JUDGMENT : This appeal has been filed challenging the judgment and decree passed by the learned Additional District Judge, Jajpur in Title Appeal No.39 of 1997. The appellant as the plaintiff had filed the suit for declaration of his right, title and interest over the suit property, recovery of possession and permanent injunction. The suit having been dismissed, he had carried a first appeal under section 96 of the Code of Civil Procedure. The lower appellate court while partly allowing the appeal has allowed the suit in part declaring the appellant-plaintiff, respondent-defendant and two other daughters of Bharat, namely, Malati and Sebati to be jointly having right, title and interest over the suit land in consonance with the title and interest of their respective vendors. The appellant-plaintiff being still grieved by the above judgment and decree of the lower appellate court is now before this Court with the second appeal under section 100 of the Code. It is pertinent to state here that the original plaintiff having died during this appeal, his legal representatives are now pursuing the appeal as the appellants. 2. For the sake of convenience, in order to bring in clarity and avoid confusion, the parties hereinafter have been referred to as they have been arraigned in the trial court. 3. Plaintiff’s case is that the suit schedule land was the purchased property of Laxmi Devi wife of Bharat and it was her stridhan property. The property is said to have been purchased by registered sale deed dated 15.11.1950 from Siba Pati and others. Laxmi died leaving her only issue Kampal who became the exclusive owner of the suit land and as such remained in possession. It is stated that said Kampal had sold the land to plaintiff by registered sale deed dated 11.08.1971 and since then the plaintiff has remained in possession of the said property purchased by him as its exclusive owner. It is explained that the scribe by way of bonafide mistake had written in the sale deed that the said property was acquired by the father of Kampal. It is his further case that Bharat, the husband of Laxmi had a concubine, namely, Mani Dibya and she was kept as such after Laxmi died. It is admitted that Bharat has two daughters through that Mani. So, it is asserted that neither Mani nor her daughters have right over the property. It is his further case that Bharat, the husband of Laxmi had a concubine, namely, Mani Dibya and she was kept as such after Laxmi died. It is admitted that Bharat has two daughters through that Mani. So, it is asserted that neither Mani nor her daughters have right over the property. It is alleged that one Janaki Devi wanted to usurp the disputed land and attempted to enter upon it sometime in the year 1981, the same had given rise to a proceeding under section 144, Cr.P.C., which ultimately stood dropped and thus the attempt of Janaki failed. The plaintiff claims to be having his house at a distance of four miles from the suit land which was under enclosure. It is further stated that on 16.08.1987, the plaintiff coming near the suit land, found to his utter surprise that the foundation of the building has been made on the mid portion of the said plot. This drove him to make necessary inquiry. Then it came to be known from the defendant’s that they claim to have purchased the same from Janaki on 03.06.1983. So he further enquired the matter. However, the construction was hurriedly progressed over the suit land and in spite of the request, the defendant did not vacate the same. The plaintiff claims to have mutated the suit land in his name and to be also paying rent. Thus, finally the plaintiff filed the suit. 4. The defendant coming to contest the suit pleaded that the disputed property was not the purchased property of Laxmi wife of Bharat and as such was not her stridhan property. It is stated that she never purchased the property from Siba Pati and others by registered sale deed dated 15.11.1956 nor at any time possessed the property on her own right. The assertion of the plaintiff that Laxmi died leaving her only issue Kampal who became the exclusive owner of the suit land in possession of the same under one enclosure has been denied. Similarly, the sale said to have been made by Kampal to the plaintiff by registered sale deed dated 11.08.1971 and the plaintiff becoming the owner thereby coming to possess the suit land have also been denied. Similarly, the sale said to have been made by Kampal to the plaintiff by registered sale deed dated 11.08.1971 and the plaintiff becoming the owner thereby coming to possess the suit land have also been denied. The mistake on the part of the scribe in quoting the recitals over the said sale deed that it was the property purchased by the father of the Kampal is said to be an afterthought and that had thus been correctly recited. It is stated that the suit land stood recorded in the name of Dhani Pati, Binod Parida, Nakphodi Parida. Dhani had half interest over the same. So, after death of Dhani, his son