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2020 DIGILAW 283 (CAL)

Priti Ranjan Gupta v. Maya Gupta, Since Deceased

2020-02-26

BIBEK CHAUDHURI

body2020
JUDGMENT Bibek Chaudhuri, J. - Whether a registered Kobala dated 11th June, 1957 executed by one Kusum Kumari Gupta, original plaintiff No.3, since deceased in favour of one Maya Gupta is a Benami transaction or not and even assuming that the said transaction was a Benami transaction, whether a suit for declaration to such effect is barred under Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 is a substantial question of law involved in the instant appeal. 2. Now, the facts leading to the filing of the instant appeal. The case of the plaintiffs is that one Nibaran Chandra Gupta, predecessor-in-interest of the plaintiffs and proforma defendant Nos. 2 to 9 was the recorded owner of the suit property. Nibaran died on 16th January, 1957 leaving behind the plaintiffs and proforma defendants as his legal heirs and representatives. The principal defendant Smt. Maya Gupta is the brother's daughter of the predecessor-in-interest of the plaintiffs. They were originally residing in Burma. Sometimes in 1950 Nibaran Chandra Gupta with his family members came to India and started residing in the suit property. He used to maintain his livelihood by carrying on some business. The brother of Nibaran Chandra Gupta namely Basanta Kumar Gupta and his wife, the principal defendant with other family members subsequently came to India from Burma. After death of Nibaran Chandra in the year 1957, his widow became apprehensive that the possible debtors of the said Nibaran Chandra might grab the suit property as creditor. So, she consulted her well wishers and decided to execute registered deeds of sale in favour of Smt. Maya Gupta to protect the suit property. Accordingly, on 11th June, 1957 the widow of Nibaran Chandra executed and registered two deeds of sale in respect of the suit property in favour of Maya Gupta. However, the said two deeds were out and out Benami transactions. No consideration money was paid by the purchaser to the vendor. All along the deeds of sale were in custody of the vendor, i.e., the widow of Nibaran Chandra. She all along paid revenue taxes in favour of the suit property. Electricity connection stood in the name of the said Kusum Kumari Gupta, widow of Nibaran Chandra. Thus, the deeds of sale dated 11th June, 1957 was merely a paper transaction and no interest was passed upon the vendee i.e. Smt. Maya Gupta. She all along paid revenue taxes in favour of the suit property. Electricity connection stood in the name of the said Kusum Kumari Gupta, widow of Nibaran Chandra. Thus, the deeds of sale dated 11th June, 1957 was merely a paper transaction and no interest was passed upon the vendee i.e. Smt. Maya Gupta. Moreover, in order to safeguard the interest of the plaintiff, the defendant No.1 executed Ekrarnama on 10th November, 1957 in favour of the plaintiffs admitting therein that the said two Kobalas were sham Benami transactions and no consideration was passed thereunder and even the registration costs were also borne by the said Kusum Kumari. It is further stated by the plaintiffs that there were six tenants at the time of institution of the suit in respect of different portions of the suit property and Kusum Kumari all along used to collect rent from the said tenants. Defendant No.1 and her husband along with their children were allowed to reside in a room in the suit property by Nibaran Chandra as licensees. However, after the death of Nibaran Chandra and after execution of the deeds of sale the defendant No.1 exposed her greed to grab the suit property and filed an application to mutate her name with Kanchrapara Municipality. However, the said application was rejected. Subsequently, Kusum Kumari requested the defendant No.1 to execute a deed of release in respect of the suit property in favour of her but the defendant refused to execute such deed. As a result, the plaintiffs were compelled to institute a suit for declaration that the said two Kobalas dated 11th June, 1957 executed by the plaintiff and in favour of the defendant No.1 are sham Benami documents and no consideration was passed thereunder and no interest was ever intended to be credited in favour of the defendant No.1 and consequential relief of permanent injunction. 