Judgment: Sanjay Yadav, J. 1. Order dated 19.1.2006 passed by Civil Judge, Class-I, Gadarwara in Civil Suit No. 37-A/2005 is challenged vide this petition under Article 227 of the Constitution of India. By said order document nomenclature as 'Sahmati Soochak Ikrarnama; tendered in evidence by the petitioner plaintiff to prove part of it recording the statement made therein by the respondent No. 1/defendant has been declined to be taken in evidence on the ground that the same since record relinquishment of right in property is inappropriately stamped. Suit allegations are that the petitioner and respondent No. 1/defendant No. 1 are real brothers. Out of self acquired income the petitioner/plaintiff by registered sale-deed dated 23.6.1967 purchased Khasra No. 299/1 area 2.023, Khasra No. 299/2 area 0.405, Khasra No. 299/4 area 2.023 and Khasra No. 297 area 1.259, Mouja Bodri, Patwari Hallka No. 45 from one Sunder Singh Rajpoot. Sale-deed was registerd in favour of father. Likewise by registered sale-deed dated 13.5.1968, the petitioner/plaintiff purchased Khasra No. 299/3, area 0.765 from one Chottelal in the name of his father. 2. That, after the death of father said Sahmati Soochak Ikrarnama was executed between the petitioner/plaintiff and the respondent/defendant on 20.4.2002 on a Rs. 50/- stamp paper. 3. The document in question is in two parts. First part comprised of the acknowledgment by the executant, viz., the respondent No. 1/defendant regarding land bearing Khasra No. 299/3 area 0.76 hectare being purchased by the petitioner in the name of the father, and after his death the name of other brother and sister was mutated in the revenue record and since they are not the real owner they have no claim over the said property. The recital is in the following terms: 4. The second part which the petitioner/plaintiff is not concerned with regard to the portion of the family property. 5. Placing reliance on the decision in Krishanji v. Sukhdev: AIR 1923 Nag 284, and Ms. Takhtibai v. The State: AIR 1957 Raj 125 , it is contended by learned Senior Counsel that the trial court has wrongly construed the instrument which is divisible, as a relinquishment deed. It is urged that, unless there is an antecedent right, title or interest in a person there cannot be a relinquishment. It is the pre-existing right in property which pre-supposes the relinquishment. It is urged that, unless there is an antecedent right, title or interest in a person there cannot be a relinquishment. It is the pre-existing right in property which pre-supposes the relinquishment. It is urged that since the deed acknowledges the pre- existing right of the petitioner, the same was not required to be registered. In respect of divisibility of the document in question learned Senior Counsel places reliance on the decision in Sanjeeva Ready v. Johanputra ( AIR 1972 AP 373 ) approved in Avinash Kumar Chouhan v. Vijay Krishna Mishra: (2009) 2 SCC 532 . It was held therein: 9. While considering the scope of Section 35 of the Stamp Act we cannot bring in the effect of non-registration of a document under Section 49 of the Registration Act. Section 17 of the Registration Act deals with documents, the registration of which is compulsory and Section 49 is concerned only with the effect of such non-registration of the documents which require to be registered by Section 17 or by any provision of the Transfer of Property Act. The effect of non-registration is that such a document shall not affect any immovable property covered by it or confer any power to adopt and it cannot be received as evidence of any transaction affecting such property or conferring such power. But there is no prohibition under Section 49 to receive such a document which requires registration to be used for a collateral purpose i.e. for an entirely different and independent matter. There is a total and absolute bar as to the admission of an unstamped instrument whatever be the nature of the purpose or however foreign or independent the purpose may be for which it is sought to be used, unless there is compliance with the requirements of the provisos to Section 35. In other words if an unstamped instrument is admitted for a collateral purposes. It would amount to receiving such a document in evidence for a purpose which Section 35 prohibits. There is nothing in B. Rangaiah v. B. Rangaswamy, (1970) 2 AWR 181 which supports the contention of the petitioner. That was a case as pointed out by Kuppuswami, J., where there were two instruments though contained in one document one a settlement in favour of the 4th defendant therein and the other a will. There is nothing in B. Rangaiah v. B. Rangaswamy, (1970) 2 AWR 181 which supports the contention of the petitioner. That was a case as pointed out by Kuppuswami, J., where there were two instruments though contained in one document one a settlement in favour of the 4th defendant therein and the other a will. It was therefore held that part of the instrument which constitutes a will did not require any stamp and