JUDGMENT I.A. Ansari, J. 1. The Appellant herein instituted Title Suit No. 03/2004, his case being, in brief, thus: (i) The plaintiff discontinued his studies due to insufficiency of money and time inasmuch as he was the only earning member of his family and maintaining Defendant Nos. 1, 2, 3 and 6, the Defendant Nos. 1 and 2 being sisters and Defendant Nos.3 and 6 being his mother and brother respectively. The plaintiff had been maintaining, out of his small income, his mother, two sisters and one of his brothers, they all (Defendant Nos. 1, 2 and 6) being minors. In the year 1983, the plaintiff got an opportunity to purchase the suit land. In making purchase of the suit land, proforma Defendant Nos. 4 and 5, both being plaintiff's brothers, rendered financial assistance to the plaintiff. The plaintiff, in good faith, and in order to live a joint family life, got the sale deed, in respect of the said land, registered in favour of his mother, i.e. Defendant No. 3. The suit land was accordingly mutated in the name of his mother. (ii) In the month of July, 1983, the plaintiff wanted to construct a residential house over the suit land and when he was making necessary preparations, he came to learn that his mother, (i.e., Defendant No. 3), had gifted, by way of gift deed, the suit land to the plaintiff's two sisters, namely, Defendant Nos. 1 and 2. The gift deed was registered on 24.02.2003. Having come to know about the gift deed, the plaintiff has instituted a suit seeking declaration, inter alia, as follows: Declaration of plaintiff's right, title, interest and possession over the suit land and house standing thereon, declaration that the gift deed, in question, is illegal, void and non-operative, cancellation of the said gift deed and perpetual injunction restraining the Defendants and others, claiming under them from entering into the suit land. 2. The Defendant No. 3 filed a written statement and denied the fact that the suit land was purchased by the plaintiff, her case being that the suit land was purchased by her and that she, being the sole and absolute owner of the suit property, had voluntarily, by way of gift deed, gifted the suit land to her two daughters. 3. 3. On a petition being filed under Order XIV, Rule 2 and Order VII, Rule 11 of the Code of Civil Procedure on the ground that the suit was barred under Section 4 of the Benami Transactions (Prohibition) Act, 1988, (in short, 'the said Act') the learned Civil Judge (Jr. Division) No. 1, Tinsukia, framed accordingly a preliminary issue. On hearing the learned Counsel for the parties concerned, the learned Civil Judge (Jr. Division) No. 1, Tinsukia, passed an order, on 13.09.2004, holding to the effect, inter alia, that the suit stood barred by the provisions of the said Act and dismissed the suit. Aggrieved by the dismissal of the suit, the plaintiff preferred an appeal, which gave rise to Title Appeal No. 7 of 2004. By Judgment and decree, dated 29.03.2006, passed in Title Appeal No.7 of 2004, the learned Civil Judge (Sr. Division), Tinsukia, dismissed the appeal. Aggrieved by the dismissal of the appeal, the plaintiff has, now, come to this Court with this second appeal. 4. The substantial question of law, raised in this appeal, read: Whether the learned Courts below are legally justified in dismissing the plaintiff's suit as barred under Section 4 of the Benami Transactions (Prohibition) Act, 1998 by framing the preliminary issue on the face of the averments on the pleadings. 5. I have heard Mr. A.K. Goswami, learned senior counsel, assisted by Mr. S. Banik, learned Counsel, for the plaintiff, and Mr. G.N. Sahewalla, learned senior counsel, assisted by Mr. D. Senapati, learned Counsel, for the contesting Respondents. 6. Before coming to the merit of this appeal, it needs to be pointed that the expression, benami transaction, is defined, in Section 2(a) of the said Act, to mean, 'any transaction in which property is transferred to one person for a consideration paid or provided by another person'. 7. Sections 3 and 4, which have a bearing in the present appeal, read: 3. Prohibition of Benami Transactions.-- (1) No person shall enter into any benami transaction. 7. Sections 3 and 4, which have a bearing in the present appeal, read: 3. Prohibition of Benami Transactions.-- (1) No person shall enter into any benami transaction. (2) Nothing in Sub-section (1) shall apply to- (a) the purchase of property 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 purchase for the benefit of the wife or the unmarried daughter; (b) the securities held by a--depositor as registered owner under Sub-section (1) of Section10 of the Depositories Act, 1996. (i) participant as an agent of a depository. (3) Whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under this section shall be non-cognizable and bailable. 4. Prohibition of the right to recover any property held benami- (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. (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 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. 8. A bare reading of the provisions of Section 3 clearly shows that no one shall enter into any benami transaction except where the properties were purchased in the name of his wife or unmarried daughter. 8. A bare reading of the provisions of Section 3 clearly shows that no one shall enter into any benami transaction except where the properties were purchased in the name of his wife or unmarried daughter. Thus, there is a clear bar in entering into a benami transaction since 05.09.88, i.e., the date when the said Act came into force, except if a property is purchased in the name of the purchaser's wife or unmarried daughter. 