3. The defendants contested the said suit by filing written statement denying all material allegations made out in the said plaint. Specific case of the defendant No.1 is that the Kobalas dated 11th June, 1957 in favour of her were executed according to law. She paid full consideration money to the vendors and the said documents are not Benami transactions as alleged by the plaintiffs. Specific case of the defendant No.1 is that the Kobalas dated 11th June, 1957 in favour of her were executed according to law. She paid full consideration money to the vendors and the said documents are not Benami transactions as alleged by the plaintiffs. After execution of the said two Kobalas the defendant No.1 in good faith entrusted the widow of Nibaran Chandra to keep them in her custody. Subsequently when she demanded the said two deeds, the widow of Nibaran Chandra flatly refused to hand over the said deeds. So far as the Ekrarnama is concerned, specific case of the defendant No.1 is that Kusum Kumari Devi obtained some signatures on blank papers of the defendant No.1 stating her that her signature on blank papers are required for the purpose of mutating her name in the local municipality. Subsequently the said signed blank papers were converted to an Ekrarnama. The defendant No.1 never executed any Ekrarnama voluntarily in favour of the plaintiffs as alleged by them. According to the defendant No.1 the ownership of the property was transferred in favour of her by executing two Kobalas dated 11th June, 1957. After a long lapse of about 13 years, the plaintiff cannot claim that the said transactions were Benami transactions and accordingly, she prayed for dismissal of the suit. 4. On the basis of the above pleadings, the learned trial Judge framed as many as seven issues. Parties led evidence in support of their respective cases and ultimately on the basis of evidence on record, both oral and documentary as well as submission made by the learned advocates for the parties, the learned trial Judge decreed the suit on contest against the defendant No.1 and ex parte without cost against others. The Kobalas dated 11th June, 1957 executed by the plaintiffs in favour of the defendant No.1 in respect of the suit property were declared as sham Benami documents. It was further declared that the plaintiffs are real owners in respect of the suit properties and by virtue of the said two Kobalas the defendant No.1 did not acquire any right, title and interest over the same. 5. It was further declared that the plaintiffs are real owners in respect of the suit properties and by virtue of the said two Kobalas the defendant No.1 did not acquire any right, title and interest over the same. 5. The defendant No.1 assailed the said judgment and decree passed by the learned Subordinate Judge, 10th Court at Alipore on 28th February, 1985 in Title Suit No.11 of 1970 by filing an appeal before the learned District Judge, South 24 Parganas at Alipore which was registered as Title Appeal No.349 of 1985. The said appeal was subsequently transferred to the Court of the learned 6th Additional District Judge at Alipore and by a judgment dated 15th April, 1989 the learned Judge in First Appellate Court held that the suit filed by the plaintiffs is not maintainable in view of the provision contained in Section 4 (1) of the Benami Transaction (Prohibition) Act, 1988. In order to arrive at such decision the learned Judge in First Appellate Court relied on a Division Bench decision of this Court reported in (In re: Urmila Bala Dasi versus Probodh Chandra Ghosh & Ors., 1989 1 CalLJ 1 ). The judgment passed by the learned First Appellate Court prompted the plaintiffs to prefer the instant appeal before this Court. It is found from the record that the instant appeal was admitted by the Division Bench of this Court on 15th May, 1995 by passing the following order. "On being mentioned this is taken out of turn on the ground of urgency. We have heard Mr. Saha in support of the Case. In view of the decision of the Apex Court in (1995) 2 S.C.C.630, there is substance of Law in the present appeal, and the appeal, therefore stands admitted. Call for the records and issue the usual notices." 6. In view of the observations made in paragraph 3 of the above quoted order, substantial question of law has been formulated at the time of hearing of the instant appeal. 7. It is submitted on behalf of the appellants that the learned trial Judge framed as many as six issues and discussed the issues separately. Amongst the said issues, issue No.4 is the most important and relevant issue. The said issue is the following. "Are the Kobalas dated 11.06.1957 in respect of the suit property sham Benami transaction?" 8. According to Mr. Amongst the said issues, issue No.4 is the most important and relevant issue. The said issue is the following. "Are the Kobalas dated 11.06.1957 in respect of the suit property sham Benami transaction?" 