JUDGMENT 1. This first appeal under Section 96 CPC has been filed against judgment and decree dated 3-2-1992 passed by Additional District Judge No.5, Jaipur City, Jaipur in Suit No.12/1981, whereby and whereunder the suit for declaration and injunction, in relation to Rs.24,000/- deposited in saving account of defendant No.1- appellant in post office, filed by Ganpatlal (original plaintiff, since deceased) has been decreed in favour of the plaintiff and against defendant No.1 appellant. The following decree has been passed:- vr% oknh dk okn izfroknhx.k ds fo:) e; [kpkZ fMØh fd;k tkrk gS vkSj ;g ?kksf"kr fd;k tkrk gS fd v'kksduxj iksLV vkWfQl ds cpr [kkrk la324030 esa tek jkf'k ds okLrfod ekfyd oknhx.k gS ,oa LFkk;h fu"ks/kkKk tkjh dj izfroknh laŒ2 dks funsZ'k fn;s tkrs gS fd ;g jkf'k izfroknh laŒ1 ehuk{kh dks Hkqxrku ugh dj rFkk izfroknh laŒ1 mDr jkf'k bl [kkrs ls ugh ysA 2. The facts of the case are that the original plaintiff filed a suit for declaration with permanent injunction and prayed that amount Rs.24,000/- was deposited in post office, Ashok Nagar Jaipur in Saving Bank Account No.324030, in the name of his daughter, defendant Minakshi. The plaintiff be declared the real owner of such deposited amount in account of defendant No.1 and the defendant No.1 be restrained from withdrawing the said amount as well as defendant No.2 be injuncted not to disburse the amount to defendant No.1. During pendency of suit, the original plaintiff died and his legal representatives were taken on record, to pursue the suit proceedings, without any objection of defendants. Case of plaintiff was that he served as Deputy Director in the office of Deputy Director of Accounts (Postal) and retired on 31-3- 1980. As he received General Provision Fund and Gratuity amount Rs.56,369.50, the plaintiff on 7-4-1980 deposited Rs.24,000/- in account No.324030, Rs.24,500/- in account No.535453 and Rs.5,500/- in account No.531046. The account No.324030 belonging to his daughter defendant Minakshi; It was pleaded that at that point of time saving bank account was having limit of Rs.25,000/-, therefore the plaintiff deposited Rs.24,000/- in the account of his daughter. The deposit slip for the same was filled up by plaintiff himself. The said amount was deposited in his daughter's account as benamidar. At the relevant time the defendant daughter was unmarried, studying and was not having any source of income. The deposit slip for the same was filled up by plaintiff himself. The said amount was deposited in his daughter's account as benamidar. At the relevant time the defendant daughter was unmarried, studying and was not having any source of income. All expenses of the defendant were being born by plaintiff and on 30-7-1980 the defendant herself gave authority letter to plaintiff for withdrawing Rs.24,000/- from her account. Subsequently, the plaintiff further pleaded that his daughter had entered into marriage with a person of other caste against wishes of the family and now therefore, she has turned hostile against the plaintiff father and wanted to usurp the amount deposited by plaintiff in her account. Therefore, the suit was filed on 2-3-1981. 3. On issuing notice, the defendant No.1 filed written statement and denied the facts of plaint. She stated that the amount in issue was deposited by her in her bank account. She stated that on 1-4- 1980 her husband gave her Rs.25,000/-, out of which Rs.24,000/- was deposited by her in account. There is no benami amount deposited by her father. She stated that her family members were pressurizing her to marry in a settled family, which fact was told to her husband then he gave Rs.25,000/- to her out of which Rs.24,000/- deposited in her account and Rs.1,000/- were kept for daily needs. She left the house of her father on 16-5-1980 and married with Shankar Singh on 18-5-1980. Therefore, her father the plaintiff initiated criminal proceedings. It was stated that on 23-5-1980 the plaintiff and his son obtained custody of defendant and also obtained signatures on withdrawal form against her will. She did not give any authority letter to plaintiff and prayed to dismiss the suit. 4. The defendant No.2- Department of Post Office, filed written statement and stated that account No.324030 belongs to defendant No.1 Minakshi Devi in which Rs.24,000/- had been deposited. Amounts were deposited in other accounts also. It was informed to the defendant, vide letter dated 26-5-1980 written by account holder minakshi Devi that on 23-5-1980 her brother- Suresh Garg had obtained her signatures forcefully and against her wish on two withdrawal forms, therefore amount be not disbursed to anyone. It was stated that from the account holder of defendant No.1 Minakshi, no other person can withdraw the deposited amount against wish of account holder. It was stated that from the account holder of defendant No.1 Minakshi, no other person can withdraw the deposited amount against wish of account holder. Plaintiff submitted rejoinder and clarified that all her educational expenses were bore by plaintiff and amount of Rs.24,000/- was deposited in her post office account by plaintiff, which is money of plaintiff, out of his retiral benefit fund, and therefore, defendant No.1 cannot withdraw such amount. 