JAGANNATHA SHETTY, J. ( 1 ) THIS regular second appeal by the plaintiff appellant is against the decree dated 13th june, 1979 made in r. A. No. 92 of 1976 on the file of the 8th additional civil judge, Bangalore city, confirming the decree dated 23-2-1976 made in o. s. No. 2389 of 1964 on the file of the first additional munsiff, Bangalore. ( 2 ) THIS court while admitting the appeal framed the following substantial questions for consideration, which reads as under: (1) whether the lower appellate court after having come to the conclusion that the plaintiff has established that the sale deed dated 19-7-1928 standing in the name of the deceased 2nd defendant, was a benami transaction and in reality it was intended for the joint family of the plaintiff and defendants 3 and 4, was justified in taw in holding that the transfer made in favour of 1st defendant was valid without recording a finding in terms of the Provisions contained in Section 41 of the Transfer Of Property Act. (2) whether the finding of the lower appellate court that the transfer made by the 1st defendant in favour 5th defendant was a valid transfer is justified in law. ( 3 ) WHEN the matter came up for hearing as the Provisions of benamitran sactions (prohibition) Act, 1988 had came into force and the learned judge b. p. singh, j. On consideration of the respective contentions of the parties felt that the case involves important question of law which arc required to be considered by the division bench. They are as follows: (a) whether Section 3 of the Act, which is prospective in operation and which prohibits any person from entering into a bcnami transaction and makes the breach punishable i. s a punitive provision which docs not in any manner control the scope and operation of Section 4, which extinguishes the civil rights of those who may claim to be the real owners any right or interest in the property held benami and applies to pending proceedings as well? (b) whether the extinguishment of the rights under Section 4 operates as a bar to a suit by a person claiming as real owner any right or interest in the properly held benami, against the bcnamidar or any other person, notwithstanding the exceptions in Section 3 (2), but subject to the exceptions contemplated by scclion 4 (3) of the act? ( 4 ) THE facts giving rise to the appeal are a few and simple. The appellant-plaintiff gangadharappa filed a suit against the respondents-defendants in o. S. No. 2389 of 1964 in the court of the iii additional i munsiff, Bangalore, praying for relief, inter alia, declaring that the sale deed dated 30-11 -1963 executed by the 2nd defendant, the mother of the appellant in favour of 1st defendant and h. r. c. proceedings in h. r. c. No. 26/1964 and the execution case No. 404 of 1964 do not bind the plaintiff and for declaring lhal he had one-fourth share in the suit schedule property and for partition and separate possession of the share of the plaintiff and lhat the 1st defendant-respondent be permanently restrained from disturbing the plaintiff-appellant's joint possession and enjoyment of the suit schedule land. ( 5 ) THE 1st defendant-respondent did not file any written statement. During the pendency of the suit, the 2nd defendant, the mother of plaintiff-appellant died and defendants 2 (a), (b) and (c) the heirs of the deceased 2nd defendant were brought on record and they filed (heir written statement, ( 6 ) THE 1st defendant-respondent during the pendency of the suit sold the suit schedule property to the 5lh dcfcndant-respondcnt-7-k. P. Puttarangaiah. The 3rd defendant-respondent had also filed her written statement. The learned munsiff, on the basis of the pleadings framed the following issues for consideration: 1. Whether the plaintiff proves lhal his falher brought the suit property as manager of the joint family consisting of himself and his sons from out of the joint family funds, bcnami in the name of the 1st defendant? 2. Whether the 5th defendant proves lhat the 1st defendant was the absolute owner of the suit properly, she having purchased the same out of her own funds? 3. Whether the plainlilf proves lhal he has l/4lh share in the suit properly? 4. 2. Whether the 5th defendant proves lhat the 1st defendant was the absolute owner of the suit properly, she having purchased the same out of her own funds? 3. Whether the plainlilf proves lhal he has l/4lh share in the suit properly? 4. Whether defendants 2 (a) and 2 (b) prove that their father was an absolute owner of suit property and as such are entitled to l/6th share each in it? 5. Whether the plaintiff proves lhal the decision in o. s. No. 2317/1964 on the file of this court operates as res jitdicata against defendants 1 and 5? 6. Whether the 5lh defendant proves thai the plaintiff is estopped from claiming any interest in the suit property? Additional issues 1. Whether defendants 3 and 4 prove that the suit property is the joint family property belonging to the plaintiff and defendants 3 and 4? 2. Whether the 3rd defendant is entitled to l/4th share in the suit property? 