JUDGMENT : Hanchate Sanjeevkumar, J. The plaintiff being aggrieved by the judgment and decree dated 03.03.2016 passed by the Court of the Senior Civil Judge, Honavar, in O.S.No.15/2014, by granting 1/4 th share each in Sl.No.4 of the plaint ‘A’ schedule properties the above appeal is preferred questioning the said judgment and decree for not granting share of 1/4 th in all the properties. 2. Rank of the parties are referred to as per their rankings before the trial court. PLAINT: 3. The plaintiff has filed suit for partition and separate possession by metes and bounds for claiming 1/4 th share in all the suit schedule ‘A’ and ‘B’ properties. It is stated that plaintiff is the mother, defendant No.1 is the wife and defendant Nos.2 and 3 are the minor children of deceased Ravindra Ganapati Shanbhag. The deceased was given employment under the compassionate ground upon death of his father. The deceased Ravindra Shanbhag died on 03.11.2012 while he was working as a First Division Assistant at Government High School Jalavalli. It is contended that suit schedule ‘A’ properties were acquired by the deceased Ravindra Shanbhag and after his death the names of plaintiff and defendants were mutated, but defendant No.1 by anyhow got mutated her name in the property records. It is stated that the plaintiff and the defendants are in joint possession and enjoyment of the properties. The suit schedule ‘B’ properties are the monetary benefits accrued on the death of deceased Ravindra Shanbhag. The plaintiff is entitled to share of 1/4 th in schedule ‘B’ properties being Class 1 legal heirs. Therefore, filed suit for partition and separate possession by claiming 1/4 th share in the suit schedule ‘A’ and ‘B’ properties. WRITTEN STATEMENT: 4. After service of suit summons to the defendants, the defendant No.1 appeared through her counsel and filed written statement, also on behalf of her minor children defendant Nos.2 and 3. The defendants admitted the relationship between the parties with deceased Ravindra Shanbhag. 5. The defendant No.1 has contended that she has paid the entire sale consideration amount for the purchase of suit schedule Item No.3 of schedule ‘A’ properties, but purchased in the name of her husband - Ravindra Shanbhag, as he is her husband. Therefore, quite naturally sale deeds were executed in the name of her husband. 5. The defendant No.1 has contended that she has paid the entire sale consideration amount for the purchase of suit schedule Item No.3 of schedule ‘A’ properties, but purchased in the name of her husband - Ravindra Shanbhag, as he is her husband. Therefore, quite naturally sale deeds were executed in the name of her husband. Hence, contended that the properties Item Nos.1 to 3 of schedule ‘A’ are self acquired properties of defendant No.1. Further so far as ‘B’ schedule properties are concerned, those are monetary benefits upon the death of her husband Ravindra Shanbhag and therefore, defendants are only entitled for those monetary benefits. 5.1. The defendant No.1 admitted that property at Item No.4 in schedule ‘A’ properties has been purchased by her husband Ravindra Shanbhag. Therefore, the plaintiff is entitled to share only in the property at Item No.4 in schedule ‘A’ property. Further stated that her husband deceased Ravindra Shanbhag has borrowed loan and has given money to his brother Arun Ganapati Shanbhag for purchase of Site No.36, KHB Colony in Sy.No.517, M1A1 measuring 0-1-05.33, but the said property has not been included in the suit and as such, the suit is not maintainable. Hence, on all the pleadings prayed to dismiss the suit. 5.2 Further the defendant No.1 got amended her written statement contending that the plaintiff has received a sum of Rs.1,04,179/- and Rs.18,098/- in total sum of Rs.1,22,277/- in respect of two LIC policies wherein she was nominee. Therefore, the defendants are also entitled to 3/4th share in the said amount. Hence, claimed set off towards the money received by the defendant No.1 upon the death of her husband, but the plaintiff has not mentioned the same in the suit. 6. The plaintiff has filed rejoinder to the said amended written statement and denied that she has received a sum of Rs.1,22,277/- and two LIC policies and she has pleaded that there is no question of setting off the amount. 7. Based on the pleading the trial court has framed the following issues: 1. Whether the plaintiff proves that she is entitled for 1/4 th share in suit properties? 2. Whether the defendants prove that Sl.No.1 to 3 properties are properties of the defendant no.1? 3. Whether all the partible properties are not included in this suit? 4. 7. Based on the pleading the trial court has framed the following issues: 1. Whether the plaintiff proves that she is entitled for 1/4 th share in suit properties? 2. Whether the defendants prove that Sl.No.1 to 3 properties are properties of the defendant no.1? 3. Whether all the partible properties are not included in this suit? 4. Whether defendants prove that defendant no.1 has spent the ‘B’ schedule amount for repayment of the loan borrowed by her husband, for the repayment of loan borrowed for the purpose of treatment and final rites of her husband and for performing the ‘Upanayana’ of defendant no.2? 