Siba for himself and as the guardian of his minor brother Narayan sold the suit land to Bharat Pati by registered sale deed dated 25.04.1985 followed by delivery of possession. Accordingly, it is said that Bharat possessed the suit land as its owner and he had paid the consideration for the same. However, because of his love and affection towards his wife Laxmi in order to please her without any such intention to benefit her or clothe her with the ownership of the property, the sale deed was just made in her name. It is also stated that Laxmi had no income of his own. The land then was mutated in the name of Bharat who paid the rent. It is stated that Bharat continued to possess the land till his death. Laxmi said to have predeceased Bharat having left the mortal world in the year 1957. So, Bharat and Kampal stood as her legal successors. Bharat is said to have married Mani after the death of Laxmi and begotten four daughters. Bharat died in the year 1965 leaving behind his wife Mani, son Kampal and four daughters, namely, Malati, Malli, Sebati and Ketaki who are all said to have succeeded to the property of Bharat, each having 1/6th interest over it and it is said that they are accordingly in possession. It is further stated that Mani, Malli, Ketaki while possessing the suit land sold half of it from the western side to one Janaki Mohapatra for a consideration of Rs.800/- by registered sale deed dated 03.03.1981 and delivered possession of the same to her. Janaki accordingly mutated the same and paid rent. It is further stated that Mani, Malli, Ketaki while possessing the suit land sold half of it from the western side to one Janaki Mohapatra for a consideration of Rs.800/- by registered sale deed dated 03.03.1981 and delivered possession of the same to her. Janaki accordingly mutated the same and paid rent. This Janaki in turn is said to have again sold the land to the defendant by registered sale deed dated 03.06.1983 and this defendant thus claims to have become the owner of the said western Ac.0.02 dec. of land and has been in possession by constructing house over it. It is also his case that the purchased land has been mutated in his name and he has been paying rent. Thus, he claims ownership over his purchased land. 5. Faced with the above rival pleadings, the trial court having framed in total seven issues, has answered those as under:- (a) Mani is the legally married wife of Bharat; (b) the plaintiff is a bona fide purchaser for value; (c) the status of all the daughters of Mani seriously challenged by the plaintiff cannot be decided in the suit since they are not parties and, therefore, the extent of interest of the each of the successor of Bharat over the suit property cannot be found out; (d) all the successors of Bharat having not been made parties to the suit, the same gives a fatal blow to the suit of the plaintiff and the suit, as laid with the reliefs claimed has to fail; (e) the defendant by virtue of the purchase has stepped into the shoes of co-sharers in respect of the suit property being a bona fide purchaser for value and, therefore, he cannot be evicted and no injunction can be issued against him. With all these above, the trial court dismissed the suit. 6. In the appeal filed by the unsuccessful plaintiff, the lower appellate court upon discussion of evidence has come to conclude that Bharat died intestate leaving behind his widow Mani, son Kampal through his first wife Laxmi and four daughters, namely, Malli, Malati, Ketaki and Sebati through his second wife Mani. 6. In the appeal filed by the unsuccessful plaintiff, the lower appellate court upon discussion of evidence has come to conclude that Bharat died intestate leaving behind his widow Mani, son Kampal through his first wife Laxmi and four daughters, namely, Malli, Malati, Ketaki and Sebati through his second wife Mani. It has next been discussed and said that if Bharat would be taken to be the owner of the property and consequent to the same when it would be said that after his death the suit land was inherited equally by his son Kampal, second wife Mani and four daughters, namely, Malli, Malati, Ketaki and Sebati through Mani. Each of them have 1/6th share over the suit land. It has to be next said that the defendant having purchased through Mani, Malli, Ketaki has got half interest over the suit land which comes to the extent of Ac.0.02 dec. and, therefore, he has title over the purchased land covered under the sale deed (Ext.A). Therefore, in that situation six successors would be having 1/6th share and the defendant’s purchased land would stand covered by the interest of his vendors when it comes to the extent Ac.0.02 dec. covered under Ext.A, the sale deed. Elaborating the other side of the coin that if as per the plaintiffs case it would be taken to be the property of Laxmi then Kampal would be having 7/12th share and Mani and four daughters would be having 5/12th share. However, discussing all these consequences in case of acceptance of the case of the