5. On the basis of pleadings of parties trial court framed six issues: First, Whether plaintiff deposited Rs.24,000/- in the account of her daughter defendant No.1, as benami transaction in Post Office account on 7-4-1980? Second, Whether plaintiff is entitled to get the deposited amount of Rs.24,000/- along with interest, deposited as benami in the name of defendant No.1? Third, Whether Section 23(2) of the Court Fees and Suit Valuation Act is not applicable and therefore court fees paid is insufficient? Fourth, Whether the court fee regarding injunction has neither assessed nor paid, therefore suit is liable to be dismissed? Fifth, Whether no cause of arose to plaintiff for filing the suit, therefore the suit deserves to be dismissed? Sixth, Relief? 6. Issues No.3&4 being legal issues were considered first, and vide order dated 22-9-1986 and the plaintiff was ordered to pay deficient court fee within fifteen days, which he paid, and thus the issue No.3 decided. The issue No.4, is relating to ancillary relief and after payment of court fee on the principal relief of declaration for Rs.24,000/-, the injunction relief was treated as incidental and therefore was decided accordingly against plaintiff. 7. Plaintiff examined himself as Pw.1 and exhibited seven documents. Defendants examined themselves as Dw.1 Minakshi Devi and Dw.2 Om Prakash Sharma. 8. The trial court considered oral and documentary evidence led by both parties. Regarding issue No.1, plaintiff in his statement stated that on 7-4-1980 he received from GPO Jaipur Rs.58,369.50, from GPF and DCR gratuity account as he was to retire. He exhibited Ex.7 to prove the amount received from department, out of which he deposited Rs.24,000/- in account No.324030, belonging to his daughter defendant No.1, Rs.24,500/- in account No.535453 belong to his son and Rs.5,500/- in his own account No.531046. Later on he also deposited cheque of Rs.14,000/- in his own account; He could not have deposited the whole amount in his account. Later on he also deposited cheque of Rs.14,000/- in his own account; He could not have deposited the whole amount in his account. Reason for depositing amounts in different accounts was that there was upper limit of Rs.25,000/- for depositing amounts in saving account. He also stated that account No.324030 although belonged to his daughter defendant Minakshi, but at the relevant time she was unmarried, studying and was not having any source of income. Plaintiff himself was possessing pass book of her account and bored all expenses of her studies. He also exhibited Ex.4 for depositing fees, and her character certificate Ex.3. Defendant No.1 examined herself as Dw.1 and stated that she was having affairs with Shankar Singh Yadav and wanted to marry with him. Her father stated that financial condition of Shankar Singh was not good and unless he deposits Rs.24,000/- in the account of defendant then he will consider for their marriage. Thereupon Shankar Singh after taking amount from his friend, on 1-4-1980 gave her Rs.25,000/-, out of which she deposited Rs.24,000/- in post office account and keeping Rs.1000/- with her for personal need. She stated that all her study expenses were born by her husband Shankar Singh Yadav. Dw.2 Om Prakash Sharma, who said to be friend of Shankar Singh Yadav, stated that Shankar Singh borrowed Rs.2,000/- from him for the purpose of marriage in March/ April, 1980, and which amount was still due. He admitted that Shankar Singh was earning more than him. He denied to have known any other source of income of Shankar Singh. He also admitted that there was no source of income of Minakshi. Shankar Singh Yadav did not appear as witness. 