JUDGMENT 1. - This is second appeal by plaintiff Tara Chand against the appellate decree of the Additional Civil Judge, Jaipur City dated March 5, 1981, reversing the decree passed by Addl. Munsif-cum-Judicial Magistrate No. 1, Jaiur City on Sept. 25, 1969 and dismissing Civil Suit No. 398/1960 for declaration and possession, filed by the appellant. 2. Tara Chand appellant had instituted Civil Suit No. 398/1960 in the court of Munsif (East), Jaipur against Phool Chand deceased (now represented by respondents Nos. 1/2, 1/3 and 1/5) and against Smt. Raja Devi and Shyam Das with the averments that he had purchased a land surrounded by compound and having tin covered house situated in Chokari Hawaii Shahar East, outside Gangapol Gate, Bas Badanpura by virtue of a sale deed dated Nov. 30, 1948 for a consideration amount of Rs. 499/-. After purchase of this property, he obtained permission from the Municipal Committee, Jaipur in January, 1950 and constructed a wall in this compound and affixed tin shed. It was alleged that the appellant thereafter installed a flour mill after purchasing the same under the tin shed. He then mentioned various transfers of this flour mill effected since the year 1954. However, since the 'Ahata' land (also called 'Nohara') belonged to the appellant, therefore, the purchasers of the flour mill used to give rent of this property to the appellant. Initially, Lal Chand Danamal had executed a rent note in favour of the appellant on Jan. 21, 1956 and later on by Shyam Das defendant No. 3 on Aug. 22, 1959. 3. Phool Chand deceased was maternal-grand-father of the appellant. The appellant and his mother mostly used to live with Phool Chand and it was Phool Chand who had maintained and brought up the appellant. He states that he had lately started cultivation and also had begun to earn his livel hood and to reside separately from Phool Chand but his mother lived with Phool Chand. As Phool Chand was his maternal-grant-father, he had his influence upon the appellant. Some years after the purchase of this compound land by the appellant, Phool Chand told the appellant that he should transfer the compound land in favour of appellant's mother so that she can maintain herself. As Phool Chand was his maternal-grant-father, he had his influence upon the appellant. Some years after the purchase of this compound land by the appellant, Phool Chand told the appellant that he should transfer the compound land in favour of appellant's mother so that she can maintain herself. Later on, Phool Chand told the appellant that as the mother of the appellant was a lady, she will not be able to lookafter this compound land and, therefore, the appellant should execute a relinquishment deed in favour of Phool Chand. As the appellant was maintained by Phool Chand and had full trust in him and was under his dominating influence, he executed a relinquishment deed with respect to the above property in favour of Phool Chand in January, 1950. Despite the execution of the relinquishment deed, the appellant continued to be in possession of the compound land and was realising rent from the tenants. Later on, Phool Chand became somewhat intemperate and therefore, the appellant demanded from Phool Chand the return of the relinquishment deed and to cancel the same but he refused to do so and on the contrary, Phool Chand got a rent note executed in his favour from Shyam Das, defendant No. 3. 4. The appellant proceeded on further to state that as he had executed the relinquishment deed of 6th Jan, 1950 on account of undue influence exercised upon him by his maternal-grant-father, he revoked the relinquishment deed on July 29,1959 and intimated about it to Phool Chand by a notice dated 3rd August, 1959. The appellant then came to know that Phool Chand had transferred this 'Ahata' land in favour of Smt. Raja Devi, defendant No. 2 by a registered sale deed dated May 17,1960. It was further alleged that the tenant Shyam Das was also in collusion with Phool Chand and stopped paying rent to the appellant and he has also orally denied the title of the appellant and, therefore, possession suit was also being filed by the appellant against Shyam Das. 5. On the basis of these averments, the appellant claimed for a declaration that the sale deed date 17th May, 1960 executed by his maternal-grant-father Phool Chand in favour of Smt. Raja Devi was void and innefective against the appellant and he has further prayed for a decree for possession against the defendant in the suit over the 'Ahata' in suit. On the basis of these averments, the appellant claimed for a declaration that the sale deed date 17th May, 1960 executed by his maternal-grant-father Phool Chand in favour of Smt. Raja Devi was void and innefective against the appellant and he has further prayed for a decree for possession against the defendant in the suit over the 'Ahata' in suit. Apart from that, a decree for Rs. 156/- as damages was also claimed. 