plaintiff with regard to the ownership of the property and even the case projected by the defendant in that regard, the lower appellate court has gone to say that in the absence of two daughters of Bharat, namely, Sebati and Malati being parties to the suit, the said issue cannot be decided effectively as it would substantially affect the rights and those two daughters. Therefore, keeping the issue open to be decided later in an appropriately constituted suit if so comes up, on the admitted case, the lower appellate court then has held that the plaintiff and defendant both have acquired title and same interest with regard to the suit land equivalent towards the interest of their respective vendors. So, saying both plaintiff’s and defendant’s right, title and interest over the suit land in part has been declared. So, saying both plaintiff’s and defendant’s right, title and interest over the suit land in part has been declared. Resultantly, the plaintiff has been declined to be granted with the relief of eviction of the defendant as also injunction. This is now again under challenge in this appeal. 7. By order dated 25.02.2014 the appeal has been admitted on the following substantial question of law: “Whether the learned courts below have committed error of law in not considering the effect of section 4 of the Banami Transaction (Prohibition) Act, 1988?” 8. I have heard the learned counsels for the parties at length on the merit of the case for the purpose of recording the answer to the substantial question of law in considering its impact upon the ultimate decision. For the purpose, the judgments rendered by the courts below have also been carefully read. 9. The Benami Transaction (Prohibition Act), 1988 (hereinafter referred to as the ‘Act’) having received the assent of His Excellency, the President of India on 05.09.1988, the provision of sections 3,5 and 8 came into force at once and the remaining provisions of the Act were given the retrospective effect as to have come into force w.e.f. 19.05.1988. 10. Though in the decision reported in AIR 1989 SC 1247 , (Mithilesh Kumari and another v. Prem Behari Khare), it has been held that the provisions contained in Section 4 of the Act were applicable to all pending suits and appeals, the said view has been overruled subsequently by the decision of the Supreme Court reported in AIR 1996 Supreme Court, 238, (R.Rajagopal Reddy (dead) by L.Rs. and others v. Padmini Chandrasekharan (dead) by L.Rs.). In the latter decision after considering the provisions of the Act and taking note of the earlier decision, it has been held that the suit filed prior to 19.5.1988 is not hit by the prohibition contained in Section 4(1) of the Act and similarly defence taken prior to 19.5.1988 in a pending suit would not be hit by the prohibition contained in Section 4(2) of the Act. This decision of the Supreme Court has subsequently been followed and amplified in the decision reported in AIR 1998 Supreme Court, 310 (Smt. Rebti Devi v. Ram Dutt and another). 11. This decision of the Supreme Court has subsequently been followed and amplified in the decision reported in AIR 1998 Supreme Court, 310 (Smt. Rebti Devi v. Ram Dutt and another). 11. In the instant case, the question arises for determination is as to if the defence relating to the benami transaction and the nature of property as such is available to be taken by the defendants so as to enforce any right banking upon the same against the person in whose name the property is held or against any other person. The plaint having been filed in the case on 15.10.1987, the defendant having entered appearance in the suit has first filed the written statement on 30.09.1988 specifically raising the defence at Para 12A that Bharat had purchased the property benami in the name of his wife Laxmi and thus was held benami by which date the provision of section 4 of the Act had already been in force. So as provided under section 4(2) of the Act, the defence based on any right in respect of any property held benami whether against the person in whose name the property is held or any other person was barred. However, in the facts and circumstances the matter does not culminate here being covered the entire path. The benamdar as is raised in the defence, i.e., Laxmi is none other than the wife of the so-called real owner as per the case projected by the defendant. As provided in section 3(2) of the Act, the prohibition for benami transaction and consequentially the penal provision do not get attracted in so far as the purchase of property by a husband in the name of his wife and it stands with a statutory presumption as such, unless the contrary is proved, obviously by the person who sets up the plea that husband had purchased the property benami in the name of wife or any other person claiming through him that the said property had not been purchased for the benefit of the wife and to benefit her alone. In other words, by virtue of above provision of law even though the property is