Judgment B.L.Yadav, J. 1. This is a defendants Second Appeal in a suit filed by the plaintiffs respondents for declaration that the deed of gift dated 23-9-1979 purported to have been executed by Gyanchand in favour of Sitapati in respect of the suit property measuring about 8 decimals of land situate in Mauza Telpa Kalampurr Shahartelpa, Police station Karpi, District Jehanabad was fraudulent, sham and inoperative and also for declaration that the Mutation Case No. 519 of 1985 was illegal and also for temporary injunction restraining the defendants from making any alienation of the suit property. 2. The case of the plaintiffs-respondents was that one Jhauri Sao, grand-father of plaintiff No. 1 Lohari Sao has two sons, namely, Ramdhani Sao and Devi Charan Sao. Ram Dhani Sao had a son named Gyanchand who married one Marchhi after the death of his first wife. The plaintiff No. 1 Lohari Sao is the son of said Devi Charan Sao, and that the deed executed by Gyanchand Sao was illegal and sham transaction. The plaintiffs were entitled to the relief claimed. 3. The suit was contested by the defendants also denying the plaint allegations and that the gift deed was legal and genuine executed by Gyanchand Sao in respect of some of the properties and he fraudulently took settlement of the lands in dispute, and that the suit was liable to be dismissed as no case for granting any relief was made out. 4. The trial court decreed the suit, holding that the gift deed dated 23-3-1979 is sham, fraudulent an in operative and that the order in Mutation Case No. 519 of 1983-84 is also illegal and fraudulant, and the suit was accordingly, decreed. The appeal filed by the defendants-appellants before the lower appellate cout was dismissed. Hence the present Second Appeal has been filed. 5. The learned Counsel for the appellants urged that the suit was barred by the provisions of the Benami Transaction (Prohibition) Act, 1988 (for short "the Act"), as it was averred in the plaint in paragraph 6 that Gyanchand, the donee was holding the property, but he was just like a Benamidar and the real owner was plaintiff No. 1.The present suit was barred by Sec. 4 of the Act and that the gift was illegal. Reliance was placed on Mithilesh Kumari V/s. Prem Bihari Khare -- . Reliance was placed on Mithilesh Kumari V/s. Prem Bihari Khare -- . Some other decisions were also referred but it is not necessary to refer to them. 6. The learned Counsel for the respondents, on the other hand, refuted the submisions of the learned Counsel for the appellants and urged that the suit was filed prior to enforcement of the Act and in any in any case the allegations made in the plaint were not sufficient to make out a case of Benami transaction, rather the matter was covered by the Proviso added to Sec. 4 of the Act and that the gift deed was legal and operative. 7. Having scrutinised the submissions of the learned Counsel for the parties, point for consideration was as to whether the suit was bared by Sec. 4 of the Act and whether the gift deed was legal. As regards the first point the basic question is whether the provision of Sec. 4 of the Act is retrospective in operation. Sec. 4 of the Act is quoted below: 4. Prohibition of the right to recover property held benami: (1) No suit, claim or action of enforce any right in respect of any property held Benami against the person in which name the property is held or against any other person shall be 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 apply: (a) where the person in whose name the property is held is a coparcener in a Hindu undivided family and the property 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 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. 8. 8. Before actually ascertaining the nature of the aforesaid provision, whether it shall have retrospective operation or not, it has to be ascretained whether the Act or this provision was declaratory in nature. Declaratory enactment declares and clarifies real intention of the legislature in connection with an earlier existing transaction or enactment. In the instant case the Act cannot be said to be declaratory in nature, inasmuch as, it did not declare nor clarify the real intention of the legislature. At the same time it does not create any right or obligation. 9. In the Maxwell on the Interpretation of Statutes 12th Edn. (1969) there is reference to Atulumney Re (1898) 2 QB 547, in which following observaions were made: Perhaps, no rule of construction is more firmly established that this that a retrospective operation is not to be given to a statute so as to impair an existing rights or obligation, other wise than as regards matters of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If (he enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only. The rule has, in fact, two aspects, for it, involves another and subordinate rule, to the effect that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary. 10. In Garikapati Veeraya V/s. N. Subbiah Choudhary -- the Apex Court has observed that the golden rule of construction is that in the absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the Act was passed. 11. The relevent provision of Sec. 4 of the Act and other provisions" would indicate that the Act was not declaratory in nature nor it created new rights or obligation. In this view of the matter it is difficult to hold that Sec. 4 of the Act is retrospective in operation. 12. In Mithilesh Kumari V/s. Prem Behari Khare -- (supra) their Lordships of the Apex Court ruled that the provisions of Sec. 4 of the Act were retrospective in operation. In this view of the matter it is difficult to hold that Sec. 4 of the Act is retrospective in operation. 12. In Mithilesh Kumari V/s. Prem Behari Khare -- (supra) their Lordships of the Apex Court ruled that the provisions of Sec. 4 of the Act were retrospective in operation. That case came up for reconsideration before the Bench of three Hon ble Judges of the Apex Court in R. Rajagopal Reddy V/s. Padmini Chandra Sekharan -- and the Apex Court after considering the entire relevant case law on the subject and applying the relevant rules of interpretation held that Sec. 4 of the Act was not retrospective and over ruled the earlier view in Mithilesh Kumaris case (supra). In that case it was clearly held that the Act would not apply to the pending proceedings on the date of enforcement of the Act. Sec. 4 of the Act would not be applicable retrospectively. 13. So far as the factual foundation is concerned, under paragraph 6 of the plaint just half-heartedly it has been stated that the property was purchased in the name of Gyanchand by other members of the family, who constituted Joint Hindu Family. The name was denied in the written statement. Paragraph 6 of the plaint was also not emphatic indicating the nature of the transaction. so as so amount to the Benami transaction. Once that part was denied, it was for the plaintiff to prove it. But they failed to prove it. From the evidence led by the parties it appears that the transaction cannot be said to be Benami. 14. In this appeal Title Suit No. 37 of 1984 was already pending. Hence there was no question of Sec. 4 of the Act being made applicable to the said suit. But no stretch of imagination Sec. 4 of the Act can be applied to the suit already pending, prior to the enforcement of the Act. Sec. 4 of the Act was enforce on 19-5-1988; whereas Sec. 3 of the Act was enforced on 5.9.1988. In my view neither Sec. 4 of the Act would be applicable retrospectively nor it shall apply to the said suit even in this Section Appeal. 15. As regards the second question, suffice it to say that whether the gift deed was genuine or not it is a question of fact. In my view neither Sec. 4 of the Act would be applicable retrospectively nor it shall apply to the said suit even in this Section Appeal. 15. As regards the second question, suffice it to say that whether the gift deed was genuine or not it is a question of fact. The courts below have considered the entire evidence on record and have recorded a finding that the gift deed-(Ext. A) was not a valid document. 16. I have gone through the records and the judgment of the courts below and I find that there is no sufficient reason to take a contrary view particularly in a case where the two courts below have recorded the findings based on the evidence on record. 17. In view of the premises aforesaid, the present second Appeal fails and the same is, accordingly, dismissed, but in the circumstances of the case, there shall be no order as to costs.