9. The question, now, is: Basing on a benami transaction, which had been entered into by a person before coming into force of the said Act, whether any suit can be instituted to recover the property involved in such a benami transaction? In other words, the question is: Whether any right, derivable from a benami transaction, can be enforced by instituting a suit in respect of a property, held benami, against the person, in whose name the property is held or against any other person, by a person claiming to be the real owner of the property? 10. In the case at hand, since the suit land was, admittedly, purchased in the name of Defendant No. 3, namely, the mother of the plaintiff, the question would be as to whether the plaintiff could have instituted the suit to claim that he was the true owner of the suit land. 11. In Milhilesh Kumari and Anr. v. Prem Behari Khare, reported in (1989) 2 SCC 95 , a two-Judge Bench of the Supreme Court held that Section 3 cannot have retrospective effect. Even in respect of Section 4, the Apex Court held that the provisions, contained in Section 4, cannot be applied retrospectively meaning thereby that benami transaction, which had already been entered into before coming into the said Act, were protected and, consequently, any right, derivable from such benami transaction, can be enforced even after the said Act has come into force. 12. However, while agreeing with the view, expressed in Mithilesh Kumari and Anr. v. Prem Behari Khare (supra), that Section 3 is prospective in operation, a three-Judge Bench, in Rajagopal Redely v. Padmi Chandrasekharan, reported in (1995) 2 SCC 630 , has held that Mithilesh Kumari (supra) does not lay down the correct proposition of law so far as the applicability of Sections 2, 3 and 4 are concerned. v. Prem Behari Khare (supra), that Section 3 is prospective in operation, a three-Judge Bench, in Rajagopal Redely v. Padmi Chandrasekharan, reported in (1995) 2 SCC 630 , has held that Mithilesh Kumari (supra) does not lay down the correct proposition of law so far as the applicability of Sections 2, 3 and 4 are concerned. The relevant observations, made, in this regard at Para 17, read: As regards, reason 3, we are of the considered view that the Act cannot be treated to be declaratory in nature. Declaratory enactment declares and clarifies the real intention of the legislature in connection with an earlier existing transaction or enactment it does not create new rights or obligations. On the express language of Section 3, the Act cannot be said to be declaratory but in substance it is prohibitory in nature and seeks to destroy the rights of the real owner qua properties held benami and in this connection it has taken away the right of the real owner both for filing a suit or for taking such a defence in a suit by benamidar. Such an Act which prohibits benami transactions and destroys rights flowing from such transaction as existing earlier is really not a declaratory enactment. With respect, we disagree with the line of reasoning which commanded to the Division Bench. In this connection, we may refer to the following observations in Principles of Statutory Interpretation, 5th Edn., 1992, by Shri G.P. Singh, at page 315 under the caption 'Declaratory statutes: The presumption against retrospective operation is not applicable to declaratory statutes. As stated in Craies and approved by the Supreme Court: For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any statute. Such Acts are usually held to be retrospective. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error whether in the statement of the common law or in the interpretation of statutes. Usually, if not invariably, such an Act contains a preamble, and also the word "declared" as well as the world enacted. The usual reason for passing a declaratory Act is to set aside what Parliament deems to have been a judicial error whether in the statement of the common law or in the interpretation of statutes. Usually, if not invariably, such an Act contains a preamble, and also the word "declared" as well as the world enacted. But the use of the words 'it is declared' is not conclusive that the Act is declaratory for these words may, it times be used to introduce new rules of law and the Act in the latter case will only be amending the law and will not necessarily be retrospective. In determining, therefore, the nature of the Act, regard must be had to the substance rather than to the form. If a new Act is to explain an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubt; as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended. The language shall be deemed always to have meant' is declaratory, and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when the pre-amended provision was clear and unambiguous. An amending Act may be purely clarificatory to char a meaning of a provision of the Principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law when the Constitution came into force the amending Act also will be part of the existing law. In Mithilesh Kumari v. Prem Behari Khare, Section 4 of the Benami Transactions (Prohibition) Act, 1988 was, it is submitted, wrongly held to be an Act declaratory in nature for it was not passed to clear any doubt existing as to the common law or the meaning or effect of any statute. The conclusion however, that Section 4 applied also to past benami transactions may be supportable on the language used in the section. 