3. Whether the defendant No. 3 proves that the suit property was purchased by his father gangappa in his mother's name and it is a benami transaction? ( 7 ) ON consideration of the evidence as well as the materials on record and there spective contentions of the panics, the learned munsiff, Bangalore, negatived issues 1, 3, 4 and 5; and answered issues 2 and 6 in the affirmative and passed a decree dismissing the suit with costs of defendant-5. ( 8 ) BEING aggrieved by the judgment and decree of the learned munsiff, the appellant-plaintiff filed an appeal before the 8th additional civil judge, Bangalore city in r. a. No. 92 of 1976. In the appeal the learned civil judge, formulated three points for consideration. It reads as follows: 1) whether the sale deed dated 19-7-1928 standing in the name of the deceased 2nd defendant as benami for the joint family of the plaintiff and defendants 3 and 4? 2) if the point no. 1 is held in favour of the plaintiff-appellant, does appellant show that the 1st defendant had notice of actual or constructive of the benami nature of the transaction? 3) whether the plaintiff is entitled to l/4th share in the schedule property? 2) if the point no. 1 is held in favour of the plaintiff-appellant, does appellant show that the 1st defendant had notice of actual or constructive of the benami nature of the transaction? 3) whether the plaintiff is entitled to l/4th share in the schedule property? ( 9 ) ON consideration of both oral and documentary evidence the learned civiljudge, held that the circumstances clearly go to show that gangappa dealt with his property as owner is established by exhibits p-ll, 12 and 14 and also by ex. P-17. The learned civil judge, has further held that the property purchased under exhibit p-13, dated 19-7-1928 in the nume of his wife gangamma, was a benami transaction, in that, the wife was only a benamidar. On the second question on consideration of the evidence, the learned civiljudge held that defendant no. l had in fact purchased the property under ex. D-l, without notice of benami, for, there was no evidence placed on record to show that there was such a notice to the 1st defendant. In the circumstances, the learned civil judge, held that the plaintiff would not be entitled to any relief notwithstanding the finding on point no. l in his favour. Accordingly the learned civil judge by his judgment and decree dated 29-6-1979 confirmed the judgment and decree of the learned munsiff and dismissed the appeal. ( 10 ) BEING aggrieved by the said judgment and decree of the learned civil judge, the plaintiff-appellant has preferred this appeal. ( 11 ) IN the appeal, it is contended, inter alia, that the courts below having held that the transaction was never intended for the benefit of defendant-2 erred in holding that defendani-1 purchased the same without notice of the fact that defendant-2 was only a benamidar. Further, it was argued that the learned civil judge, failed to notice that it was not for the appellant-plaintiff to establish that the 1st defendant had the notice of the benami nature of the transaction, tt is submitted that under Section 41 of the Transfer Of Property Act, it was for the 1st defendant to establish that he purchased the property after reasonable care to ascertain that the transferee had the power to make the transfer and that he had acted in good faith. ( 12 ) THE learner counsel appearing for defendant-5 strenuously contended that the Provisions of benami transaction (prohibition) Act, 1988 had come into force, which has put a complete bar to the plaintiffs suit against defendant in respect of the suit schedule property. He submitted that as the lower appellate court had come to the conclusion on point no. l that the purchase made under exhibit p-13, dated 19-7-1928 was a benami transaction, in view of the prohibition incorporated in Section 4 of the Act, the suit was liable to be dismissed on that ground itself. ( 13 ) IN this appeal the finding of the first appellate court that the transaction was one of benami, has not been seriously questioned by the respondent. The appellant-plaintiff relying on the finding of the first appellate court that transaction was one of benami, has argued that the lower court had erred in holding that the 1st defendant-respondent could not have had notice of benami nature of exhibit p. 13 at the time he purchased the property. Elaborating his argument on this point he relied on a decision of the Patna high court, reported in ramsaran mahton v harihar prasad, AIR 1961 Patna 314. ( 14 ) THE learned counsel for the appellant has taken us through the evidence and the pleadings in the case. Exhibit d-4 is the registered document which came to be executed by the deceased dcfendant-2 gangamma in favour of madamma under which half portion of the entire properly purchased under the original of exhibit p-13 was sold to her. The said document was attested by gangappa, appellant-plaintiffs father, as well as by defendants-3 and 4. They are exhibits d-1 and d-4. In all these documents there is a recital that the deceased gangamma, defendant-2, was the absolute owner of the property and the deceased gangappa had no right to the property. By the attestation of original document ex, d-4, in which there was a clear recital to the effect that gangamma was the absolute owner of the property. By attestation of document by gangappa, plaintiff and defendants-3 and 4, they gave an impression to anyone reading that document that gangamma was the absolute owner of the properly, even though she was only a benamidar. By attestation of document by gangappa, plaintiff and defendants-3 and 4, they gave an impression to anyone reading that document that gangamma was the absolute owner of the properly, even though she was only a benamidar. Therefore, it