5. What order or decree? REASONINGS OF THE TRIAL COURT: 8. The trial court has decreed the suit in part by granting 1/4 th share only in the property Item No.4 of schedule ‘A’ properties and dismissed the suit in respect of other properties. The trial court assigned the reason that since defendant No.1 admitted the property Item No.4 of schedule ‘A’ properties was purchased by the deceased Ravindra Shanbhag and as such has granted 1/4 th share only in Item No.4 of the schedule ‘A’ properties. The trial court assigned the reason for dismissing the suit so far as other properties are concerned that Ex.D-49 is certified copy of the sale deed dated 06.01.2006 in respect of Item Nos.1 and 2 of schedule ‘A’ property, which shows that deceased Ravindra Shanbhag has purchased those properties from Radhakrishna Honnappa Achari for total consideration of Rs.67,000/- and this Ex.D-49 proves that the consideration amount was paid earlier to execution of sale deed. Ex.D-22 is the passbook of defendant No.1 in respect of her savings account in KDCC Bank Ltd., Sirsi, which shows that a sum of Rs.60,000/- was paid to Radhakrishna Honnappa Achari on 05.12.2005. Ex.D- 55(a) is the original ledger book in respect of savings of defendant No.1, which shows she has paid a sum of Rs.60,000/- to Radhakrishna Honnappa Achari. The defendant No.1 is a Government servant working as First Division Assistant, Akshara Dasoha, Taluk Panchayat, Honnavar. Therefore, trial court came to conclusion that defendant No.1 has paid the amount towards purchase of the properties at Item Nos.1 to 3 of schedule ‘A’ properties and dismissed the suit so far as Item Nos.1 to 3 schedule ‘A’ properties. 9. The defendant No.1 is a Government servant working as First Division Assistant, Akshara Dasoha, Taluk Panchayat, Honnavar. Therefore, trial court came to conclusion that defendant No.1 has paid the amount towards purchase of the properties at Item Nos.1 to 3 of schedule ‘A’ properties and dismissed the suit so far as Item Nos.1 to 3 schedule ‘A’ properties. 9. Further so far as schedule ‘B’ properties are concerned, it is monetary benefits upon the death of deceased Ravindra Shanbhag and trial court by placing reliance on Rule 292(ii)(1) & (2) and also Rule 302(i) of the Karnataka Civil Services Rules , it was opined that the defendants alone are entitled to the death benefits, thus rejected the claim of plaintiff for partition and share in schedule ‘B’ properties also. Thus, the trial court upon assigning the said reasons has allowed the suit partly decreeing the suit so far as granting 1/4 th share in Item No.4 of schedule ‘A’ properties and disposed of the suit in respect of remaining properties. GROUNDS IN MEMORANDUM OF APPEAL: 10. Being aggrieved by this, the plaintiff has preferred this appeal so far as not granting share in Item Nos.1 to 3 of schedule ‘A’ properties and also in schedule ‘B’ properties. The grounds raised are that the finding given by the trial court that Item Nos.1 to 3 of schedule ‘A’ properties, are the self acquired properties of defendant No.1 is perverse, not legal as they are contrary to the evidence on record. Further it is the ground that in respect of the Item Nos.1 and 2 of schedule ‘A’ properties, the name of deceased Ravindra Shanbhag was found in the records. Therefore, the trial court has committed an error in not granting the share in all the properties. Further it is the ground that the deceased Ravindra Shanbhag was also a Government employee and hence, even if the amount was transferred from the defendant No.1 account, which at the most is amounting to arrangement between the husband and wife and that does not itself lead to an inference that the defendant No.1 alone has paid the sale consideration amount and hence, the trial court has committed an error. 11. Further the finding given by the trial court that as per Ex.D-60 to Ex.D-65 the mother of deceased Ravindra Shanbhag has given sum of Rs.6,25,000/-, cannot be accepted. 11. Further the finding given by the trial court that as per Ex.D-60 to Ex.D-65 the mother of deceased Ravindra Shanbhag has given sum of Rs.6,25,000/-, cannot be accepted. Further the finding of trial court that appellant being the mother of deceased is not entitled for any share in the service benefits is perverse, erroneous and contrary to the evidence on record and law. On all these grounds he prays to set aside the judgment and decree passed by the trial court and further prays to decree the suit by granting 1/4 th share in all the suit schedule properties. 12. Heard the arguments from both sides and perused the records. The points that arise for consideration are as follows: (1) Whether, under the facts and circumstances involved in the case, the plaintiff proves that all the suit schedule ‘A’ and ‘B’ properties are properties of the deceased Ravindra Shanbhag, thus she is entitled for 1/4 th share in all the suit schedule properties? (2) Whether, under the facts and circumstances involved in the case, the defendants prove that the suit Item Nos.1 to 3 of schedule ‘A’ properties are self acquired properties of defendant No.1? (3) Whether, under the facts and circumstances involved in the case, the defendants prove that the defendants alone are entitled for their shares in schedule ‘B’ properties? (4) Whether, under the facts and circumstances involved in the case, the defendants prove that defendant No.1 has spent schedule ‘B’ amount for repayment of loan borrowed by her husband for the purpose of treatment and final rituals of her husband and for performing ‘Upanayana’ of defendant Nos.2 and 3? (4) Whether, under the facts and circumstances involved in the case, the defendants prove that they are entitled for set off of the