9. Appreciating oral and documentary evidence of both plaintiff and defendant the trial court concluded that on examination of comparative evidence on record, it seems to be right that plaintiff deposited Rs.24,000/- in post office account of his daughter out of his retiral funds and that deposited amount is of plaintiff and not of defendant No.1. The defendant failed to examine her husband Shankar Singh Yadav, and that her evidence was not found reliable, therefore the issue No.1 was decided in favour of plaintiff. The defendant failed to examine her husband Shankar Singh Yadav, and that her evidence was not found reliable, therefore the issue No.1 was decided in favour of plaintiff. In view of decision of issue No.1, the issue No.2 was decided in favour plaintiff and against the defendant, accordingly the plaintiff has been held entitled to receive the deposited amount Rs.24,000/- with interest from the post office account of defendant No.1. Issue No.5, regarding cause of action, was decided against defendant, as she failed to raise any argument on the said issue. Accordingly, vide judgment dated 3-2-1992 the suit was decreed and plaintiffs has been declared the owner of the amount of account No.324030 and defendant No.1 was restrained from withdrawing the said amount, consequently the defendant No.2 restrained not to release the amount to defendant No.1. 10. Being aggrieved of the judgment and decree present first appeal has been filed. 11. Heard learned counsel for parties and perused the impugned judgment and decree as also other material available on record. 12. Learned counsel for defendant has submitted that the trial court committed illegality in not framing any issue regarding benami transaction. It was argued that provisions of Section 3 of the Benami Transaction (Prohibition) Act, 1988 were retrospective. It was further argued that once the plaintiff gifted amount to defendant No.1, then he had no right, title or interest for the amount in dispute and trial court has erred in decreeing the suit in favour of plaintiff. 13. Per contra, counsel for plaintiffs has supported the impugned judgment and submitted that the trial court has considered evidence of both parties and has rightly decided issues according to evidence of parties and has rightly passed the decree. 14. Heard. Considered. 15. This is not in dispute that the defendant Minakshi (appellant herein) is daughter of original plaintiff Ganpat lal Garg. This also not disputed that plaintiff Ganpat Lal retired from from the post of Deputy Director of Accounts (postal) on 31-3-1980, retiral benefits to the tune of Rs.58,369.50 were paid to him. The plaintiff has produced document dated 2-4-1980 (Ex.7) in this regard. This also not disputed that plaintiff Ganpat Lal retired from from the post of Deputy Director of Accounts (postal) on 31-3-1980, retiral benefits to the tune of Rs.58,369.50 were paid to him. The plaintiff has produced document dated 2-4-1980 (Ex.7) in this regard. The plaintiff has stated on oath that out of his retiral funds, he deposited Rs.24,500/- in the account (535453) of his son Suresh Garg in post office, Rs.24,000/- in the account (324030) of her daughter Minakshi and Rs.5,500/- in his own account (531046) and lateron in his own account he also deposited Rs.14,000/-. The plaintiff stated on oath that at the relevant point of time, the upper limit for depositing cash amount in saving account was Rs.25,000/- therefore he had to bifurcate his retiral funds to deposit in accounts of his son and daughter also. The plaintiff has produced the fee deposit slip (Ex.4) of his daughter and her character certificate (Ex.3). 16. From the plaintiff's evidence it has appeared that after depositing the amount Rs.24,000/- in the account of his daughter on 7-4-1980, she fled away with one Shankar Singh Yadav on 16- 5-1980. Plaintiff lodged FIR and his daughter was recovered from the custody of Shankar Singh Yadav. Later on his daughter entered into marriage with Shankar Singh Yadav, against wishes of him and all family members and never turned up to her parental home. Passbook of defendant No.1's account (Ex.1) is available on record. Entries in the passbook show that the account was opened on 15-5-1979 and prior to 7-4-1980, there are hardly entries of deposition of Rs.55/-, Rs72/-, Rs.90/-, Rs.140/-, Rs.150/-, and Rs.160/-. On the entire facts and circumstances and applying the principle of preponderance of probabilities plaintiff's case seems to be right that he deposited amount Rs.24,000/- in the account of his daughter, which was plaintiff's retiral fund. 17. Counter evidence of defendant No.1 that this amount was paid by her husband Shankar Singh Yadav neither seems to be believable nor appears to be genuine. Firstly, if Shankar Singh Yadav had paid this amount to defendant No.1, he could have appeared in witness box, and there is no reason for his non appearance. This fact itself leads to adverse inference against defendant No.1. Secondly, the witness Dw.2 Om Prakash Sharma, who is friend of Shankar Singh Yadav, stated that he credited only Rs.2000/- to Shankar Singh Yadav to pay to his wife. This fact itself leads to adverse inference against defendant No.1. Secondly, the witness Dw.2 Om Prakash Sharma, who is friend of Shankar Singh Yadav, stated