8. According to Mr. Debasis Roy, learned advocate for the appellants who is ably assisted by Mr. Sibasis Ghosh, learned advocate, issue No.4 is the material issue which was discussed at length by the trial Judge and the issue was answered in favour of the plaintiffs. The defendant/respondent did not agitate the said issue. In the first appeal no cross-appeal or cross-objection was also filed by the respondent challenging the finding of the said issue. Therefore, at this stage the respondent cannot challenge the factual finding of the learned trial Court in respect of the finding that the said two kobalas are Benami transactions. 9. Only the issue for which the First Appeal was allowed and the judgment and decree of the learned trial Judge was set aside is that in view of Section 4 (1) of the Benami Transaction (Prohibition) Act, 1988, the suit instituted in the year 1970 is not maintainable. While arriving at such decision, the learned Judge in First Appellate Court relied on the decision of this Court in the case of Urmila Bala Dasi (supra). It was held by the Division Bench of this Court in Urmila Bala Dasi (supra) that Section 4 of the Benami Transaction (Prohibition), Act, 1988 has retrospective effect and it is applicable also in the pending suit. 10. It is submitted by Mr. Roy that the judgment delivered by the Division Bench in the case of Urmila Bala Dasi (supra) no longer is a good law in view of the Hon'ble Supreme Court's decision in R.Rajagopal Reddy and Ors. (Dead) by LRS. and Ors. Vs. Padmini Chandrasekharan (Dead) by LRS., 1995 2 SCC 630 . It is clearly held in the said decision that the Benami Transactions (Prohibition) Act, 1988 was enacted to efface the then existing right of the real owners of properties held by others in Benami. Such an act was not given any retrospective effect by the legislature. and Ors. Vs. Padmini Chandrasekharan (Dead) by LRS., 1995 2 SCC 630 . It is clearly held in the said decision that the Benami Transactions (Prohibition) Act, 1988 was enacted to efface the then existing right of the real owners of properties held by others in Benami. Such an act was not given any retrospective effect by the legislature. In this respect, clear legislation is seeking from the words "no such claim, suit or action shall lie" in Section 4(1) meaning thereby that in such suit, claim or action shall be permitted to be filed or entertained or admitted by any Court for seeking such relief after coming into force of Section 4(1). The word "lie" in connection with the suit, claim or action having not been defined by the act, going by the dictionary meaning, it would mean that such suit, claim or action to get any property declared Benami will not be admitted on behalf of such plaintiff or applicant against the defendant concerned in whose name the property is held on and from the date on which this prohibition against the entertaining of such suits comes into force. The view that Section 4(1) would apply even to such pending suits which are already filed and entertained prior to the date when the section came into force and which has the effect of destroying the then existing right of plaintiff in connection with the suit property cannot be sustained in the face of the clear language of Section 4(1) of the said Act. Thus the Hon'ble Supreme Court held that operation of Benami Transactions (Prohibition) Act, 1988 is not retrospective and prospective. On the same point, Mr. Roy further refers to the following decisions of the Hon'ble Supreme Court :- (i) C. Gangacharan V. C. Narayanan, 2000 1 SCC 459 ; (ii) Samittri Devi & Anr. V. Sampuran Singh & Anr., 2011 AIR(SC) 773 . 11. Thus, it is submitted by Mr. Roy that the finding made by the learned Judge in the First Appellate Court holding inter alia that the suit was not maintainable cannot be sustained in view of the decisions of the Hon'ble Supreme Court as quoted above and accordingly, the instant appeal should be allowed setting aside the judgment passed by the First Appellate Court. 12. Roy that the finding made by the learned Judge in the First Appellate Court holding inter alia that the suit was not maintainable cannot be sustained in view of the decisions of the Hon'ble Supreme Court as quoted above and accordingly, the instant appeal should be allowed setting aside the judgment passed by the First Appellate Court. 