claim? (5) Whether the judgment and decree of the trial court requires any interference? SUBMISSIONS OF COUNSEL FOR PLAINTIFF/APPELLANTS: 13. The learned counsel for the appellant/plaintiff submitted that Item Nos.1 to 3 of schedule ‘A’ properties were acquired by deceased Ravindra Shanbhag and his name was appearing on the records. Therefore, the plaintiff being mother of deceased Ravindra Shanbhag is entitled for 1/4 th share in all the items of schedule ‘A’ properties. SUBMISSIONS OF COUNSEL FOR PLAINTIFF/APPELLANTS: 13. The learned counsel for the appellant/plaintiff submitted that Item Nos.1 to 3 of schedule ‘A’ properties were acquired by deceased Ravindra Shanbhag and his name was appearing on the records. Therefore, the plaintiff being mother of deceased Ravindra Shanbhag is entitled for 1/4 th share in all the items of schedule ‘A’ properties. Further submitted with reference to the provisions of The Prohibition of Benami Property Transactions Act, 1988 (for short ‘PBPT Act’) that though defendant No.1/wife had paid the amount to purchase the property in the name of her husband deceased Ravindra Shanbhag, is amounting to benami transactions, hence she is not entitled to claim ownership over the properties. Therefore, under the provisions of the PBPT Act the defendant No.1 is estopped claiming her ownership over the properties. Therefore, the plaintiff is entitled for 1/4 th share in all the Item Nos.1 to 4 of suit schedule properties. 14. Further submitted that deceased Ravindra Shanbhag was also a Government employee and he has purchased property in his name and whatever the contribution might have been by the defendant No.1 that is only an understanding between the husband and wife. Therefore, defendant No.1 cannot contend that she alone is the owner of the properties. When the deceased Ravindra Shanbhag was also a Government employee, quite naturally being male earning member in the family had acquired the properties in his name and as such, the properties are belonging to deceased Ravindra Shanbhag. Hence, plaintiff being mother as Class 1 legal heir is entitled to equal share along with the defendants. 15. Further argued that The Benami Transactions (Prohibition) Act, 1988 , (BTP Act) (Before Amendment) came into force from 05.05.1988 and the same was amended in the year 2016, but in the present case the transaction is prior to 2016 and therefore, the suit having been disposed of on 03.03.2016, which is prior to commencement of Amendment Act No.43 of 2016 i.e., with effect from 01.11.2016 and as such the unamended provisions of the said Act are applicable to the present case on hand. 16. 16. Learned counsel with reference to Sections 2 , 3 and 4 of the Benami Transactions (Prohibition) Act, 1988 (before amendment 2016) submitted that upon bare perusal of the provisions of Sections 2 , 3 and 4 would make it clear that any transactions made by the wife in the name of her husband would indeed amount to Benami Transactions and this being the case, under Section 4 of the BTP Act (Before Amendment), defendant No.1 being wife of the deceased Ravindra could not have taken such defence in the suit filed by the plaintiff that said the property though standing in the name of deceased Ravindra, and consideration was paid by the defendant No.1 and as such she could not be said the owner of the property. In view of the bar provided under Section 4 of the BTP Act (Before Amendment), Act the said defence could not have been taken by the defendant No.1 in the said suit. 17. Further submitted that the Benami Transactions (Prohibition) Act, 1988 was amended in the year 2016 by the Act 43 of 2016, but the Amendment Act nowhere mentions that the same is to be applied retrospectively. Hence, unless the same is made expressly retrospective the same could not have been applied to the present case on hand. Also argued with reference to Section 5 of the General Clauses Act, 1987 and submitted that unless specifically stated the applicability of provisions retrospectively, the same could not be made with retrospectively effect. Therefore, the Amendment Act 43 of 2016 is not applicable in the present case as the entire transactions to suit are prior to year 2016. 18. Further submitted that though defendant No.1 relies on Section 1(3) of the PBPT Act and contends that Amendment Act is to be made applicable as on 19.05.1988, but that is not the intention of the Legislature, the provisions of Section 1 which is prevailing as on the date of the unamended Act have not been changed and hence, the wordings used in Section 1(3) is insofar as the original amended provisions are concerned, as per which only provisions of Sections 3, 5 and 8 of the Act would come into force as on the date the Act was enacted i.e., 05.05.1988. However, insofar as other provisions are concerned, they are directed to come into force on 19.05.1988. 19. However, insofar as other provisions are concerned, they are directed to come into force on 19.05.1988. 19. Further submitted that Act 43 of 2016 making amendment to the Benami Transactions Act does not have retrospective effect. Therefore, defendant No.1 is not entitled to take benefit of the amended provisions. Therefore, the defendant No.1 could not have taken such defence. When this being the provision of law applicable to the present case, then for all purposes and also as per the provisions of law above discussed, it is proved that Item Nos.1 to 4 properties of schedule ‘A’ are acquired in the name of deceased Ravindra Shanbhag. Therefore, the plaintiff being the mother of deceased Ravindra Shanbhag is entitled to equal share as that of defendants being Class I legal heir. As such, in this regard submitted that trial court has committed an error and prays to allow the appeal and grant 1/4 th share to the plaintiff on all the suit schedule properties ‘A’ and ‘B’. 