purchased in the name of wife by her husband providing consideration and extending all other help in that regard to effectuate the purchase of the property, it would be presumed to be the property of the wife. In other words, by virtue of above provision of law even though the property is purchased in the name of wife by her husband providing consideration and extending all other help in that regard to effectuate the purchase of the property, it would be presumed to be the property of the wife. The doctrine of advancement as was not applicable to India has thus been made applicable in respect of the property purchased in the name of wife and the other one is unmarried daughter with which we are not concerned here. So, in the present case, we are not concerned at all with regard to the bar in raising a defence of benami as provided in section 4 of the Act. The matter now falls for decision with the presumption as aforesaid being made applicable so as to next find out whether the defendant has proved to the contrary or not, i.e., if the defendant has been able to dislodge the presumption by leading the evidence showing the surrounding circumstances emerging from evidence on record and all those attending factors standing to support the same. 12. For the aforesaid, the substantial question of law as framed in this appeal by order dated 25.02.2014 in my considered view does not stand for consideration so as to receive answer. In my opinion, the substantial question of law arises in the case is the following:- “Whether the property in question being presumed to be the property of Laxmi, wife of Bharat if has been proved to the contrary by the defendant that the said property had not been purchased for the benefit of Laxmi? 13. It is relevant to mention here that such particular type of benami transaction by a husband in the name of wife has been kept out of the purview of the penal provision which is normally attracted against a person entering into the benami transaction as provided in Section-3(3) of the Act. 13. It is relevant to mention here that such particular type of benami transaction by a husband in the name of wife has been kept out of the purview of the penal provision which is normally attracted against a person entering into the benami transaction as provided in Section-3(3) of the Act. In view of the case and counter case as projected by the parties, the statutory presumption as afore-mentioned when comes into play thus the presumption stands that the property is of Laxmi and even if for a moment it is said that it is assumed purchased by her husband in her name it has to be taken to be for her benefit and not anyone else unlike in cases of benami transaction of other type in any one else’s name. The basic concept of a benami transaction is that the person in whose name the property is purchased does not stand as the real beneficiary and by such transaction the said vendee as shown has never been intended to be in any way benefited and it is the person, who has so purchased in the name of that vendee remains as the real owner enjoying all the benefits putting the said vendee in the position of a name lender. By virtue of the statutory provision contained in section 3(2) of the Act, the concept of benami has been initially repelled in so far as the purchase of the property by the husband in the name of his wife is concerned as also with regard to the purchase in the name of unmarried daughter which is not our case. This presumption of course is rebuttable, which is evidenced from the word used in the said provision that “unless the contrary is proved.” So only on proof to the contrary when the presumption would stand rebutted, the case would fall within the purview and ambit of section 4(1) or 4(2) of the Act as the case may be. 14. This presumption of course is rebuttable, which is evidenced from the word used in the said provision that “unless the contrary is proved.” So only on proof to the contrary when the presumption would stand rebutted, the case would fall within the purview and ambit of section 4(1) or 4(2) of the Act as the case may be. 14. At this stage, it comes to my mind that in the case of purchase of a property by the husband in the name of his wife, let us say even in cases where the wife has absolutely no income of her own standing admitted or established and it has been so purchased with the entire contribution of the husband, yet in view of the special relationship of the husband whose better half is the wife, in case the husband purchases the property in the name of his wife, it has normally to be taken to have been so done to benefit the wife as the benefit which percolates from such a transaction in so far as the husband is concerned not wholly deprived of enjoying the same during subsistence of relationship. This is the real relationship that normally prevails in our society barring few aberrations and that our society expect from the husband and wife both in discharging their duty towards each other even from the