13. The conclusion however, that Section 4 applied also to past benami transactions may be supportable on the language used in the section. 13. From the decision, in R. Rajagopal Reddy (supra), it becomes clear, as already indicated above, that no suit can be instituted and no claim can be made by any person to enforce any right in respect of any property against a person in whose name the property is held. The Supreme Court has clarified, in R. Rajagopal Rudely (supra), that the said Act is not merely declaratory; rather, it is, in substance, prohibitory in nature and seeks to destroy the right o f real owner qua property held Benami and that the said Act has taken away not only the right of a person to institute a suit to enforce hi s right as a real owner, but also to take the de fence, as real owner, in a suit instituted by benamidar (i.e., the person in whose name property stands.). Thus, no one can institute a suit in respect of a property claiming himself to be the real owner against the person in whose name the property stands, except when the property is held in the name of the wife or unmarried daughter of the person, who claims to be the real owner. Similarly, no person can take defence, as a real owner of a property, in a suit instituted by the person in whose name the property stands. The Supreme Court has clarified, in Rajagopal Reddy (supra), that the said Act has created substantive rights in favour of benamidar and has destroyed the substantive rights of real owner, who is a party to a benami transaction. 14. In the light of the above position of law, it clearly follows that though the suit property had been purchased prior to coming into force of the said Act, the suit, having been instituted after the said Act had already come into force, was clearly barred in law. 14. In the light of the above position of law, it clearly follows that though the suit property had been purchased prior to coming into force of the said Act, the suit, having been instituted after the said Act had already come into force, was clearly barred in law. To put it a little differently, the plaintiff, in the present case, could not have instituted such a suit seeking a decree declaring his rights, title and interest over the suit property (as had been sought for by him) nor could he have sought for a decree granting perpetual injunction restraining the Defendants, including the Defendant No. 3, (i.e., the mother of the plaintiff) from entering into the suit land inasmuch as what he was attempting to do, by instituting the suit, was that he was trying to enforce a right, which is based on benami transaction, though statutory provisions bar enforcement of any right, derivable or derived from, and/or based on, benami transaction, against the person in whose name the property stands. 15. Realising that the suit, in the present case, could not have been instituted by the Appellant, Mr. A.K. Goswami, learned senior counsel, submits that the present suit is saved under Clause (a) of Sub-section (3) of Section 4 inasmuch as the suit property, according to Mr. Goswami, is a property belonging to a Hindu undivided family, which consists of the plaintiffs and the Defendants. For the purpose of clear understanding of Mr. Goswami's submission, a careful analysis of Clause (a) of Sub-section (3) of Section 4 is needed. 16. In the present case, the parties to the suit are, admittedly, governed by Dayabhaga Hindu School of Law there is no dispute that in Mittakshara School of Hindu Law, there is a presumption of coparcener unless the presumption is rebutted. Under the Dayabhaga Hindu School of Law, during the lifetime of the father, there is no coparcener in the strict sense of the term as is understood in Mittakshara School of Hindu Law. In Dayabhaga School of Hindu Law, the heirs do not constitute an undivided Hindu family. In the absence of any agreement to constitute a Hindu undivided family, the heirs inherit jointly the property left to them by the head of the family. 17. In Dayabhaga School of Hindu Law, the heirs do not constitute an undivided Hindu family. In the absence of any agreement to constitute a Hindu undivided family, the heirs inherit jointly the property left to them by the head of the family. 17. Mayne, in his Treatise on Hindu Law and Usage, explains the characteristics of a Dayabhaga joint family in the following language: Where property is held by a father as head of an undivided family, his issue have no legal claim upon him or the property, except for maintenance. The father can dispose of the property as he pleases; the sons can neither control, nor call for an account of his management. It follows therefore, that under the Dayabhaga Law, a father and his sons do not form a joint family in the technical sense having coparcenary property. But as soon as it has made a descent, the brothers or other coheirs hold their shares in a sort of quasi-severalty. 18. Jogendra Chandra Ghose, in his book Principles of Hindu Law (3rd Edition, Vol. J), speaks of the difference between Mittakshara and Dayabhaga joint family in the following words: There is a very great difference in the legal positions of members of the Mittakshara and Dayabhaga joint families. The right of a Mittakshara coparcener is like that of a joint-tenant whose interest until partition is undefined and passes by survivorship to the other coparcener, except when he leaves male issue. The right of a Dayabhaga coparcener is that of a tenant-in-common. 