20. It is submitted that schedule ‘B’ property is monetary benefits on account of death of deceased Ravindra Shanbhag. Therefore, the plaintiff being Class I legal heir is entitled for 1/4 th share also in schedule ‘B’ property, but the trial court has erroneously dismissed the claim in this regard. Hence, submitted that approach of the trial court is perverse and unlawful. Therefore, prays to allow the appeal and decree the suit as prayed for. SUBMISSIONS OF COUNSEL FOR DEFENDANTS/RESPONDENTS: 21. On the other hand, learned counsel for the respondents/defendant Nos.1 to 3 submitted that ‘benami transaction’ in this case what is being canvassed by the plaintiff is coming under the exceptions at Section 2(9)(A)(b)(iii) of the PBPT Act, 1988. The Act is amended in the year 2016, but it is clearly mentioned in the Act itself at Section 1(3) of the Benami Transactions (Prohibitions) Act, 1988, that the applicability of the amendment is having retrospective effect and therefore, the transactions in this case is fallen to under exception to the Act. 22. Further submitted that even if it is held that the provisions of Section 3 of the Benami Transactions (Prohibition) Act, 1988 (before Amendment Act) is applied to the present case, then as per sub-section (2) of Section 3 of BTP Act, the case comes under exception to ‘benami transaction’ as per Section 13 of the General Clauses Act, 1897 . Further submitted that even if it is held that the provisions of Section 3 of the Benami Transactions (Prohibition) Act, 1988 (before Amendment Act) is applied to the present case, then as per sub-section (2) of Section 3 of BTP Act, the case comes under exception to ‘benami transaction’ as per Section 13 of the General Clauses Act, 1897 . As per Section 13 of the General Clauses Act wherever the words importing the muscular gender shall be taken to include females also. Therefore, submitted that in sub-section (2) of Section 3 the meaning of the section is also to be understood as ‘any person in the name of her husband’. As per Section 13 of the General Clauses Act, 1897 , even if wife has purchased property in the name of husband that does come within exception in sub-section (2) of Section 3 of the Benami Transactions (Prohibition) Act, 1988 (before Amendment 2016). 23. Further submitted that the plaintiff has not included property in Sy.No.53A/2B situated at Malkoda Village and as such, the suit is bad for non-joinder of properties. Hence, with the above said submissions learned counsel for the respondents/defendants prays to dismiss the appeal. REASONINGS: 24. Even upon considering the entire case on record with the pleadings and evidence on record the plaintiff is claiming that the suit schedule Item Nos.1 to 4 of schedule ‘A’ properties were acquired by deceased Ravindra Shanbhag and thus, the deceased Ravindra was the owner of the property and hence, the plaintiff being mother of the deceased has claimed 1/4 th share in the suit schedule properties. On the other hand, it is the case of defendants that defendant No.1 is also a Government servant and has purchased suit item Nos.1 to 3 but in the name of her deceased husband. Therefore, these properties are self acquired properties of the defendant No.1. In this background, two aspects are to be considered: (1) Whether, the defendant No.1 is able to prove that she has paid consideration amount for purchasing the Item Nos.1 to 3 properties of schedule ‘A’? (2) Whether, Benami Transactions (Prohibition) Act, 1988 and also after amendment in the year 2016, the provisions of the PBPT Act, are applicable so as to say that wife would be entitled to take defence being a beneficiary of the benami transaction? 25. (2) Whether, Benami Transactions (Prohibition) Act, 1988 and also after amendment in the year 2016, the provisions of the PBPT Act, are applicable so as to say that wife would be entitled to take defence being a beneficiary of the benami transaction? 25. Admittedly, the defendant No.1 is a Government servant being First Division Attendant, Akshara Dasoha, working in Taluk Pachayat Honnavara. Therefore, defendant No.1 is also earning member in the family. The defendant No.1 admitted that deceased Ravindra had purchased property Item No.4 of schedule ‘A’ properties. Thus, it is joint family property of plaintiff and defendants. The trial court has granted partition of giving 1/4 th share to the plaintiff only in Item No.4 of schedule ‘A’ properties. 26. It is the burden on defendant No.1 to prove that for purchasing Item Nos.1 and 2 properties of schedule ‘A’ and the construction made on the Item No.1 property is invested by the defendant No.1. In this regard, the documentary evidence Ex.D-49 - certified copy of the sale deed dated 06.01.2006 in respect of Item Nos.1 and 2 of schedule ‘A’ properties, is to be considered. The recitals in the sale deed proved the fact that deceased Ravindra Shanbhag has purchased properties from Radhakrishna Honnappa Achari for total sale consideration of Rs.67,000/-. It proves the fact that an amount of Rs.60,000/- was paid to said Radhakrishna Honnappa Achari on 05.12.2005 i.e., prior to sale deed dated 06.01.2006. 