is quite natural that on going through the document, 1st defendant had not considered that any further enquiry as to whether gangamma had title to the other half of the same property was called for. As per Section 41 of the Transfer Of Property Act in order to bind the 1st defendant about the benami nature of transaction, it is to be established by the appellant-plainliff that the 1st defendant had either actual or constructive notice of benami nature of transaction under exhibit p-13. On the other hand, there were recitals in the document ex. d-4, clearly stating thai the deceased gangamma was the absolute owner of the property which made any further enquiry by the 1st defendant as to whether gangamma was the real owner, unnecessary. The appellant/plaintiff has not placed any material to establish that defendant no. l had notice either actual or constructive of the benami nature of transaction of ex. P-13. The 5th defendant-respondent no. 7, is the purchaser of the properly during the pendency of the suit, that being so he would be entitled to the benefit of finding in favour of 1st respondent- defendant no. l. ( 15 ) IN the case of ramkwnar kooda v m. C. Queen, 18 suth wr 166, the decision of the privy council, it is observed as follows:"it is a principle of natural equity which must be universally applicable, that when one man allows another hold himself out as the owner of the estate and the third person purchased it for value from the appellant owner in the belief that he is the real owner, the man who so allows the other to hold himself out shall not be permitted to recover upon his secret title, unless he can over ihrow that of the purchaser by showing that either he had direct notice or something which amounts to constructive notice of the real title of that there existed circumstances which ought lo have put him upon enquiry, which it prosecuted. Have led to be a discovery of it. "in this case the appellant-plaintiff, has not established that respondent no. Have led to be a discovery of it. "in this case the appellant-plaintiff, has not established that respondent no. 1-defendant No. 1 had actual or constructive notice of benami nature of transaction. It is relevant to note that deceased defendant No. 2's husband gangappa always represented, that the suit properly was the absolute properly of his wife. After his death, his heirs would be as much bound by the father's representation, as he would have been during his life lime. The decision of the palna high court cited by the learned counsel for the appellant is of no assistance to the point urged by him, that respondent No. I/defendant No. 1 was not a bona fide purchaser without notice either actual or constructive of benami nature of transaction. This case is distinguishable on facts. Morever, the finding of a final court of fact recorded by the first appellate court, in this case on the said point, is that the defendant was abona fide purchaser for value without notice of the benami nature of the transaction. This court cannot interfere with the said finding of fuel in a second appeal, as held by the supreme court in pattabhiramaswamy v hanymayya, AIR 1950 SC 57, in which the Supreme Court said that upon exclusive question of fact even though erroneous high court would have no jurisdiction lo entertain a second appeal. ( 16 ) WE will now lake up two points referred lo by b. p. singh, j. , as well as the contention of the learned counsel for respondent no. 7 Mr. B. p. holla, that in the Provisions of Section 4 of the benami transactions (prohibition) Act, 1988 (act 45 of 1988) has put a complete bar to the plaintiffs suit against defendant in respect of suit properly. ( 17 ) TO answer these points, it is necessary to quote the relevant Provisions of the act. Section 2 (a), sections 3 and 4 o' the act reads: - "2. Definitions: in this act unless the conlext otherwise requires, (a) "benami transaction" means any transaction in which property is transferred to one person for a consideration paid or provided by another person. " xxx xxx xxx"3. Prohibition of benami transactions. (1) no person shall enter into any benami transaction. Definitions: in this act unless the conlext otherwise requires, (a) "benami transaction" means any transaction in which property is transferred to one person for a consideration paid or provided by another person. " xxx xxx xxx"3. Prohibition of benami transactions. (1) no person shall enter into any benami transaction. (2) nothing in sub-section (1) shall apply to the purchase of properly 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 ihc wife or the unmarried daughter. (3) whoever enters inlo any benami transaction shall be punishable with imprisonment for a term which may extend lo three years or with fine or with both. (4) notwithstanding anything contained in the Criminal Procedure Code, 1973 (2 of 1974) an offence under this Section shall be non-cognizable and bailable. 