6. The suit was contested by the defendants. Phool Chand defendant No. 1 pleaded in his written statement that the 'Ahata' or 'Nohra' in suit had been purchased in the name of the appellant but the entire consideration amount for the same had flowed from Phool Chand and this fact has been acknowledged by the appellant in the relinquishment deed executed and got registered by him. He further pleaded that he was an old man having cataract in his eyes and taking advantage of that, if the appellant had made any application in the Municipal Committee, the same was ineffective as against the right and title of Phool Chand. The appellant was a servant of the defendant No. 1 on the flour mill and he had executed an agreement in that respect on 27th Aug, 1951 in favour of Phool Chand. Shyam Das tenant had executed rent note out of his free-will in favour of Phool Chand and he had obtained even a decree against Phool Chand. If the appellant had got any rent note executed in his favour from Shyam Das, it was collusive and fabricated. It is admitted that the appellant had executed relinquishment deed in favour of Phool Chand on 6th January, 1950 and got the same registered. The appellant had not filed any suit in any competent court for cancellation of the relinquishment deed dated 6th Jan. 1950. It was admitted that Phool Chand had sold the suit 'Ahata' to Smt. Raja Devi on 17th May, 1960. The allegations regarding undue influence was denied. 7. So far as defendant No 2 Smt. Raja Devi was concerned,she has supported the case set up by Phool Chand that the appellant was only a 'benami' owner and the 'Ahata' land was purchased from the amount advanced by Phool Chand and further that the appellant had relinquished his rights in the 'Ahata' land in favour of Phool Chand on 6th Feb. 1950. 1950. Raja Devi also alleged that she was a bonafide purchaser for valuable consideration and had exercised her due diligence while purchasing the 'Ahata' land. There was no right in the appellant to revoke the relinquishment deed dated 6th Jan., 1950 which he had executed in favour of Phool Chand. Shyam Das defendant No. 3 stated that he had taken the tin covered portion of the land on rent from Phool Chand and denied to have executed any rent note in favour of the appellant. 8. It may be mentioned that Phool Chand, defendant No. 1 expired on 13th Apr., 1963 and his legal representatives were brought on record. 9. The trial court framed various issues in the suit. It held that the 'Nohra' in dispute was purchased by the plaintiff on 30th Nov., 1948 from Pool Chand under sale deed Ex. 1. It further held that Shyamlal executed the rent note dated 22nd Aug., 1959 (Ex. 5) in favour of the appellant. Under issue No. 3 which related to the execution of the deed of surrender in favour of Phool Chand on 6th Jan. 1950 under alleged undue influence, the trial court held that Phool Chand was plaintiffs mother's father and he had a dominating pressure on the appellant and under that undue influence, the surrender deed was executed. It further held that the appellant cancelled the surrender deed dated 6th Jan., 1950 by a cancellation deed dated 29th July, 1959 and he informed Phool Chand about the cancellation by a notice. Under issue No. 5-A, the trial court held that the surrender deed dated 6th Jan., 1950 (Ex. A.1) did not come into effect as possession, even after the execution of the surrender deed of the 'Ahata' in suit remained with the appellant. The suit of the appellant was held to be substantially a suit for cancellation of the sale deed executed by Phool Chand in favour of Smt. Raja Devi on 17th May, 1960. This sale deed was held to be void and ineffective as against the appellant. So far as defendant No. 3 Shyam Das was concerned, it was hold that he had admitted execution of the rent note on his behalf by his brother Shevmal and, therefore, he was bound to pay Rs. 156/- as arrears of rent to the appellant. Under issue No. 7, the trial court held that the surrender deed Ex. So far as defendant No. 3 Shyam Das was concerned, it was hold that he had admitted execution of the rent note on his behalf by his brother Shevmal and, therefore, he was bound to pay Rs. 156/- as arrears of rent to the appellant. Under issue No. 7, the trial court held that the surrender deed Ex. A-1 was not the actual title deed in favour of Phool Chand and, therefore, Smt. Raja Devi must have enquired from the real