27. Ex.D-22 is passbook of defendant No.1 in respect of her savings account in KDCC Bank Ltd., Sirsi, Honnavara Branch. It is revealed from the said Ex.D-22 that an amount of Rs.67,000/- was paid to Radhakrishna Honnappa Achari. Ex.D-55(a) original account ledger extract of defendant No.1 shows that on 05.12.2005 she has paid a sum of Rs.60,000/- to Radhakrishna Honnappa Achari. DW2 is the Bank Manager and he has deposed that Ex.D-22 is the passbook of defendant No.1 and its original extract is Ex.P-55(a). Both the documents have been issued from his Bank. The DW1 in her examination- in-chief has deposed that she has paid consideration amount to purchase the properties Item Nos.1 and 2 to Radhakrishna Honnappa Achari through cheque, which is corroborated by the evidence of DW2 - Bank Manager and Ex.D-22 and D-55(a). Both the documents have been issued from his Bank. The DW1 in her examination- in-chief has deposed that she has paid consideration amount to purchase the properties Item Nos.1 and 2 to Radhakrishna Honnappa Achari through cheque, which is corroborated by the evidence of DW2 - Bank Manager and Ex.D-22 and D-55(a). Therefore, these documentary evidence and oral evidence clearly prove the fact that defendant No.1 has paid consideration amount in respect of purchase of Sl.Nos.1 and 2 of schedule ‘A’ property and balance amount in cash. 28. Regarding Item No.3 - building on schedule ‘A’ property, which is a construction made on Item No.1 property is concerned, PW1 – plaintiff has stated that construction of house is completed. This evidence of PW1 that deceased Ravindra during his lifetime has got prepared plan and estimation from an Engineer by name Ganesh Hegde and further stated that a licence has been obtained for construction of the said building, but the plaintiff has not produced any document before the Court. 29. Further PW1 is unable to say when foundation stone laying ceremony was done. From the evidence of PW1 it is proved that during the lifetime of her son Ravindra construction work was not completed and house opening ceremony was not done. Further she has expressed her ignorance that at present when house worming ceremony was celebrated. Therefore, from the above said evidence it is proved that defendant No.1 herself alone had started construction and completed construction. On the other hand, DW1/defendant No.1 has produced the document regarding raising loan from bank and financial institutions. The DW1 has examined Managers of those financial institutions as DW2 to DW5 and the oral evidence of these Bank Managers and documents placed by defendant No.1 proved the fact that defendant No.1 has raised loan for construction of house on Item No.1 property. DW6 is the mother of defendant No.1. That after the death of her husband she has been receiving pension of Rs.6,000/- per month. From the evidence of DW6 it is proved that her son (brother of defendant No.1) is working at Dubai and DW6 has advanced financial assistance of Rs.6,25,000/- to the defendant No.1. Therefore, defendant No.1 has proved the fact that financial resources to purchase the property Item No.3 over the Item No.1 property. No doubt all the properties are standing in the name of deceased Ravindra Shanbhag. Therefore, defendant No.1 has proved the fact that financial resources to purchase the property Item No.3 over the Item No.1 property. No doubt all the properties are standing in the name of deceased Ravindra Shanbhag. Therefore, the next question is applicability of the provisions of the Benami Transactions (Prohibition) Act, 1988 (before amendment) and the Prohibition of Benami Property Transaction Act, 1988 (after amendment) is to be considered. 30. It is the argument canvassed by the learned counsel for the appellant/plaintiff that since every transaction in this case is prior to the 2016, the Benami Transactions (Prohibition) Act, 1988 (before Amendment 2016), is applicable and whatever amendment made in the year 2016 are only prospective in nature and could not be applied retrospectively. As per this, he refers the definition of ‘benami transaction’ as enshrined in Section 2 (a) of the before Amendment Act. Further, as per Clause (a) of sub-section (2) of Section 3 , if a person purchases the property in the name of his wife or unmarried daughter, then clause of exception is applicable, but in the present case it is canvassed that the wife purchased the property in the name of her husband. Therefore, the above said provision is not applicable. 31. On the other hand, the learned counsel for the respondents/defendants submitted that as per Section 13 of the General Clauses Act, 1897 , the wordings importing the masculine gender shall be taken to include females also. Further submitted that the Amendment Act 43 of 2016 is applicable retrospectively. Therefore, the provisions of the benami transactions as per the above statute is not applicable in the instant case. 32. For the purpose of easy comprehension of the provisions, which are extracted as below. Section 2 (a) of the Benami Transactions (Prohibition) Act, 1988 (before amendment) is as follows: “2. Definitions.—In this Act, unless the context otherwise requires,-- (a) “Benami transaction” means any transaction in which property is transferred to one person for a durationation paid or provided by another person; (b) xxxx (c) xxxx” 33. Sub-section (1) of Clause (a) of sub-section (2) of Section 3 reads as follows: “3. Prohibition of benami transactions.