Vedic days which can be well seen if we go through the ‘Slokas/Mantras’ which are chanted either during ‘Saptapadi’ or during the ‘marriage homom’ or even during performance of any rites in other caste/custom as those prevail in the line of what each step that the husband and wife take together round the sacred fire on the auspicious marriage altar and take the vow together in any other form. If we say for a moment especially in case of Hindus that the husband purchased the property in the name of wife not intending to benefit her but to keep her as merely a name lender his position in the society does not remain as a true husband discharging his duty towards his wife as also to the society in turn as per the vow, having the required morals and rather it invites stigma of immorality unless of course such kind of transaction is made for siphoning black money or money received from sources other than legal wherein the consideration may remain different. The present case concerns with the purchase of the property in the rural area and the persons also hail from the rural background. Thinking from another angle if such is the claim raised by the husband that he had merely purchased the property in the name of his wife never intending to benefit her and has not so allowed right from the very inception, the said claim, itself, invites another stigma that when a wife has all the right to enjoy the property of the husband staying together under one roof, the husband’s other half being the wife and the wife’s other half being the husband, as if the relationship of the husband and wife was merely an act of pretence thereby tainted with immorality thus is not real as is expected by the society and as is shown and there has been thus a total breach of the solemn promises that have been taken by the couple while entering into the marital tie as such. Therefore, in my considered view in a case of this nature where the Court is faced with the problem of solving as to whether it is a benami transaction or not, the source of consideration, the enjoyment of property etc. are hardly of any significance which are generally taken into consideration and come to heavily weigh in mind in case of deciding the question of benami purchase by one in the name of another without having relationship of husband wife. 15. Thus, now if we go to accept the claim of the defendant that Bharat, who is the husband of Laxmi in whose name the property admittedly had been purchased benami under registered sale deed, we are going to put a stigma upon Bharat who is no more in the world and this is running against a dead man which the law very much frowns upon and is in fact impermissible. Had it been a case during the lifetime of Bharat, the matter thus might have taken a different turn as he could have been heard before being visited with such stigma touching his position and status as well telling upon his morality. But that for my discussion stands foreclosed now. The lower appellate court at para-7 although has made elaborate discussion has not gone to decide this aspect and it has lost sight of this ground reality. But that for my discussion stands foreclosed now. The lower appellate court at para-7 although has made elaborate discussion has not gone to decide this aspect and it has lost sight of this ground reality. The trial court in deciding the issue relating to the plaintiff’s right, title and interest over the entire suit property has of course examining the evidence as is done in deciding any other case of benami transaction without thinking for a moment and treating the person, having above special relationship has held Bharat to be the real owner of the property. I wholly differ with the same in view of above discussion and for all the aforementioned reasons. Furthermore, for the aforesaid, the recital of the deed in question, i.e., Ext.2 finding indication about the same is of absolutely no relevance in the case in hand. In view of my forgoing discussion, the trial court proceeding to give much of emphasis upon those factors of source of consideration and possession in my considered view are unnecessary and unwarranted. The recording of the land in the revenue records with the factual setting of the case and other circumstances that the parties hail from rural background especially when it is not shown in evidence that Laxmi was an intelligent women having all such experience had knowingly allowed the same to be done by her husband and when it is not even there in evidence that she was having free movement and access during those days around the year 1960, those are not enough to conclude that by such purchase Bharat had not at all intended to benefit Laxmi. 