JUDGMENT D.P.S. Chauhan, J. - The present second appeal involves the matter relating to doctrine of banami transaction founded on judicial acceptance. 2. Benami is a mask covering the real owner as against the ostensible owner and the person so masked could take it off and appear before the Court as an appropriate person discharging the onus of proving the benami character of the transaction. The plaintiff Hariram Bhargava, took off the mask by filing Suit No. 174 of 1982 seeking, in main, the relief for declaration that the transaction in respect of the holding in the village Bhojraj under deed of sale dated 4/5-9-1962 in favour of his wife, Smt. Ram Pyari, was a benami of which he is the real owner in possession. The suit was decreed on 23-1-1984 declaring the sale deed in favour of Smt. Ram Pyari as benami as the purchase was made out of the earnings of the plaintiff, who was held to be the real owner in possession thereof. The alternative plea, as set up by the defendant, that in case the purchase was held as benami, then the same may be treated as gift in her favour by way of advancement was rejected. In appeal filed there against by the defendant, Smt. Ram Pyari, the findings of the trial Court were maintained. The present second appeal is directed against the judgment and decree dated 23-5-1984 passed in the aforesaid appeal and the same was admitted on 20-9-1984 on the following questions : - 1. Whether the suit was barred by Section 49 of the U.P. Consolidation of Holdings Act? 2. Whether the suit is barred by time? 3. A new legislation known as Benami Transactions (Prohibition) Act, 1988 (for brevity, hereinafter referred to as `the Act') on having come into force removed the judicial acceptance of benami transaction with a view to help people to keep the property which they were holding for others, with few exceptions, and the right of the real owner which was available hitherto, vanished forever bringing about complete metamorphosis in the legal position, viz. of the doctrine of benami transaction, by making the benamidar a real owner in law. 4. Learned counsel for the appellant, realising the weakness of his case, did not press the points on which the appeal was admitted. of the doctrine of benami transaction, by making the benamidar a real owner in law. 4. Learned counsel for the appellant, realising the weakness of his case, did not press the points on which the appeal was admitted. In view of the changed position, he moved an application, accepting the finding that the transaction in question was benami in the name of the defendant appellant, praying for addition of the following questions of law : - 1. Whether the plaintiff respondent's suit is barred under Section 4 of the Benami Transactions (Prohibition) Act. 1988? 2. Whether the plaintiff respondent's suit can be decreed under the Benami Transactions (Prohibition) Act, 1988? 5. The questions for consideration, as proposed, were not available to the appellant at the time when the appeal was filed as the Act except the provisions of Sections 3, 5 and 8 came into force on 19-5-1988 and the provisions of Sections 3, 5 and 8 came into force on 5-9-1988. The second appeal was filed in this Court on 17-9-1984. 6. Relying upon the following observations of the Supreme Court in Mithilesh Kumari v. Prem Behari Khare reported in, AIR 1989 SC 1247 at page 1255, I am satisfied that the questions, as proposed for consideration, are the substantial questions of law deserving consideration by this Court and accordingly the leave is granted to address the Court on merits : "Lechmeshwar v. Keshwar Lal, AIR 1941 FC 5 is an authority for holding that the hearing of appeal under the procedural law of India is in the nature of rehearing and therefore in moulding the relief to be granted in a case on appeal, the appellate court is entitled to take into account even facts and events which have come into existence after the decree appealed against. 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." 7. 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." 7. The plaintiffs claim regarding the relief was founded on the allegations that on account of his being in M.P. Police Force he purchased the land, out of his own earnings, benami in the name of his wife, Smt. Ram Pyari, so to avoid unnecessary departmental objections and the requirement of seeking permission. The conduct of his wife, who was interested in alienating the land in question, necessitated for filing the aforesaid suit, as, in spite of pursuation, she did not desist, being under the influence of persons who were hostile to him. 8. On the other hand, the case of the defendant was that her husband was leading an immoral life and was keeping a concubine and was addicted to liquor as a result whereof he neglected her and her children, which led her father to think for making some permanent provisions for her livelihood by purchasing agricultural land for her, but, by the time he could manage for the money, he died leaving the money and desire with her for purchasing the agricultural land and she, respecting his wish, purchased the land in question by means of the registered deed from his uncle, Ram Kripal. After this, her husband wanted to get the land transferred in his name and the reluctance on the part of the defendant led to filing of the aforesaid suit, which was not maintainable in view of the provisions of Section 49 of the U.P. Consolidation of Holdings Act. She, however, in the alternative, pleaded that if the transaction is found to be benami and the purchase money advanced by the plaintiff, then the same may be treated as a gift by way of advancement. 9. Heard the learned counsel for the applicant, Sri V.S. Singh and the learned counsel for the respondent, Sri Murli Dhar, Senior Advocate, assisted by Sri Ran Vijay Singh. 