-- (1) No person shall enter into any benami transaction. Sub-section (1) of Clause (a) of sub-section (2) of Section 3 reads as follows: “3. Prohibition of benami transactions.-- (1) No person shall enter into any benami transaction. (2) Nothing in sub-section (1) shall apply to -- (a) the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter; (b) xxxx” 34. As per these provisions, reading the above said both the provisions are considered ‘Benami transactions’, is defined and what is not bonafide transaction is stipulated in Section 3 . As per Clause (a) of the sub- section (2) of Section 3 of the Benami Transactions (Prohibition) Act, 1988 (before amendment), any person in the name of his wife or unmarried daughter means here any person refers to ‘masculine gender’. If he purchases property in the name of his wife, then the provisions of Benami Transactions in the Act are not applicable. 35. Section 13 of the General Clauses Act reads as follows: “13. Gender and number. – In all [Central Acts] and Regulations, unless there is anything repugnant in the subject or context,-- (1) words importing the masculine gender shall be taken to include femaless; and (2) words in the singular shall include the plural, and vice versa.” 36. As per Section 13 , the words importing the masculine gender shall also be taken into consideration to include females also. Wherein sub-clause (a) of sub- section (2) of Section 3 ‘any person in the name of his wife’ means also converse application of meaning, it means ‘any person in the name of her husband’. When this provision is interpreted to get clarification in this regard, with the aid of Section 13 of the General Clauses Act, property purchased by husband in the name of his wife or property purchased by wife in the name of her husband, is to be understood. Therefore, in this regard, when in the present case applying this clause (a) of sub- section (2) of Section 3 of the Act (before amendment), the defendant No.1 has purchased the property in the name of her husband deceased Ravindra. Therefore, in this regard, when in the present case applying this clause (a) of sub- section (2) of Section 3 of the Act (before amendment), the defendant No.1 has purchased the property in the name of her husband deceased Ravindra. Therefore, by combined application of provisions of Clause (a) of sub- section (2) of Section 3 of the Benami Transactions (Prohibition) Act, 1988 (before amendment) and Section 13 of the General Clauses Act, 1897 , the transaction between the defendant No.1 and deceased Ravindra of purchasing the property by the defendant No.1 in the name of deceased Ravindra, cannot be said that it is a benami transaction. 37. Also the said Benami Transactions (Prohibition) Act, 1988 , is amended by the Act 43 of 2016, with effect from 01.11.2016 and the nomenclature of Act is changed into “The Prohibition of Benami Transactions Act, 1988”. Section 1 (3) of The Prohibition of Benami Property Transactions Act, 1988 (After amendment) and also The Benami Transactions (Prohibition) Act, 1988 (before amendment) reads as follows: THE PROHIBITION OF BENAMI PROPERTY TRANSACTIONS ACT, 1988 (AFTER AMENDMENT): “1. Short, title, extent and commencement.—(1) xxxx (2) xxxx (3) The provisions of sections 3, 5 and 8 shall come into force at once, and the remaining provisions of this Act shall be deemed to have come into force on the 19 th day of May, 1988.” THE BENAMI TRANSACTIONS (PROHIBITION) ACT, 1988 (BEFORE AMENDMENT): “1. Short, title, extent and commencement.—(1) xxxx (2) xxxx (3) The provisions of sections 3, 5 and 8 shall come into force at once, and the remaining provisions of this Act shall be deemed to have come into force on the 19 th day of May, 1988.” 38. Sub-clause (iii) (b) of Clause A of sub-section (9) of Section 2 of the Prohibition of Benami Property Transactions Act, 1988 (after amendment) reads as follows: “2. Sub-clause (iii) (b) of Clause A of sub-section (9) of Section 2 of the Prohibition of Benami Property Transactions Act, 1988 (after amendment) reads as follows: “2. Definitions.—In this Act, unless the context otherwise requires,-- (1) xxxx (2) xxxx (3) xxxx (4) xxxx (5) xxxx (6) xxxx (7) xxxx (8) xxxx (9) “benami transaction” means— (A) a transaction or an arrangement-- (a) xxxx (b) the property is held for the immediate or future benefit, direct of indirect, of the person who has provided the consideration, except when the property is held by – (i) xxxxx (ii) xxxx (iii) any person being an individual in the name of his spouse or in the name of any child of such individual and the consideration for such property has been provided or paid out of the known sources of the individual; (iv) xxxx” 39. As per this, any person being an individual in the name of his spouse purchase the property (as applicable in the present case), is not a ‘benami transactions’. There are certain exceptions of considering a benami transactions and the above provision is one of the exception to the benami transaction. Here the Clause (iii) is made in clarification making a gender neutral in The Benami Transactions (Prohibition) Act, 1988 (before amendment). In Clause (a) of sub-Section (2) of Section 3 the wordings are that “by any person in the name of his wife” and in said sub-clause (iii) (b) of Clause A of sub- section (9) of Section 2 of the PBPT Act, the exception is made gender neutral by incorporating the word “spouse”. Therefore, after amendment the definition clause is made more clarificatory and as such it is applicable retrospectively. There is no substantial change and wherever definition is made clarificatory after the amendment that is presumed to be with retrospective effect. 