12. Mr.Piush Chatturvedi, learned Advocate on behalf of the respondents, on the other hand submits that specific case of the respondents was that after the death of Nibaran Chandra Gupta, his widow for herself and on behalf of her minor children transferred the suit property in favour of Maya Gupta, predecessor-in-interest of the present respondents by executing two deeds of sale dated 11th June, 1957. Both the deeds were duly registered in the recital of both the deeds. It was specifically stated that after the death of Nibaran Chandra Gupta, his widow was facing financial hardship to maintain her family and also her children. Therefore, she was in need of money and Maya Gupta, agreed to purchase the suit property at a consideration price of Rs.12,000/-. Therefore, the recital of the said two deeds do not support the case of the appellants to the effect that Kusum Kumari Gupta, the vendor of Maya was comprehensive of the creditors of her husband and created some deed of sale in favour of Maya Rani Gupta. It is further urged by the learned Advocate for the respondents that the original respondent Maya Rani Gupta clearly pleaded in her written statement that Kusum Kumari obtained some signatures of Maya on some blank papers for the purpose of mutation of respondent's name in respect of the suit property in the record of local Municipality and the said documents were converted to Ekrarnama. The original defendant never executed any Ekrarnama in favour of her vendor. 13. It is also submitted by Mr. Chatturvedi that the original defendant pleaded that she brought a sum of Rs.4,000/- when she left Burma with her husband. Remaining sum of Rs.8,000/- was given by her paternal uncle Jasoda Kumar Dey to purchase the suit property. 14. The original defendant never executed any Ekrarnama in favour of her vendor. 13. It is also submitted by Mr. Chatturvedi that the original defendant pleaded that she brought a sum of Rs.4,000/- when she left Burma with her husband. Remaining sum of Rs.8,000/- was given by her paternal uncle Jasoda Kumar Dey to purchase the suit property. 14. Mr.Chaturbedi submits that the following circumstances can be taken into consideration to determine the nature of a transaction whether such transaction is an out and out sale or a Benami transaction: - (i) the source of which the purchase money came; (ii) the nature and possession of the property, after the purchase; (iii) motive, if any, for giving transaction a Benami colour; (iv) the possession of the parties and the relationship, if any, between the claimant and the alleged Benamidar; (v) the custody of the title deeds after sale; (vi) Conduct of the parties concerned in dealing with the property after sale. 15. It is submitted by Mr. Chatturvedi that all the above-mentioned circumstances are essentially question of fact. The learned Judge in First Appellate Court ought to have dealt with the said question of fact agitated by the respondent in his memorandum of appeal while without deciding the appeal on the question of applicability of Section 4 of the Benami Transaction Prohibition Act. In support of his contention, he refers to a decision of the Hon'ble Supreme Court in the case of Santosh Hazari Vs. Porushottam Tiwari (Dead) by LRS, 2001 3 SCC 179 . Mr. Chatturvedi specially relies on Paragraph 12 of the aforesaid judgment. It is held by the Hon'ble Supreme Court in the said report that the phrase "substantial question of law" means "question of law" of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction to technical; of no substance or consequence, or academic merely. It was further held in the said report that the High Court is not bound to confine itself to deal in only with the question initially formulated by it as substantial question of law. High Court may hear the appeal on any other such questions assailing as it is satisfied that the case involves the question and records its reasons for such satisfaction. 16. High Court may hear the appeal on any other such questions assailing as it is satisfied that the case involves the question and records its reasons for such satisfaction. 16. The principal laid down in Santosh Hazari (supra) reiterates the ageold precedent laid down in (i) Khitish Chandra Purkait vs. Santosh Kumar Purkait, 1997 5 SCC 438 ; (ii) Panchugopal Barua Vs. Umesh Chandra Goswami, 1997 4 SCC 413 ; (iii) Kondiba Dagadu Kadam Vs. Savitkibai Gujar Sopan, 1999 3 SCC 722 . 17. In this regard I may be permitted to add that Sub-section 5 of Section 100 gives the Court who hears a second appeal, the power to formulate any other substantial questions of law, not formulated at the time of admission of the appeal, if it is satisfied that the case involves such questions. 