will be admissible in evidence for proving the bequest contained therein. It was for that reason that the learned Judge said that Sec. 35 of the Stamp Act has no application to a case where one of the separate instruments relating to one such matters would not at all be chargeable under the Act as in the case before him. 6. The summon bound of submission by learned Counsel for the petitioner is that having purchased the property in question in 1967 and 1968 from his self acquired income though in the name of his father, it is the petitioner/plaintiff who was the real owner of the property and, therefore, an acknowledgment in writing by brother of petitioner will not tantamount to relinquishment of right to property by brother which he does not owe as would warrant the registration of the document in question. Be that as it may. Even if the decision in Krishanji v. Sukhdev:(supra), Mst. Takhtibai v. The State (supra) and Sanjeev Reddy v. Johanputra Reddy (supra) (in respect of divisibility of document in question) is accepted to lay down the correct proportion regarding relinquishment which can be only when a right exists, the question which still lingers is as to whether petitioner on the basis of sale-deed dated 23.6.1967 and 13.5.1968, which admittedly recorded father of the petitioner as the purchaser of the property in question, can claim any right over the property in question after coming into force of Benami Transactions (Prohibition) Act, 1988. And for the reason of provisions contained in Sections 3 and 4 thereof. Sections 3 and 4 of 1988 Act respectively provides: 3. Prohibition of benami transactions-(1) No person shall enter into any benami transaction. And for the reason of provisions contained in Sections 3 and 4 thereof. Sections 3 and 4 of 1988 Act respectively provides: 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 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 been purchased for the benefit of the wife of the unmarried daughter. (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, 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 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. In R. Rajagopal Reddy (dead) by L. Rs and others v. Padmini Chandrasekharan (dead) by L. Rs ( AIR 1996 SC 238 ) it is held: 13. In R. Rajagopal Reddy (dead) by L. Rs and others v. Padmini Chandrasekharan (dead) by L. Rs ( AIR 1996 SC 238 ) it is held: 13. So far as Section 4(2) is concerned, all that is provided is that if a suit is filed by a plaintiff who claims to be the owner of the property under the document in his favour and holds the property in his name, once Section 4(2) applies, no defence will be permitted or allowed in any such suit, claim or action by or on behalf of a person claiming to be the real owner of such property held benami. The disallowing of such a defence which earlier was available, itself suggests that a new liability or restriction is imposed by Section 4(2) on a preexisting right of the defendant. Such a provision also cannot be said to be retrospective or retroactive by necessary implication. It is also pertinent, to note that Section 4(2) does not expressly seek to apply retrospectively. So far as such a suit which is covered by the sweep of Section 4(2) is concerned, the prohibition of Section 4(1) cannot apply to it as it is not a claim or action filed by the plaintiff to enforce right in respect of any property held benami. On the contrary, it is a suit, claim or action flowing from the sale deed or title deed in the name of the plaintiff. Even though such a suit might have been filed prior to 19.5.1988, if before the stage of filling of defence by the real owner is reached, Section 4(2) becomes operative from 19th May. 1988, then such a defence, as laid down by Section 4(2) will not be allowed to such a defendant. However, that would not mean that Section 4(1) and 4(2)only on that score can be treated to be impliedly retrospective so as to cover all the pending litigations in connection with enforcement of such rights of real owners who are parties to benami transactions entered into prior to the coming into operation of the Act and specially Section 4 thereof. It is also pertinent to note that Section 4(2) enjoins that no such defence 'shall be allowed' in any claim, suit or action by or on behalf of a person claiming to be the real owner of such property. It is also pertinent to note that Section 4(2) enjoins that no such defence 'shall be allowed' in any claim, suit or action by or on behalf of a person claiming to be the real owner of such property. That is to say no such defence shall be allowed for the first time after coming into operation of Section 4(2). If such a defence is already allowed in a pending suit prior to the coming into operation of Section 4(2), enabling an issue to be raised on such a defence, then the Court is bound to decide the issue arising from such an already allowed defence as at the relevant time when such defence was allowed Section 4(2) was out of picture. Section 4(2) nowhere uses the