40. In this regard, I place reliance on the judgment of Hon’ble Supreme Court in the case of SREE SANKARACHARYA UNIVERSITY OF SANKSRIT AND OTHERS v. DR.MANU AND ANOTHER, (2023) SCC Online SC 640 wherein their Lordships at paragraphs 46, 47, 48, 49, 50, 51 and finally at paragraph 52 have summarized the principles regarding applicability of any amended provision with retrospective effect. “46. “46. In order to effectively deal with the aspect as to retrospective operation of the Government Order dated 29 th March, 2001 it may be useful to refer to the following extract from the treatise, Principles of Statutory Interpretation, 11 th Edition (2008) by Justice G.P. Singh on the sweep of a clarificatory/declaratory/explanatory provision: “The presumption against retrospective operation is not applicable to declaratory statutes. As stated in Craies and approved by the Supreme Court: For modern purposes a declaratory Act may be defined as an Act to remove doubts existing as to the common law, or the meaning or effect of any Statute. Such acts are usually held to be retrospective. […] An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law, retrospective operation is generally intended. The language 'shall be deemed always to have meant' or 'shall be deemed never to have included' is declaratory and is in plain terms retrospective. In the absence of clear words indicating that the amending Act is declaratory, it would not be so construed when the amended provision was clear and unambiguous. An amending Act may be purely clarificatory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect and, therefore, if the principal Act was existing law when the constitution came into force, the amending Act also will be part of the existing law.” [Emphasis by us] 47. This Court in Commissioner of Income Tax, Bombay vs. Podar Cement Pvt. Ltd., (1997) 226 ITR 625 (SC) noted that circumstances under which an amendment or modification was introduced and the consequences thereof would have to be borne in mind while deciding the issue as to whether the amendment was clarificatory or substantive in its nature and whether it would have retrospective effect or not. 48. In Allied Motors Pvt. Ltd. vs. Commissioner of Income Tax, Delhi, (1997) 224 ITR 677 (SC), this Court found that certain unintended consequences flowed from a provision enacted by the Parliament. There was an obvious omission. In order to cure the defect, a proviso was sought to be introduced through an amendment. 48. In Allied Motors Pvt. Ltd. vs. Commissioner of Income Tax, Delhi, (1997) 224 ITR 677 (SC), this Court found that certain unintended consequences flowed from a provision enacted by the Parliament. There was an obvious omission. In order to cure the defect, a proviso was sought to be introduced through an amendment. The Court held that literal construction was liable to be avoided if it defeated the manifest object and purpose of the Act. This Court held that if the amendment was not read into the relevant provision retrospectively, it would be impossible to reasonably interpret the said provision. That since there was an obvious omission in the provision, an amendment was necessitated which would clarify/declare the law retrospectively. 49. The proposition of law that a clarificatory provision may be made applicable retrospectively is so well established that we do not wish to burden this judgment by referring to rulings in the same vein. However, it is necessary to dilate on the role of a clarification/explanation to a statute and how the same may be identified and distinguished from a substantive amendment. 50. An explanation/clarification may not expand or alter the scope of the original provision, vide Bihta Cooperative Development Cane Marketing Union Ltd. vs. Bank of Bihar, A.I.R. 1967 SC 389. Merely describing a provision as an “Explanation” or a “clarification” is not decisive of its true meaning and import. On this aspect, this Court in Virtual Soft Systems Ltd. vs. Commissioner of Income Tax, Delhi, (2007) 289 ITR 83 (SC) observed as under: “Even if the statute does contain a statement to the effect that the amendment is declaratory or clarificatory, that is not the end of the matter. The Court will not regard itself as being bound by the said statement in the statute itself, but will proceed to analyse the nature of the amendment and then conclude whether it is in reality a clarificatory or declaratory provision or whether it is an amendment which is intended to change the law and which applies to future periods.” 51. The Court will not regard itself as being bound by the said statement in the statute itself, but will proceed to analyse the nature of the amendment and then conclude whether it is in reality a clarificatory or declaratory provision or whether it is an amendment which is intended to change the law and which applies to future periods.” 51. This position of the law has also been subscribed to in Union of India vs. Martin Lottery Agencies Ltd., (2009) 12 SCC 209 wherein it was stated that when a new concept of tax is introduced so as to widen the net, the same cannot be said to be only clarificatory or declaratory and therefore be made applicable retrospectively, even though such a tax was introduced by way of an explanation to an existing provision. It was further held that even though an explanation begins with the expression “for removal of doubts,” so long as there was no vagueness or ambiguity in the law prior to introduction of the explanation, the explanation could not be applied retrospectively by stating that it was only clarificatory. 