19. Explaining the characteristics of a Mittakshara joint family (Benaras School) Westbury J. observed in Appovier v. RamasubbaAiyan as follows: According to the true notion of an undivided family in Hindu Law, no individual member of that family, whilst it remains undivided, can predicate of the joint and undivided property, that he, that particular member, has a certain definite share. No individual member of an undivided family could go to the place of the receipt of rent and claim to take from the collector or receiver of the rents, a certain definite share. The proceeds of the undivided property must be brought according to the theory of an undivided family, to the common chest or purse and then dealt with according to the modes of enjoyment by the members of an undivided family. 20. The proceeds of the undivided property must be brought according to the theory of an undivided family, to the common chest or purse and then dealt with according to the modes of enjoyment by the members of an undivided family. 20. Now the application of the term "coparcenary" to the Dayabhaga School of Law is somewhat misleading. In Golap Chandra Sastri's Treatise on Hindu Law, this aspect has been described in the following words: When two or more persons are entitled to the same property in equal or unequal shares it is said to be their joint property. The expressions joint-tenants, tenants-in-common, and coparceners are technical terms of English Law used to designate different descriptions of co-owners of joint property, with special incidents. The use of these terms to express coheirs under Hindu Law by reason of analogy in some respect is often misleading and gives rise to confusion.... (p. 337) "The English joint-tenancy and the Mittakshara joint-tenancy differ from each other in many respects. The former is created by a grant under a deed of transfer inter vivos, i.e., by purchase and not by descent, while the latter owes its origin to inheritance only. Under the former each cotenant is entitled to the whole, as well as to h s undivided equal share of the property, i.e., the whole estate as well as his own equal proportion are vested in each joint tenant; but under the latter, the whole estate, not any share of it, is vested in each member, who whilst undivided, cannot predicate of the property, that he has any definite share, which again when ascertained by partition is not necessarily equal: accordingly, an English joint-tenant possesses an absolute power to dispose, by a transfer inter vivos but not by a will, of his own share, and so to put an end to his joint tenancy; whilst a member of a Mittakshara joint family, having if definite share, cannot alienate his undivided coparcenary interest, and he cannot destroy the joint tenancy except by separation which he is at liberty to effect, whenever he chooses.(p. 338). 21. In Golap Chandra Sastri's Treatise on Hindu Law, the term' Coparcener' has been defined as under: Coparceners are two or more persons who jointly inherit property, whereof they have unity of possession which, however, may be severed at any time by partition. 21. In Golap Chandra Sastri's Treatise on Hindu Law, the term' Coparcener' has been defined as under: Coparceners are two or more persons who jointly inherit property, whereof they have unity of possession which, however, may be severed at any time by partition. There is no survivorship, such taking an undivided share, which, on his or her death, goes to his or her heir. The coffers and their heirs are called coparceners or parceners so long as unity of possession continues."(p.339) 22. The learned author, then, proceeds to explain the nature of a joint family, under the Bengal School, as follows: It is after the death of the father, that the sons may, agreeably to the modern view of the ancestral property, really become members of a joint family. According to the theory of the Bengal School they become tenanting common, and not joint tenants, in respect of the estate inherited by them from their father; but still their interest remains common as long as the family continues joint, community of interest being the criterion of jointness in both the schools. The agreement forming the foundation of reunion proves the true nature and character of joint family property under the Bengal School notwithstanding the title of the coheirs being in severalty, namely, "what is thine is mine, and what is mine is thine. 23. From what have been pointed out above, it is clear that on the death of father, in Dayabhaga School of Hindu Law, his successors may live separately. If they do not decide to live together as a Hindu undivided family, they would merely own the inherited property as a joint property i.e., as tenants in common, but do not form joint family. A joint family, of such brothers, who are governed by Dayabhaga School of Hindu Law, is not a creation of law, but a result of volition on the part of the brothers. There is no presumption of existence of Hindu undivided family in Dayabhaga School of Hindu Law, unless shown otherwise, inasmuch as a joint family, in Dayabhaga School of Hindu Law, originates in fact and is not created by operation of law. 24. There is no presumption of existence of Hindu undivided family in Dayabhaga School of Hindu Law, unless shown otherwise, inasmuch as a joint