18. On this score, Mr. Chatturvedi frankly admits that determination of circumstances to hold if a transaction is a Benami transaction or not are questions of fact. In second appeal, this Court cannot look into the said questions of fact. In other words, evidence on record on factual aspects cannot be re-appreciated by the Second Appellate Court except on the grounds of non-consideration of material evidence or consideration of certain fact in absence of any evidence on such points. In both the cases, the judgment appealed against suffers from perversity and such perversity can be considered by the Second Appellate Court as substantial questions of law. 19. Coming to the instant case, it is submitted by Mr. Chatturvedi that the learned Judge in First Appellate Court which is the last Court of fact and law, save and except the substantial questions of law did not consider the circumstances as to the motive of the parties to execute the deeds of sale in favour of Maya Gupta, payment of consideration money by Maya Gupta to Kusum Kumari, the circumstance that both the vendor and vendee were close relatives and considering their relationship, no suspicion can be raised on Maya Gupta keeping the deeds of sale under the custody of her vendor Kusum Kumari. 20. Thus, it is argued by Mr. 20. Thus, it is argued by Mr. Chatturvedi that this is a fit case where the First Appellate Court should be directed to deal with the factual issues raised by the respondents as appellants before the First Appellant Court on the circumstances to find out as to whether the transactions dated 11th June, 1957 are out and out sale or Benami transaction. Thus, the learned Advocate for the respondents has urged this Court to send the First Appeal back on remand for decision on factual aspects of the matter. 21. It is further contended by Mr. Chatturvedi that the learned Judge in First Appellate Court failed to consider as to whether the suit was barred under the Proviso to Section 34 of the Specific Relief Act. Admittedly, the respondents are in possession in respect of one room in the suit property and until and unless recovery of possession is prayed for by the appellants, the suit for declaration is barred for failure on the part of the appellants to seek relief for recovery of possession. 22. Mr. Chatturvedi has also criticized the judgment of the First Appellate Court submitting, inter alia, that both the Trial Court and the First Appellate Court failed to appreciate that the suit filed by the appellants was hopelessly barred by limitation because the deed of sale in favour of Maya Gupta was executed in the year 1957 and the appellants filed the suit in 1970. In support of his contention, Mr. Chatturvedi refers to Article 58 of the Limitation Act where the period of limitation to obtain a declaration is three years from the date when the right to sue is first accrues. 23. Referring to a decision of the Hon'ble Supreme Court in Binapani Paul vs. Pratima Ghosh & Ors., 2007 6 SCC 100 , Mr. Chatturvedi submits that purchase of property by wife out of her streedhan property cannot be said to be a Benami transaction. Source of money, although a relevant consideration, is not a determinative of the question as to whether a transaction is Benami transaction or not. The original defendant stated in her evidence that while she was returning from Burma, she brought Rs.4,000/- with her and her uncle gave a sum of Rs.8,000/- to purchase the suit property. The learned Trial Judge disbelieved the said evidence without assigning any reason. The original defendant stated in her evidence that while she was returning from Burma, she brought Rs.4,000/- with her and her uncle gave a sum of Rs.8,000/- to purchase the suit property. The learned Trial Judge disbelieved the said evidence without assigning any reason. The learned First Appellate Court did not reappreciate the evidence on this score. Therefore, the judgement of the First Appellate Court should be sent back on remand for consideration of the circumstances determining the question as to whether a transaction is a Benami transaction or not. Mr. Chatturvedi further refers to an unreported decision of the Division Bench of this Court in APO No.8 of 2019 with W.P. No.687 of 2017 (M/s. Ganpati Dealcom Private Limited Vs. Union of India & Anr.), judgment delivered on 12th December, 2019 wherein it is held that Section 3, 5 and 8 of the amending Act of Benami Transactions Prohibition Act is prospective in operation. Against the said judgment, the Union of India has preferred an appeal before the Hon'ble Supreme Court being Special Leave to Appeal No.2784 of 2020 and the order passed by the Division Bench of this Court in so far as it holds that 2006 amendment of the Benami Tansactions (Prohibition) Act, 1988 was prospective in nature has been stayed. In view of such circumstances, it is urged by Mr. Chatturvedi that the appeal should be sent back on remand to the First Appellate Court. 