52. From the aforesaid authorities, the following principles could be culled out: i) If a statute is curative or merely clarificatory of the previous law, retrospective operation thereof may be permitted. ii) In order for a subsequent order/provision/amendment to be considered as clarificatory of the previous law, the pre-amended law ought to have been vague or ambiguous. It is only when it would be impossible to reasonably interpret a provision unless an amendment is read into it, that the amendment is considered to be a clarification or a declaration of the previous law and therefore applied retrospectively. iii) An explanation/clarification may not expand or alter the scope of the original provision. iv) Merely because a provision is described as a clarification/explanation, the Court is not bound by the said statement in the statute itself, but must proceed to analyse the nature of the amendment and then conclude whether it is in reality a clarificatory or declaratory provision or whether it is a substantive amendment which is intended to change the law and which would apply prospectively.” 41. Therefore, the amendment made to definition is not amending punitive provisions or substantive in nature, but the amendment made to the definitions in the Act is only a clarificatory in nature. Therefore, the amendment made to definition is not amending punitive provisions or substantive in nature, but the amendment made to the definitions in the Act is only a clarificatory in nature. Thus, the amended provisions are applicable with retrospective effect. 42. Where the transaction of purchasing the property by the husband in the name of wife or purchasing the property by wife in the name of her husband, is an exception to benami transactions in the Act above stated. Here, when a wife purchases property in the name of her husband or husband purchases the property in the name of wife, there is no necessity for hiding out his identity. If the transaction is to be called as a ‘benami transaction’, the motive and intention must be clear for getting benefit out of purchase in benami name that transaction is called ‘benami transaction’. Sub-section (12) of Section 2 of The Prohibition of Benami Property Transactions Act, 1988, reads as follows; “12. “beneficial owner” means a person, whether his identity is known or not, for whose benefit the benami property is held by a benamidar;” 43. Where a husband purchases the property in the name of his wife or a wife purchases the property in the name of her husband, could not be categorized as ‘benami transactions’ as the husband or wife cannot be termed as a beneficial owner as per sub-section (12) of Section 2 of PBPT Act (after amendment). 44. As above stated, the amendment made to the Section 2 definitions is making enactment more clarificatory and the curative one to the Act (Before Amendment). Therefore, the provisions enshrined in the definitions are applicable retrospectively. When the principle of law laid down above discussed, as discussed above, the amendment made to Section 2 of the Act is curative, giving clarity, removing ambiguities and making more precise the intent of legislation, then the amendment made by the Act 43 of 2016 is with retrospective effect. 45. For the reasons discussed above, it is proved that the defendant No.1 purchased the property in the name of her husband deceased Ravindra and therefore, benami transactions are not applicable in this case as it is proved that property acquired by the defendant No.1 is self acquired property. Hence, the plaintiff is not entitled to share in other properties except Item No.4 of schedule ‘A’ properties. Hence, the plaintiff is not entitled to share in other properties except Item No.4 of schedule ‘A’ properties. Thus, in this regard, the trial court is correct in partly decreeing the suit so far as Item No.4 of schedule ‘A’ property is concerned. 46. The items in schedule ‘B’ properties are monetary benefits on account of death of deceased Ravindra Shanbhag though the plaintiff being mother and is also entitled to share in the said monetory benefits, but the evidence on record prove the fact that defendant No.1 had not utilized the amount herself or with her children but has used the said amount for the payment of loan raised by deceased Ravindra during his lifetime and for education and Upyanayana for the growth of children. Therefore, the trial court is correct in not granting decree in schedule ‘B’ property also. Therefore, I answer point No.1 partly in the affirmative, points No.2 to 4 in the affirmative and points No.4 and 5 in the negative. 47. Upon reappreciating the evidence on record and reasons assigned in the judgment and decree, there is no perversity or illegality in the findings and reasonings given by the trial court, as such the appeal is found to be devoid of merits. Hence, the appeal is liable to be dismissed. 48. Hence, I proceed to pass the following: ORDER (1) Appeal is dismissed. (2) Judgment and decree dated 03.03.2016 passed by the Court of the Senior Civil Judge, Honnavar, in O.S.No.15/2014, is affirmed. (3) Registry to draw the decree accordingly. (4) No order as to costs.