under which the properties were purchased in the name of Deft. No. 1 and the sale deeds dated 13-5-1965, 20-2-1969 and 27-4-1970 under which Schedule-B properties were purchased in the names of Defts. 1 and 2 are Benami in nature. Deft. No. 1 in respect of Schedule-A land and Defts. 1 and 2 in Schedule-B land are Benamidars and had no right, title and interest on that. The suit was accordingly decreed holding that the Plaintiff was the sole owner of the Schedules-A and B properties. I do not agree with the finding of the trial Court as far as this portion of finding is concerned. The Plaintiff had' alleged in the plaint that the lands as per Schedules-A and B were purchased by him Benami in the names of his sons and he w IS entitled for a declaration that the lands were exclusively of his own. 6. The Plaintiff had' alleged in the plaint that the lands as per Schedules-A and B were purchased by him Benami in the names of his sons and he w IS entitled for a declaration that the lands were exclusively of his own. 6. The Benami Transaction (Prohibition) Act, 1988 came into effect when this first appeal was pending in this Court 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 Section 2(a) of the Act. In a case reported in AIR 1959 SC. 1247 Mithilesh Kumari and Anr. v. Prem Behari Khare the Hon'ble Supreme Court has stated thus: x x x x Consequently, 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 Court's decision was correct according to the law as it stood at the time when its decision was given. x x x x. In this case the Supreme Court has stated that Section 4 of the Benami Transaction (Prohibition) Act, 1988 envisages past Benami transaction also within its retroactivity. When an Act is declaratory in nature, the presumption against retrospectively is not applicable. 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 inasmuch 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 ceased by the Act. 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 owner's right was hitherto protected and the Act has resulted in removal of that protection. 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 owner's right was hitherto protected and the Act has resulted in removal of that protection. Therefore, when the suit was filed by the real owner for declaration that the property held by the Defendant as Benami and that the Plaintiff is the real Owner was decreed by the lower Courts but an appeal is pending before the High Court on the date of commencement of the Act, the appellate Court is competent to take into account legislative changes since the decision under appeal is given' and its power is not confined only to see whether the lower Court's decision is correct according to the law or not when the decision was given. 7. In view of the provisions of the Act, the Plaintiff's suit could not be decreed under the law and hence the decree passed by the lower Court is not aside and the suit is dismissed against Defendant No. 1 in respect of Schedule-A property. As far as Schedule-B, property is concerned, the present appellate who is Defendant No. 1 has interest only in respect of half of the property. The properties have been purchased in the name of Defendant Nos. 1 and 2 jointly. By the compromise filed in the trial Court, Defendant No. 2 has surrendered his right in favour of the Plaintiff in respect of his half share in Schedule-B properties. This surrender has become final and Deft, No. 2's interest in Schedule-B property is no more in dispute and pending decision when the Prohibition Act came into force. Therefore, the Plaintiff's suit shall fail completely in respect of Schedule-A properties standing in the name of Defendant No. 1 and in respect of 50% share in Schedule-B properties in which Deft. No. 1 has his interest. The judgment and decree passed by the trial Court is set aside in respect of Deft. No. 1's interest in Schedule-A property and to the extent of his share in Schedule-B property. The appeal is allowed with costs. Final Result : Allowed