24. It is already mentioned hereinabove that the substantial question of law involved in the appeal is whether the learned First Appellate Court substantially erred in law in holding that Section 4 of the Benami Transactions (Prohibition) Act, 1988 is retrospective or prospective in operation. No other question of law is formulated by the Division Bench of this Court while admitting the appeal under Order XLI Rule 11 of the Code of Civil Procedure. It has also not been urged on behalf of the respondents that the instant appeal ought to be heard on any other substantial question of law, not formulated by the Division Bench at the time of admission of appeal. In other words, the respondents have not made any prayer to formulate additional substantial question of law on which the instant appeal ought to be heard. 25. In other words, the respondents have not made any prayer to formulate additional substantial question of law on which the instant appeal ought to be heard. 25. Therefore, this Court has no other alternative but to decide the substantial question of law formulated by the Division Bench of this Court by its order dated 15th May, 1995. Mr. Chatturvedi has strenuously argued that the First Appeal ought to be sent back on remand to decide the factual issues on the question as to whether the transactions dated 11th June, 1957 were Benami transaction or not. 26. Order XLI Rule 22 of the Code of Civil Procedure authorizes any respondent to object to decree as if he had preferred a separate appeal. Order XLI Rule 22 Reads thus:- "22. Upon hearing respondent may object to decree as if he had preferred a separate appeal.-(1) Any respondent, though he may not have appealed from any part of the decree, may not only support the decree [but may also state that the finding against him in the Court below in respect of any issue ought to have been in his favour; and may also take any cross-objection] to the decree which he could have taken by way of appeal provided he has filed such objection in the Appellant Court within one month from the date of service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the Appellate Court may see fit to allow. [Explanation.- A respondent aggrieved by a finding of the Court in the judgment on which the decree appealed against is based may, under this rule, file crossobjection in respect of the decree in so far as it is based on that finding, notwithstanding that by reason of the decision of the Court on any other finding which is sufficient for the decision of the suit, the decree, is, wholly or in part, in favour of that respondent.] (2) Form of objection and provisions applicable thereto.- Such cross-objection shall be in the form of a memorandum, and the provisions of rule 1, so far as they relate to the form and contents of the memorandum of appeal, shall apply thereto. (4) Where, in any case in which any respondent has under this rule filed a memorandum of objection, the original appeal is withdrawn or is dismissed for default, the objection so filed may nevertheless be heard and determined after such notice to the other parties as the Court thinks fit. (5) The provisions relating to appeals by indigent persons shall, so far as they can be made applicable, apply to an objection under this rule." 27. Thus the respondents had ample power to file a cross-objection against the judgement passed by the First Appellate Court even if he supports the finding of the First Appellate Court to the effect that the provision of Section 4 of the Benami Transactions (Prohibition) Act, 1988 was prospective in operation. When the respondents failed to take any such action, this Court is not in a position to consider the factual grievances raised by Mr. Chatturvedi on behalf of the respondents against the finding of fact made by the learned Trial Court. 28. This Court, however, is of the view that the Court can always take into consideration if a suit is barred by limitation or not. Because, it is the duty of the Court under Section 3 of the Limitation Act to come to a positive finding as to whether a suit is instituted within the period of limitation or after the expiry of the same in view of clear and unambiguous dictum of Section 3 of the Limitation Act. 29. It is vehemently urged by Mr. Chatturvedi that the deeds of sale in question were executed in the year 1957 in favour of Maya Gupta by Kusum Kumari Gupta. The instant suit was filed in the year 1970 under Article 58 of the Limitation Act, the period of limitation in a declaratory suit is three years from the date when the right to sue accrues. According to Mr. Chatturvedi, in the instant case, the right to sue accrued after execution of the deeds of sale and the appellants ought to have filed a suit within three years thereafter. Thus, both the courts below failed to consider that the suit is hopelessly barred by limitation. 