16. Examining the facts and circumstances of the case in hand with the evidence on record, and judging the same through the legal prison, I hold that the defendant has failed to prove that such property standing in the name of Laxmi purchased under Ext.2 was actually the property of her husband-Bharat who was the real owner. In that view of the matter, Laxmi is held to be the owner of the property. The substantial question of law as above hereby receives the answer accordingly. Laxmi is said to have died after the year 1956 as has been held by the lower appellate court. In that view of the matter, Laxmi is held to be the owner of the property. The substantial question of law as above hereby receives the answer accordingly. Laxmi is said to have died after the year 1956 as has been held by the lower appellate court. This is found to have been so held by detail analysis of evidence on record which does not call for interference as no such perversity surfaces therein. Next it has been held by both the courts below that after the death of Laxmi, Bharat married Mani and through her four daughters namely, Maliati, Malli, Sebati and Ketaki were born which also firmly stands in view of evidence on record. So on the death of Laxmi the property was succeeded by Kampal and Bharat being class-I heir, each having half interest over the same. Kampal has sold the property to the plaintiff which is valid to the extent of his share and there is also no challenge to the same. Upon death of Bharat, his interest in the property comes to be succeeded by his son, four daughters and Mani. So each get 1/12th share over the same. Thus, Kampal’s share comes to 7/12th and share of Mani with four daughters in total to 5/12th, each having 1/12th share. The defendant having purchased the property from Janaki who had purchased it from Mani, Malli and Ketaki thus stands entitled to 3/12th share 17. Admittedly, there has been no partition of the entire property of Laxmi amongst the above successors by metes and bounds. In this present suit for declaration of right, title and interest, the prayer as laid by the plaintiff cannot thus be allowed as by said purchase the plaintiff cannot be said to have been clothed with the right in respect of the specific property as described in his sale deed (Ext.2). The extent of land as indicated in the sale deed shall stand adjusted within the share of Kampal, i.e., 7/12th as to that extent it is only valid. It is required to be carved out by allotment of the land accordingly in a regular partition when so takes place. The defendant’s purchase shall remain valid within the extent of 3/12th share which his vendors were having and not more. 18. It is required to be carved out by allotment of the land accordingly in a regular partition when so takes place. The defendant’s purchase shall remain valid within the extent of 3/12th share which his vendors were having and not more. 18. Although it being a suit for declaration of possession yet there has not been advancement of an alternative prayer for partition which is to be done by metes and bounds so as to enable the parties to get their respective extent of purchased lands in that exercise. When endeavour is made here in proceeding to do so in exercise of power u/o-7, rule-7 of the Code, the unfortunate part which stands as the legal blockade is that the two other daughters, Malati and Sebati are not parties to the suit when admittedly they have not parted with their interest over the land in favour of either party the defendant has also not projected a case that on their behalf their mother and two sisters with their consent or knowledge had so sold or otherwise they have abandoned their right. Therefore, legal hurdle clearly stands in the way of passing a preliminary decree for partition of the property with direction for adjustment of the land purchased by the parties to the extent of the shares of their respective vendors as per the entitlement as aforesaid. The factual setting of the case Badan Podh vrs-Fagu Meher and others, 1958(XXV) CLT, 514 as cited by the learned counsel for the appellant in course of his submission and in support of urging for passing a preliminary decree as above, are completely different where in the Court had not been faced with the legal hurdles like the one case as pointed out above and since in that case there were no other legal impediment, the Court had passed the preliminary decree for partition in that suit for declaration and possession. But for the legal hurdles as stated adoption of that course would not be permissible in the eye of law. Thus the parties with all the above findings if are so advised can get their further remedy worked out in a duly constituted suit in accordance with law. 19. In the upshot of above discussion, this court finds no alternative but no dismiss the appeal. The suit is accordingly held liable to be dismissed with the observations as stated hereinbefore. Thus the parties with all the above findings if are so advised can get their further remedy worked out in a duly constituted suit in accordance with law. 19. In the upshot of above discussion, this court finds no alternative but no dismiss the appeal. The suit is accordingly held liable to be dismissed with the observations as stated hereinbefore. There shall however be no order as to cost.