words "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 to be raised or continued to be raised in any suit." With respect, it was wrongly assumed by the Division Bench that such an already allowed defence in a pending suit would also get destroyed after coming into operation of Section 4(2). We may at this stage refer to one difficulty projected by learned advocate for the respondents in his written submissions, on the applicability of Section 4(2). These submissions read as under "Section 4(1) places a bar on a plaintiff pleading 'benami', while Section 4(2) places a bar on a defendant pleading 'benami' after the coming into force of the Act. In this context, it would be anomalous if the bar in Section 4 is not applicable if a suit pleading 'benami' is already filed prior to the prescribed date, and it is treated as applicable only to suit which he filed thereafter. It would have the effect of classifying the so-called 'real' owners into two classes - those who stand in the position of plaintiffs and those who stand in the position of defendants. This may be clarified by means of an illustration. A and B are 'real' owners who have both purchased properties in say 1970, in the names of C and D respectively who, are ostensible owners viz. benamidars. This may be clarified by means of an illustration. A and B are 'real' owners who have both purchased properties in say 1970, in the names of C and D respectively who, are ostensible owners viz. benamidars. A files a suit in February 1988 i.e. before the coming into force of the Act against C, for declaration of his title saying that C is actually holding it as his benamidar. According to the petitioner's argument, such a plea would be open to A even after coming into force of the Act, since the suit has already been laid. On the other hand, if D file a suit against B at the same for declaration and injunction, claiming himself to be the owner but B's opportunity to file a written statement comes in say November 1988 when the Act has already come into force, he in his written statement cannot plead that D is a benamidar and that he, B is the real owner. Thus A and B, both 'real' owners, would stand on a different footing, depending upon whether they would stand in the position of plaintiff or defendant. It is respectfully submitted that such a differential treatment would not be rational or logical." 14. According to us this difficulty is inbuilt in Section 4(2) and does not provide the rationale to hold that this Section applies retrospectively. The legislature itself thought it fit to do so and there is no challenge to the vires on the ground of violation of Article 14 of the Constitution. It is not open to us to re-write the section also. Even otherwise, in the operation of Section 4(1) and (2), no discrimination can be said to have been made amongst different real owners of property, as tried to be pointed out in the written objections. In fact, those cases in which suits are filed by real owners or defences are allowed prior to coming into operation of Section 4(2), would form a separate class as compared to those cases where a state for filling such suits or defences has still not reached by the time Section 4(1) and (2) starts operating. Consequently, latter type of cases would form a distinct category of cases. There is no question of discrimination being meted out while dealing with these two classes of cases differently. Consequently, latter type of cases would form a distinct category of cases. There is no question of discrimination being meted out while dealing with these two classes of cases differently. A real owner who has already been allowed defence on that ground prior to coming into operation of Section 4(2) cannot be said to have been given a better treatment as compared to the real owner who has still to take up such a defence and in the meantime he is hit by the prohibition of Section 4(2). Equally there cannot be any comparison between a real owner who has filed such suit earlier and one who does not file such suit till Section 4(1) comes into operation. All real owners who stake their claims regarding benami transactions after Section 4(1) and (2) came into operation are given uniform treatment by these provisions, whether they come as plaintiffs or as defendants. Consequently, the grievances raised in this connection cannot be sustained. 7. It is not in dispute that the suit filed by the petitioner is after the coming into force of Benami Transactions (Prohibition) Act, 1988 and for the reasons of Sections 3 and 4 thereof petitioner cannot claim that he has an exclusive right over the property which stood in the name of the father and after death the property passed on to the legal representatives. Adjudged from this angle it cannot be said that the defendant No. 1 had no antecedent right, title or interest in the suit property. 8. Tested on the anvil of above analysis, the impugned order cannot be faulted with. For the reasons above petition fails and is hereby dismissed. There shall be no costs.