4. Prohibition of the right to recover property held benami. (1) no suit claim or action lo enforce any right in respect of any property held benami againsl ihe person in whose name the property is held or against any of her 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 properly held bcnami, whether against the person in whose name the properly 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 ihis Section shall apply, (a) where the person in whose name the property is held is coparcener in a hindu undivided family and the properly is held for the benefit of the coparceners in the family; or (b) where the person in whose name the property is held is a trustee or other person standing in a fiduciary capacity, and the properly is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity. "this is an important piece of legislation which not only seeks to abolish age old concept of benami transaction and hie judicial acceptance of the doctrine by putting a bar on ihe right to recover property held benami by n real owner, but also declares a benami transaction as illegal with penal consequences. ( 18 ) SECTION 3 (1) of the act specifically says that no person shall enter into benami transaction. Sub-section (2) of Section 3 of the act specifics that sub-section (1) shall not apply to purchase of property by any person in the name of his wife or un-married daughter and in such a case, it shall be presumed unless ihe contrary is proved that the property had been purchased for the benefit of the wife or for the unmarried daughter, as the case may be. Sub-section (3) of Section 3 of the Act, provides lhat whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or both. Sub-section (4) of Section 3 of (he Act, says that notwithstanding anything contained in the Criminal Procedure Code, an offence under section 3 of the act shall be non-cognizable und bailable. The purport of Section 4 (1) of ihe act is that no plaintiff can seek a declaration that the defendant is a benamidar of any particular property. Similarly, the purport of Section 4 (2) is that in a suit for recovery of properly in the possession of defendant based on the title of the plaintiff to the properly, a defendant cannot plead thai the plaintiff was only a benamidar for the defendant. Sub-section (3) of Section 4 of the act deals with two exceptions to the general Rule of prohibition to ihe right to recover property held benami incorporated in sub-section (1) and sub-section (2) of Section 4 of theact. ( 19 ) PROVISION of this act has already been the subject matter of interpretation by the Supreme Court in the case of mithilesh kumari v prem behari kare. Relevant portion of the judgment reads:"21. We read in maxwell lhat it ls a fundamental Rule of english law that no statute shall be construed to have retrospective operation unless such a consiruclion appears very clearly at the time of the Act, or arises by necessary and distinct implication. Relevant portion of the judgment reads:"21. We read in maxwell lhat it ls a fundamental Rule of english law that no statute shall be construed to have retrospective operation unless such a consiruclion appears very clearly at the time of the Act, or arises by necessary and distinct implication. A retrospective operation is, therefore, not to be given to a statute so as to impair existing right or obligation, otherwise than as regards matter of procedure unless lhat effect cannot be avoided without doing violence to the language of the enactment. Before applying a statute retrospectively the court has to be satisfied thul ihe statute is in fact retrospective. The presumption against retrospective operation is strong in cases in which the statute, if operated retrospectively, would prejudicially affect vested righis or the illegality of the past transactions, or impair contracts, or impose new duty or attach new disability in respect of past transactions or consideration already passed. However, a statute is not properly called a retrospective slatulc because a part of the requisites for its action is drawn from a lime antecedent to its passing. We must look at the general scope and purview of the statute and at the remedy sought to be applied, and consider what was the former state of law and what the legislation contemplated. Every law that takes away or impairs rights vested agreeably to existing laws is retrospective, and is generally unjust and may be oppressive. But laws made justly and for the benefit of individuals and the community as a whole, as in this case, may relate to a time antecedent to their commencement. The presumption against retrospectivity may in such cases be rebutted by necessary implications from the language employed in the statute. It cannot be said to be an invariable Rule that a statute could not be retrospective unless so expressed in the very terms of the Section which had to be construed. The question is whether on a proper construction the legislature may be said to have so expressed its intention. "xxx xxx xxx "22. 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. "xxx xxx xxx "22. 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. However, Section 4 clearly provides that no suit, claim or action to enforce any right in respect of any property held benumi 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 Section 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 Section 4 envisages past benami transactions also within its retroactivity. In this sense the act is both a penal and a disqualifying statute. In case of a qualifying or 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 lo vote, those who attained 18 years in the past would be as much eligible as those who attained that age and 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. 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. 