10. 9. Heard the learned counsel for the applicant, Sri V.S. Singh and the learned counsel for the respondent, Sri Murli Dhar, Senior Advocate, assisted by Sri Ran Vijay Singh. 10. Learned counsel for the appellant in support of his submission stated that the suit is barred under Section 4 of the Act, and the same cannot be decreed and is liable to be dismissed after setting aside the decree appealed against. 11. Section 4 of the Act prohibits the right to recover the property held benami by providing - (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. 12. The submission of the counsel for the respondent was that the Act was not applicable to the transaction in question and the suit is not barred by Section 4 of the Act as the Act is not retrospective in its applicability to the pending proceedings. 13. Learned counsel for the appellant submitted that in view of the aforesaid decision in Mithilesh Kumari (supra), the controversy is no more res Integra. It has been held that in its sweep Section 4 envisaged past benami transaction also with its restrospectivity. In this connection, para 22, which deals with the matter, is extracted below : "As defined in Section 2(a) of the Act "benami transaction" means any transaction in which property is transferred to one person for a consideration paid or provided by any other person. A transaction must, therefore, be benami irrespective of its date or duration. Section 3, subject to the exceptions, states that no person shall enter into any benami transaction. This section obviously cannot have retrospective operation. A transaction must, therefore, be benami irrespective of its date or duration. Section 3, subject to the exceptions, states that no person shall enter into any benami transaction. This section obviously cannot have retrospective operation. However, Section 4 clearly provides that no suit, claim of 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 real owner of such property. This naturally relates to past transactions as well. The expression "any property held benami" is not limited to any particular time, date or duration. Once the property is found to have been held benami, no suit, claim or action to enforce any right in respect thereof shall lie. Similarly, sub-section (2) of S. 4 nullifies the defences 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 in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. It means that once a property is found to have been held benami, the real owner is bereft of any defence against the person in whose name the property is held or any other person. In other words in its sweep S. 4 envisages past benami transactions within its retrospectivity. In this sense the Act is both a penal and a disqualifying statute it may be necessarily retroactive. For example when a Law of Representation declares that all who have attained 18 years shall be eligible to vote, those who attained 18 years in the past would be so much eligible as those who attained that age at the moment of the law coming into force. 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 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. 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. 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 owner's right was hitherto protected and the Act has resulted in removal of that protection." 14. Thus, the provisions of Section 4 of the Act, which are held to be retrospective, will be applicable to the proceedings in the appeal by which the suit itself can be said to be pending. In para 24 of the aforesaid case (supra), the Supreme Court dealt with the matter which is extracted below- "In Dayawati v. Inderjit (1966) 3 SCR 275 : AIR 1966 SC 1423 it has been held that the word `suit' includes an appeal from the judgment in the suit. The only difference between a suit and an appeal is that an appeal only reviews and corrects the proceedings in a cause already constituted but does not create the cause. In Mohanlal Jain v. His Highness Maharaja Shri Man Singh (1962) 1 SCR 702 : AIR 1962 SC 73 it was observed that "a person is "sued" not only when the plaint is filed against him, but is "sued" also when the suit remained pending against him. The word "sued" covers the entire proceeding in an action". In Amarjit Kaur v. Pritam Singh, (1975) 1 SCR 605 : AIR 1974 SC 2068 it has been held that an appeal is a rehearing and in moulding relief to be granted in a case on appeal, the appellate Court is entitled to take into account even facts and events which have come into existence after the passing of the decree appealed against." 15. Learned counsel for the respondent next submitted that prohibition in Section 3 of the Act that no person shall enter into any benami transaction, carves out an exception under sub-section (2) in favour of wife and unmarried daughter creating a presumption, though rebuttable, that the property had been purchased for the benefit of the wife or unmarried daughter, and since the presumption is rebuttable, the case is worth sending back to the trial Court for an opportunity to establish that the property was not purchased for the benefit of his wife. This submission has no force as Section 3 of the Act, in Mithilesh Kumari's case (supra), has been held to be prospective in operation. 16. Thus, the position, as boils down, is that, under the circumstances, the appeal deserves to be allowed and the suit, in view of the provisions of Section 4 of the Act, on the basis of unchallenged finding regarding benami nature of the transaction, has become not maintainable and the same deserves to be dismissed. 17. The appeal is accordingly allowed. The judgment and decree of both the Courts below are set aside and the suit is dismissed with no order as to costs.