30. I am not in a position to accept such argument made by Mr. Chatturvedi. Thus, both the courts below failed to consider that the suit is hopelessly barred by limitation. 30. I am not in a position to accept such argument made by Mr. Chatturvedi. In order to attract Article 58 of the Limitation Act, there must be accrual of right to sue for the plaintiff, an infringement or at least a clear and unambiguous threat to infringe that right by the defendant should happen. So far as the right of the plaintiff is not infringed or there is no positive and overt act on the part of the defendant to infringe the right of the plaintiff, there would not be accrual of the right to sue. 31. In the instant case, it is specifically pleaded by the plaintiffs/appellants that the original defendant Smt. Maya Gupta made an application in the local Municipality in the year 1970 to mutate her name in respect of the suit property. The said application was rejected by the Municipality on 22nd January, 1970. Immediately thereafter, the plaintiffs filed the suit. Thus, the Trial Court correctly held that right of the plaintiff to sue accrued only when the defendant tried to infringe the plaintiffs' title over the suit property on the basis of the said two deeds. 32. I have already held that this Court cannot re-appreciate the evidence on the factual aspect of motive of the parties to execute such deeds, accumulation of consideration price and payment of the same and other relevant factors necessary to hold a transaction Benami or not. Suffice it to say that the learned Trial Judge in great detail held that though the purported deeds of sale were executed on 11th June, 1957, all along the said deeds were in custody of the vendor. The suit property was recorded in the record of Kanchrapara Municipality in the name of the vendor. The vendor used to collect rent from the tenants. The electricity in the suit property stood in the name of the vendor. The vendor performed all acts incidental to ownership of the suit property in spite of execution of the said two deeds of sale dated 11th June, 1957. The vendor used to collect rent from the tenants. The electricity in the suit property stood in the name of the vendor. The vendor performed all acts incidental to ownership of the suit property in spite of execution of the said two deeds of sale dated 11th June, 1957. At the risk of repetition, I like to record once again that all such factual circumstances are recorded by me only to show that the learned Trial Judge had dealt with the issues of fact raised by the respondents and again such finding, the respondents have not filed any cross-objection before the learned First Appellate Court. 33. The plaintiffs filed the suit for declaration that the deeds of sale dated 11th June, 1957 are Benami transaction. They pleaded in the plaint that they are in possession of the suit property. The defendant No.1 Smt. Maya Gupta is in possession of one room of the suit property as a licensee. It is, of course, an executive decision of the appellants as to whether they would allow the respondents to occupy one room in the suit property as a licensee or they would recover possession of the suit property by revocation of license. Under such circumstances, the suit cannot be said to be barred under the Proviso of Section 34 of the Specific Relief Act. Moreover, no such question was raised as the substantial question of law by the respondents in the instant appeal. So this Court has no scope to decide such question in the instant appeal. 34. On the question of law formulated in the instant appeal, I have no other alternative but to hold that the Hon'ble Supreme court in R. Rajagopal Reddy (supra) held that Section 4(1) of the Benami Transactions (Prohibition) Act, 1988 is not retrospective in operation and does not apply to pending suits already filed and entertained prior to coming into force in Section 4. 35. For the reasons stated above, substantial question of law is necessary in favour of the appellants. Accordingly, the appeal is allowed on contest without costs. 36. The judgment and decree of dismissal of Title Appeal No.349 of 1985 is set aside and the judgment and decree passed in Title Suit No. 11 of 1970 is restored. 37. Let a copy of this Judgment be sent to the Court below along with lower court record. 38. Accordingly, the appeal is allowed on contest without costs. 36. The judgment and decree of dismissal of Title Appeal No.349 of 1985 is set aside and the judgment and decree passed in Title Suit No. 11 of 1970 is restored. 37. Let a copy of this Judgment be sent to the Court below along with lower court record. 38. Urgent photostat copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.