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 nghl is a legally protected interest. The real owner's right was hitherto protected and the act has resulted in removal of that protection. 23. When the law nullifies the defences available to the real owner in recovering the benami properly from the bcnamidar the law must apply irrespective of the lime of the benami transactions. " xxx xxx xxx "26. Counsel for the respondent laslly submits that nobody should be allowed to suffer for fault of ihc court, as the maxim goes, actus curiae neminem gravabit. Nobody should suffer for an act of the court. However, the delay in disposal of an appeal cannot be termed as action of the court. The consequence is that the plaintiff-respondent's suil or action cannot be decreed under the law; and hence the decree passed by the lower courts is annihilated and the suit dismissed. " ( 20 ) THE ratio of the decision as is discernible from the above paragraphs can besummarised thus: (1) sub-section (1) of Section 3 which prohibits the entering into a benami transaction and sub-section (3) of Section 3 which makes the act of entering into benami transaction an offence arc prospective in operation. " ( 20 ) THE ratio of the decision as is discernible from the above paragraphs can besummarised thus: (1) sub-section (1) of Section 3 which prohibits the entering into a benami transaction and sub-section (3) of Section 3 which makes the act of entering into benami transaction an offence arc prospective in operation. (2) Section 4 (1) which bars the right to remedy to enforce any right in respect of any property alleged to be held benami by the defendant and Section 4 (2) which bars a defence by a defendant in a suil for enforcement of any right in respect of any properly based on title of the plaintiff, that the plaintiff was'' only a benamidar, applies not only in respect of pending proceedings based on past benami transactions; whether in the trial court or the appellate court; but also to proceedings initialed or defence taken after ihc commencement of the act in respecl of transactions entered into either prior to the commencement, of the act or after the commencement of the act. ( 21 ) AS far as this case is concerned, this is a suit instituted prior to the commencement of the act to enforce a right against defendant-2 and against purchaser from her in respect of the suit property on the ground that she held the property benami for her husband, the father of the appellant and their sons. Therefore, in view of the ratio of the judgment of the Supreme Court, the bar operates, though the matter is pending in appeal. On this ground alone the appeal is liable to be dismissed. ( 22 ) THE other question for consideration is, whether sub-section (3) of Section 4 can be relied on by the appellant to say thai the suit is maintainable. Under sub-section (3) two exceptions are provided for, lo the bar created by Section 4 (1) and (2) of the act. ( 22 ) THE other question for consideration is, whether sub-section (3) of Section 4 can be relied on by the appellant to say thai the suit is maintainable. Under sub-section (3) two exceptions are provided for, lo the bar created by Section 4 (1) and (2) of the act. The exceptions arc; (i) where the person in whose name the properly is held is a coparcener in a hindu undivided family and the property is held for the benefit of the coparceners in the family; and (ii) where the person in whose name the property is held, is a trustee or other person standing in a fiduciary capacity, and the property is held for the benefit of another person for whom he is a trustee or towards whom he stands in such capacity. ( 23 ) IN our opinion, the case does not fall under either of the two exceptions. It does not fall at all under the first exception, for the reason, the property was in the name of gangamma and not a coparcener. The second exception is also not attracted to the case for the reason that the only plea in the plaint was that the suit property was really that of the father and the 2nd defendant was only a benamidar. There was no alternative plea to the effect that the property was held by the 2nd defendant-mother as a trustee for the benefit of the plaintiff and her other children, or being a mother who stood in a fiduciary capacity to the plaintiff and her other children held the suit property for the benefit of the plaintiff and other children of hers, on the other hand, the attestation of sale deed exhibit d-4 by the appellant and defendants 3 and 4, in which there was a clear recital that the property in question, half of which was sold under that deed belongs absolutely to gangamma, is inconsistent with any such situation. ( 24 ) ANOTHER question of law which arises for consideration in this appeal is, whether sub-section (2) of Section 3 has prospective or retrospective operation. If it has retrospective operation then by the force of the Provisions it has got to be presumed that property was purchased for the benefit of gangamma, by her husband. ( 24 ) ANOTHER question of law which arises for consideration in this appeal is, whether sub-section (2) of Section 3 has prospective or retrospective operation. If it has retrospective operation then by the force of the Provisions it has got to be presumed that property was purchased for the benefit of gangamma, by her husband. In our opinion, the said question stands answered by necessary implication by the judgment of the Supreme Court in mithilesh kumari, in which the