family, in Dayabhaga School of Hindu Law, originates in fact and is not created by operation of law. 24. Having minutely analysed as to whether, in the Dayabhaga School of Hindu Law, a joint family automatically comes into operation on the death of the father, a Division Bench of Calcutta High Court, in Commissioner of Wealth Tax v. Gouri Shankar Bhar, reported in (1968) 68 1 TR 345, has summarized the position of law in the following words: The position in law thus be summarized. After the death of a Dayabhaga father, his successor may live as a Hindu undivided family or be separate. If they do not decide to live together as a Hindu undivided family, they merely own the inherited property as joint property, that is to say, as tenants-in-common, but do not form a joint family. A joint family amongst brothers, under the Dayabhaga School of Law, is a creation not of law, is a, but of a desire to live jointly. It originates, in fact, and not by legal fiction. 25. In short, on the death of a Hindu father, his heirs do not automatically constitute a Hindu undivided family. In the absence of any agreement to constitute a Hindu undivided family, they merely inherit the entire estate of the father as their joint property and their legal status would be as tenants in common and not constitute a Hindu joint family. 26. The above statement of law, as laid down in Gouri Shankar Bhar (supra), stands impliedly affirmed by the Apex Court in Commissioner of Wealth Tax v. Gouri Shankar Bhar, reported in (1972) 84 ITR 699, wherein the Apex Court has upheld the above position of law, in Gouri Shankar Bhar (supra), in the following words: The learned Solicitor General appearing for the Commissioner of Wealth Tax very appropriately conceded that the property with which we are concerned in this case was the individual property of the deceased Prafulla Chandra Bhar. He also conceded that on the death of the said Prafulla Chandra Bhar, the property devolved on his heirs in severalty. Each one of his heirs took a definite share in the property left by the deceased. He also conceded that on the death of the said Prafulla Chandra Bhar, the property devolved on his heirs in severalty. Each one of his heirs took a definite share in the property left by the deceased. In view of that concession it is not necessary for us to decide in this case whether a Dayabhaga Hindu family can be considered as a Hindu undivided family within the meaning of Section 3 of the Wealth-Tax Act, 1957. Quite clearly on the facts of this case, the heirs of the deceased took the property of the deceased in separate shares. Therefore, in law, each one of them is liable to pay wealth-tax as individual. It cannot be said that an individual, who inherits some property from someone, becomes a Hindu undivided family, merely because he is a member of the Hindu undivided family. 27. In the present case, apart from the fact that as a principle of law, it is not permissible to presume existence of a Hindu undivided family, in a case governed by Dayabhaga School of law, unless an agreement to form such a family can be shown to exist, the pleadings, in the plaint, completely belie such a contention of the Appellant inasmuch as the plaintiff has, nowhere, pleaded, in the plaint, that at the time, when the suit property was purchased, the plaintiff and the Defendants constituted a Hindu undivided family. In fact, in Para 4, the plaintiff claims that in the year 1993, he got an opportunity to purchase a plot of land and, on his request, his brothers financially helped him to purchase the property and he accordingly purchased the suit land in the name of his mother in order to lead a joint family life. At Para 19, the plaintiff states that he is the true owner and in continuous and peaceful occupation of the suit land. The plaintiff, nowhere, claims that he is one of the co-owners of the suit property. Setting at rest all confusion and controversies in this regard, the Petitioner seeks, as indicated, at Para 27 of the suit, declaration of his rights, title and interest over the suit land and also injunction restraining the Defendants from entering into the suit land. The plaintiff, nowhere, claims that he is one of the co-owners of the suit property. Setting at rest all confusion and controversies in this regard, the Petitioner seeks, as indicated, at Para 27 of the suit, declaration of his rights, title and interest over the suit land and also injunction restraining the Defendants from entering into the suit land. Thus, the plaintiff's case, undoubtedly, is that notwithstanding the fact that the suit property stands in his mother's name, he (plaintiff) was, at all relevant points of time and even, now, the sole and absolute owner of the suit property and that he had exclusive right to enter into, and remain on, the suit property. 28. In the face of the pleaded case of the plaintiff, there can be no doubt that the plaintiff had, nowhere, claimed that the suit property was purchased in the name of his mother as a property belonging to a Hindu undivided family. 29. As indicated above, the plaintiff claims his exclusive ownership over the property. By no means, the case of the plaintiff can be said to fall within the exception as carved out by Clause (a) of; Sub-section (3) of Section 4. 30. Because of what have been discussed and pointed out above, this Court finds no merit in this appeal. The appeal, therefore, fails and the same shall accordingly stand dismissed. Appeal dismissed