owner of the 'Ahata'. As Phool Chand get title under the surrender deed as a result of undue influence, the appellant was held entitled to get possession of the 'Ahata' in suit. The suit was held to be within limitation on the basis that there was no evidence that the appellant was in knowledge of the facts of surrender deed when it was executed. He cancelled the surrender deed on 29th July, 1959 and the suit was within limitation. On the basis of those findings, the trial court by its judgment and decree dated 25th Sept. 1969, declared that the 'Ahata' or 'Nohra' in suit was the property of the appellant and the sale deed executed by Phool Chand in favour of Smt. Raja Devi was null and void as against the appellant. It also passed a decree for possession in favour of the appellant and against the defendants in the suit. The claim of Rs. 156/- as arrears of rent was also decreed with future right to recover damages for use and occupation at Rs. 15/- per month from Smt. Raja Devi till the date of delivery of possession. 10. Aggrieved by this decree, Smt. Raja Devi filed Civil First Appeal No. 265/1969 which was decided by the Addl. Civil Judge, Jaipur City on 5th Mar., 1981. The Addl. Civil Judge held that the plaintiff-appellant had failed to establish that the source of consideration of the sale deed came from him. It held that the source of consideration of the sale deed Ex. 1 came from Phool Chand and that the appellant was only Benamidar. The property in suit remained in possession of Phool Chand from the very beginning. The appellant had executed the relinquishment deed on 6th Jan., 1950 in favour of Phool Chand without any undue influence and that Phool Chand was the real owner of the suit 'Ahata'. 1 came from Phool Chand and that the appellant was only Benamidar. The property in suit remained in possession of Phool Chand from the very beginning. The appellant had executed the relinquishment deed on 6th Jan., 1950 in favour of Phool Chand without any undue influence and that Phool Chand was the real owner of the suit 'Ahata'. It was held that he was competent to transfer the suit 'Ahata' in favour of Smt. Raja Devi. The first appellate court also held that the appellant had taken no legal steps to get the relinquishment deed dated 6th Jan., 1950 cancelled. The sale deed in favour of Smt. Raja Devi could not, therefore be held to be void or ineffective. The suit of the appellant was also hold to be bared by limitation as it had been filed more than three years after the execution & registration of the relinquishment deed dated 6th Jan., 1950. As a result of these findings, the first appellate court allowed the appeal filed by Smt. Raja Devi, set aside the decree of the Addl. Munsif cum Judicial Magistrate No. 1, Jaipur City dated 25th Sept. 1969 and dismissed the suit of the appellant. Aggrieved by this decree, plaintiff Tara Chand has come in second appeal to this Court. 11. Although in his memorandum of appeal, the plaintiff had detailed in para 28, several substantial question of law arising in this second appeal. However, when this second appeal was admitted on 23rd Nov, 1981, this Court stated that the substantial question of law which arises in this appeal was whether the first appellate court was right in holding that the plaintiff's suit was barred by limitation. No other substantial question of law was held to arise in the appeal when it was admitted on 23rd Nov., 1981. 12. On going through the plaint of the suit, filed by the appellant, it would appear that the appellant had nowhere claimed the relief of cancellation of the relinquishment deed executed by him on 6th Jan., 1950. He had filed the suit for declaration that the sale deed executed by Phool Chand on 17th May, 1960 in favour of Smt. Raja Devi was void and ineffective as against the appellant and for possession of the suit 'Ahata'. He had filed the suit for declaration that the sale deed executed by Phool Chand on 17th May, 1960 in favour of Smt. Raja Devi was void and ineffective as against the appellant and for possession of the suit 'Ahata'. The appellant had alleged in para 12 of the plaint that since the relinquishment deed dated 6th Jan., 1950 was got executed from him by misrepresentation and under undue influence, he cancelled this relinquishment deed by a document registered on 29th July, 1959 and by also informing Phool Chand by a notice dated 3rd Aug., 1959 about this cancellation. That cancellation alleged to have been made by the appellant on 29th July, 1959 was considered by him to be sufficient to totally revoke the relinquishment deed dated 6th Jan., 1950 and to restore the title in the appellant and on that basis, he alleged that the sale deed executed by Phool Chand of the suit 'Ahata' if favour of Smt. Raja Devi on 17th May, 1960 was null and void. On the basis of these averments made in the plaint by the appellant it could not be held that it was a suit for decision of contract or to cancel the relinquishment deed dated 6th Jan. 1950. There was, therefore, no question of applicability of Article 91 of the Limitation Act of 1908. The suit of the appellant could not, therefore, be held to be barred by limitation under Article 91 of the Limitation Act of 1908. It was a suit for declaration and possession. That suit was clearly within limitation and I hold that the suit instituted by the appellant was within limitation. 