Supreme Court held that Section 3 is prospective in operation. As can be seen from the language of Section 3 (1), it says that no person shall enter into any benami transaction. From the very language of the Provisions, it is clear that it is prospective in operation, for the reason the prohibition to enter into a benami transaction, in the nature of things, can apply to transactions taking place after the coming into force of the act. Further, sub-section (3) of Section 3 makes the act of entering into benami transaction punishable and also provides for imposition of punishment with imprisonment which may extend to 3 years or with fine or both. Therefore, the provision can only be prospective in operation, in view of article 20 (1) of the constitution, which provides, that no person shall be convicted for any offence except for violation of the law in force at the time of the commission of the act charged as an offence. Sub-section (2) of Section 3 which says that nothing in sub-section (1) shall apply to the purchase of property by any person in the name of his wife or in the name of his unmarried daughter and in such a case it shall be presumed, unless the contrary is proved that the said property was purchased for the benefit of the wife or unmarried daughter, as the case may be, is only in the nature of an exception to Section 3 (1 ). Therefore, its scope cannot be wider than that of Section 3 (1), for, an exception has to operate within the area covered by the clause to which it is an exception. Therefore, its scope cannot be wider than that of Section 3 (1), for, an exception has to operate within the area covered by the clause to which it is an exception. The real purport of sub-section (2) is, even after the corning into force of the act under which the act of entering into benami transaction is prohibited and it is also made an offence, it is open to an individual to pay the entire consideration for the purchase of the property and purchase the property in the name of his wife or unmarried daughter, and doing so does not fall within the prohibition incorporated in Section 3 (1) and does not constitute an offence under Section 3 (3) of the Act, but, when so done the property so purchased becomes the absolute property of the wife or the unmarried daughter, as the case may be, and it will not be deemed to be a benami transaction. Therefore, it is clear, sub-section (2) which is in the nature of exception to sub-section (1), which is prospective in operation, is also prospective in operation. As far as past transactions, namely, purchase of properties by a person in the name of any other person, including the purchase in the name of wife or unmarried daughter, prior to the commencement of the act is concerned, Section 4 would apply and therefore no suit would lie by anyone on the plea that such person in whose name the property was purchased was only a benamidar. ( 25 ) TO sum up our answer to the questions of law arising for consideration in this appeal are: (1) sub-seclion (1)of Section 3 of ihe act which prohibits the entering into any benami transaction i. e. transfer of properly infavour of a person for a consideration paid or provided by another has only a prospective operation. Sub-section (2) of Section 3 which provides that nothing in sub-section (1) shall apply to the purchase of properly by any person in the name of his wife or unmarried daughter, and when so purchased in shall be presumed that unless ihe eonlrary is proved, that the said properly had been purchased for the benefit of such wife or the unmarried daughter, being in the nature of an exception is also prospective in operation. (2) the bar to the enforcement ol the right in respect of any property on the allegation that the property cimcerned is held 'benami' by the person concerned, as also the bur to the defence thai the person who want to enforce any right in respect of any properly was only a bcnamidar, operates to all such cases, irrespective of the fact, the transactions were prior to the commencement of the act or subsequent and irrespective of the fael whether the matter is pending in the trial court or any of the appellate courts, unless the case falls under the two exceptions incorporated in Section 4 (3) (a) and (b) i. e. the properly is held by a person in his name as a coparcener of hindu undivided family vide clause (u) or the person in whose name the properly is held, is a truslee or is a person standing in a fiduciary capacity, for ihe benefit of a person for whom he is a trustee or towards whom he stands in a fiduciary capacity vide clause (b ). ( 26 ) AS far as ihe preseni case is concerned, it is true the purchase of the propertyby the father of ihe plaintiff/appellant was in the name of his wife gangamma, defendant No. 2. Even so, Section 3 (2) is not attracted as it has no retrospective effect. But Section 4{ 1) is allracled. Therefore, the appeal of the appellant is liable to be dismissed, in view of the bar created by Section 4 of the Act, as the appellant is seeking to enforce a right in respect of ihe suit property held in the name of the 2nd defendant on the plea that she was only a bcnamidar, for her husband i. e. , the father of the appellant and as the case does not fall within the two exceptions provided for in sub-section (3) of Section 4 of the act. ( 27 ) IN the result, we make the following order : the appeal is dismissed with costs. --- *** --- .