that he credited only Rs.2000/- to Shankar Singh Yadav to pay to his wife. Statements Dw.2 are not corroborated to the defence taken by defendant No.1. That apart the reason assigned by defendant No.1 that on askance of plaintiff, Shankar Singh Yadav paid Rs.25,000/- to her is not proved by any supportive evidence. The stand taken by defendant No.1 that her educational expenses were born by her husband are also not proved. It is not in dispute that defendant No.1 herself was not having any source of income and she was studying at that point of time. 18. It is not the case of defendant No.1 that her father gifted this amount Rs.24,000/- while depositing the same in her account. Once the defendant No.1 has taken a specific plea that this amount was not deposited by her father but was paid by her husband Shankar Singh Yadav, the onus shifts on defendant No.1 to prove the defence. In civil cases the principle of preponderance of probabilities is applicable and known principle of law in order to ascertain the truth-ness of the stand of either of the party. On comparative examination of evidence of respective parties, the plaintiff's case seems to be trustworthy and the defence of defendant No.1 appears to be unbelievable and unfounded. 19. It is not unusual that when there was a ceiling limit of Rs.25,000/- to deposit in saving account, therefore the father deposited Rs.24,500/- in the account of his son, and Rs.24,000/- in the account of his daughter. Deposition of amounts by father in his son's account is not in dispute. Further the defendant No.1 has not disputed her signatures on withdrawal forms Ex.2. It appears on overall examination of evidence that when defendant No.1 fled away from her parental home to enter into marriage with Shankar Singh Yadav, thereafter her intention to return the retiral amount of her father turned ill and even after signing withdrawal form, she turned hostile and lateron wrote letter to Post Office that her signatures on withdrawal form were obtained against her wish. 20. 20. As far as the argument raised by and on behalf of defendant appellant that provisions of Section 3 of the Benami Transaction (Prohibition) Act, 1988 be treated as retrospective and should be applied to the transaction of 7-4-1980 is not acceptable. Firstly, for the reason that there is no such defence in her written statement. Secondly, provisions cannot be given retrospective effect unless any specific directions are stipulated in the Act itself. Such objection at the stage of appeal, which is beyond written statement and foreign to pleadings cannot be entertained. 21. According to rival pleadings of both parties, the trial court has rightly framed issues No.1&2 and on appreciation of evidence of both parties, both issues deserve to be held in favour of plaintiff and against the defendant No.1. Therefore, this court is of the opinion that the trial court has not committed any illegality or perversity in deciding the issue No.1 in favour of the plaintiff and against defendant No.1. The issue No.2 is consequent of findings of issue No.1, once it is proved that plaintiff did deposit Rs.24,000/- out of his retiral funds, in the account of his daughter in post office, obviously the plaintiff is entitled to withdraw the same with interest from the account of defendant No.1. 22. As far as issues No.3&4 are concerned, the same pertain to payment of court fees, which has already been decided by the trial court on 22-9-1986 and the same are not under challenge in present fir appeal. Hence, findings of trial court on issues NO.3&4 in its order dated 22-9-1986 have attained finality. Issue No.5 23. As far as issue No.5, regarding accrual of cause of action is concerned, counsel for appellant has not raised any argument on this issue. Otherwise also, in given facts and circumstances of the case it cannot be said that no cause of action arose to plaintiff to institute the suit. In absence of any evidence of defendant No.1, the trial court has rightly decided this issue in favour of the plaintiff and against the defendant No.1. 24. The upshot of the aforesaid discussion is that the impugned judgment passed by the trial court requires no interference by this court and the same deserves to be upheld and is upheld. There is no force in the first appeal filed by defendant appellant and the same is accordingly dismissed. 24. The upshot of the aforesaid discussion is that the impugned judgment passed by the trial court requires no interference by this court and the same deserves to be upheld and is upheld. There is no force in the first appeal filed by defendant appellant and the same is accordingly dismissed. No order as to costs. Decree be framed accordingly. 25. Record be sent to trial court.