13. But this finding alone does not entitle the appellant to any relief for the reason that the first appellate court has held that the appellant was only a "benamidar" in relation to the suit 'Ahata' and the real owner was Phool Chand and further that Phool Chand was in Possession of the 'Ahata' from the beginning. The first appellate court has further held that the relinquishment deed dated th Jan., 1950 was not proved to have been executed by the appellant under any undue influence or misrepresentation. On the basis of these findings, it was held that Phool Chand, who was the real owner of this suit 'Ahata', was competent to sell it to Smt. Raja Devi by the sale deed dated 17th May, 1960. On the basis of these findings, it was held that Phool Chand, who was the real owner of this suit 'Ahata', was competent to sell it to Smt. Raja Devi by the sale deed dated 17th May, 1960. 14. As regards the findings of the first appellate court that the appellant was only a "benamidar" in relation to the suit property, the learned Counsel for the appellant invited my attention to Section 4(2) of the Benami Transaction (Prohibition) Act, 1988 which provides, that 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. The learned Counsel for the appellant urged that Phool Chand was precluded from taking the defence that the property was held by the appellant as benami. He invited my attention to the decision of their Lordships of the Supreme court in Mithilesh Kumar v. Prem Behari Khare, AIR 1989 SC 1247 and urged that in this decision, it has clearly been laid down that in its sweep Section 4 of the above Act of 1988 envisages past benami transactions also within its retroactivity. In this important decision, their Lordships of the Supreme Court have laid down that Section 4 of the Act of 1988 envisages past benami transaction also within its retroactivity. It was held that in the case of a qualifying or disqualifying statute, there may be necessarily retroactivity. The presumption against taking away vested right will not apply in this case in as much as under law it is the bahamidar 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. When remedy has been barred, the right is rendered unenforceable. Consequently, all the real owners are equally affected by the disability provision irrespective of the time of creation of the right. The Act of 1988 has resulted in removal of the real owner's right to recover bemani property. When remedy has been barred, the right is rendered unenforceable. Consequently, all the real owners are equally affected by the disability provision irrespective of the time of creation of the right. The Act of 1988 has resulted in removal of the real owner's right to recover bemani property. It has further been held that an appeal is a re-hearing and in moulding relief granted in the case of an appeal, the appellate court is entitled to take into account even facts and events which have come into existence after a passing of the decree appeal against. The Supreme Court also rejected the argument raised on behalf of the respondent in that case that nobody should be allowed to suffer for fault of the court. Repelling this argument it was held that delay in disposal of an appeal cannot be termed as an in action of the court. In view of this decision of their Lordships of the Supreme Court, no defence that the suit property was held benami by the appellant can be allowed to be raised in this suit & the passing of the Act of 1988 & its affect can be taken into account in this second appeal also. Thus neither Phool Chand nor Smt. Raja Devi can be allowed to take the defence that the suit 'Nohra' was held by the plaintiff-appellant as benamidar under the sale deed dated 30th Nov., 1948 executed by Mool Chand Mahajan. 15. However, the matter does not end there. There is admittedly a relinquishment deed which had been executed by the appellant on 6th Jan, 1950 and get registered relinquishing all his rights in the suit 'Ahata' in favour of Phool Chand. Ex. A-1, is the relinquishment, deed. In this document, the appellant mentioned that the entire consideration amount of the sale deed dated 30th Nov, 1948 executed by Mool Chand Mahajan in favour of the appellant had flowed from Phool Chand and that Phool Chand was in possession of the suit 'Ahata' since its purchase. It was also further mentioned that the name of the appellant was only mentioned in that sale deed. Phool Chand wanted to carry out repairs in the 'Nohra' and the appellant had no money to incur expenses on it. It was also further mentioned that the name of the appellant was only mentioned in that sale deed. Phool Chand wanted to carry out repairs in the 'Nohra' and the appellant had no money to incur expenses on it. The appellant, therefore, relinquished all his rights in the suit 'Nohra' and declared that Phool Chand alone was the owner of the Nohra' and will have all rights in relation thereto. The document was got registered before the Registrar of Deeds on 7th Jan., 1950. 16. The first appellate court has held that the relinquishment deed Ex. A-I was not executed under any undue influence or misrepresentation exercised or made by Phool chand and further that Phool Chand was in possession of the suit 'Nohra'. The first appellate court in arriving at those findings has not only referred to the fact of execution and registration of the relinquishment deed Ex. A-l by the appellant but has also relied upon the Navisht dated 27th Aug. 1951 Ex. DW.7/1 and a letter written by the appellant to Phool chand on 6th January, 1953 Ex. A.6. The first appellate court had also relied upon the important fact that despite having executed the relinquishment deed on 6th January, 1950 and getting it registered, the appellant, having knowledge of the relinquishment deed did not file any suit for cancellation of the deed on the ground that it was executed by him under undue influence or misrepresentation. It may be mentioned that a document executed under undue influence or misrepresentation is not void but is voidable. A definite remedy is provided to have a contract rescinded by a suit where the contract is voidable Under Section 27 of the Specific Relief Act and so also if any person has reasonable apprehension that an instrument which is void or voidable, if left outstanding, may cause serious injury to him, to file a suit Under Section 31 of this Specific Relief Act to have that written instrument adjudged void or voidable. The appellant did not take recourse to either of these remedies. The plaintiff-appellant was totally wrong in considering that having relinquished all his rights in suit 'Ahata' or 'Nohra' in favour of Phool Chand by the relinquishment deed Ex. A-1, he himself was competent to cancel that relinquishment deed and thereby obtain a restoration of title in relation to the suit 'Nohra' in him. The plaintiff-appellant was totally wrong in considering that having relinquished all his rights in suit 'Ahata' or 'Nohra' in favour of Phool Chand by the relinquishment deed Ex. A-1, he himself was competent to cancel that relinquishment deed and thereby obtain a restoration of title in relation to the suit 'Nohra' in him. The title having already vested in Phool Chand under Ex. A.1 in the year 1950, he alone was competent to divest himself of that title and not the appellant who had already extinguished him title in the 'Nohra' or 'Ahata'. Consequent of Ex. A.1 therefore, the apeallant had no right in the suit 'Ahata' or 'Nohra' and the right title and interest in the same vested in Phool Chand. Phool Chand was competent enough to transfer his right title and interest in the suit 'Nohra' in favour of Smt. Raja Devi. 17. It may also be stated that even there is a finding of fact by the first appellate court that Ex. A.1 was not executed under misrepresentation or undue influence and this finding of fact cannot be disturbed in second appeal. 18. It may further be noted that so far as Smt. Raja Devi is concerned, she is a bonafide purchaser for value. She had made all reasonable enquiries about the title of Phool Chand. There could be no better enquiry that the contends of Ex. A.1 itself. There was registered relinquishment deed in favour of Phool Chand which was recited in the sale deed Ex. A. 3 executed by Phool Chand in favour of Smt. Raja Devi. That also dis entitled the appellant to any declaration of his title. 19. In view of the above discussion, the plaintiff-appellant was not entitled to any relief in the suit. His suit deserved dismissal. Consequently, this appeal fails and is hereby dismissed. The parties are left to bear their own costs of this appeal.Appeal Dismissed. *******