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9. Therefore, it was legal right of the plaintiff to contend in those days that even though the transfer of the property had been effected in the name of defendant benamidar for the plaintiff from whom the consideration had moved the plaintiff was the real owner and, therefore, the defendant was bound to restore such property to the real owner. If the benamidar took up a defiant attitude then the law provided a substantive right to the plaintiff to come to the Court for getting appropriate declaration and 'relief of possession on that ground. Various Courts in India over a century used to entertain such suits and such suits on proof of relevant facts used to be decreed. The legislature, however, in its wisdom considered the question of enacting an appropriate legislation for prohibiting such benami transactions. For the purpose earlier Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988, was promulgated by the President and it was followed by the Act, the different sections of which came into force on the respective dates as mentioned hereinabove. It may also be kept in view that these exercises were undertaken in the, light of India Law Commission's 57th Report on benami transaction. This Report was submitted on 7th August, 1973 by the Law Commission after studying benami system as operating in India and England. He Law Commission also examined implications of the provisions of the Indian Trusts Act, 1882 and other statutory modifications of the benami law as contained in the Code of Civil Procedure, the Trans- fer of Property Act, the Indian Penal Code and the Income Tax Act. In that Report, the Law Commission suggested retrospective effect to be accorded to the proposed legislation. 15 years, however, passed by and the Parliament did not take any steps in this connection. In the meantime, many more suits concerning benami transactions not only saw the light of day but also got successfully disposed of. Some of them, however, were pending in first appeals or second appeals or revisions. Then, as not earlier, on 19th May, 1988 the President of India promulgated the Ordinance to prohibit the right to recover property held benami and for matters connected therewith and incidental thereto based on the suggestion of the Law Commission of India. Thereafter the law Commission was requested to take up the question of benami transactions for detailed examination and to give its considered views as early as possible so that a Bill to replace the Ordinance could be drafted on the basis of its recommendations and got passed by the Parliament. Indian Law commission by its 130th Report on August 14, 1988 recommended passing of appropriate legislation and accordingly the Benami Transactions (Prohibition) Bill 1988, drafted after getting the Report, was introduced in the Rajya Sabha on 31st August, 1988 and the Bill was passed. In para 3.18 of its Report. the Law Commission made the fol- lowing recommendation in connection with the retrospective operation of the proposed legislation:-

(1)Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), an offence under this section shall be non-

congnizable and bailable."

A mere look at the above provisions shows that the prohibition under Section 3(1) is against persons who are to enter into benami transactions and it has laid down that no person shall enter into any benami transaction which obviously means from the date on which this prohibition comes into operation i.e. with effect from September 5, 1988. 'Mat takes care of future benami transactions. We are not concerned with sub-section (2) but sub- section (3) of Section 3 also throws light on this aspect. As seen above, it states that whoever enters into any benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both. Therefore, the provision creates a new offence of entering into such benami transactions. It is made non-congnizable and bailable as laid down under sub-section (4). It is obvious that when a statutory provision creates new li- ability and new offence it would naturally have prospective operation and would cover only those offences which take place after, section 3 (1) comes into operation. In fact Saikia J. speaking for the Court in Mithilesh Kumari's case (supra) has in terms observed at page 635 of the report that Section 3 obviously cannot have, retrospective operation. We respectfully concur with this part of the learned Judge's view. The real problem centres round the effect of Section 4(1) on pending proceedings wherein claim to any property on account of it being held benami by other side is on the anvil and such proceeding had not been finally disposed of by the time Section 4(1) came into operation, namely, on 19th May, 1988. Saikia J. speaking for the Division Bench in the case of Mithilesh Kumari (supra). gave the following reasons for taking the view that though Section 3 is prospective and though Section 4(1) is also not expressly made retrospective, by the legislature, by necessarily implication, it appears to be retrospective and would apply to all pending proceedings wherein right to property allegedly held benami is in dispute between parties and that Section 4(1) will apply at whatever stage the litigation might be pending in the hierarchy of the proceedings (1) Section 4 clearly provides that no suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie by or on behalf of a person claiming to be real owner of such property. This naturally relates to past transaction as well. The expression 'any property held benami' is not limited to any particular time, date or duration. Once the property is found to have been held benami, no suit, claim, or action to enforce any right in respect thereof shall lie. (2) Similarly sub-section (2) of Section 4 nullifies the defences based on any right in respect of any property held benami whether against the person in whose name the property is held or against any other person in any suit, claim or action by or on behalf of a person claiming to be the real owner of such property. It means that once a property is found to have been held benami the real owner is deprived of such a defence against the person in whose name the property is held or any other person. In other words, in its sweep Section 4 (2) engulfs past benami transactions also. (3) When an Act is declaratory in nature, the presumption against retrospectively is not applicable. A statute declaring the benami transactions to be unenforceable belongs to this type. The presumption against taking away vested right will not apply in this case in as much as under

Samundri Devi (1987 (4) S.C.C. 382), it was observed that the aforesaid case was for eviction where the rights of the parties on the date of suit were material unlike in this case where subsequent legislation has nullified for defences of benami holders.

11. Before we deal, with these six considerations which weighed with the Division Bench for taking the view that Section 4 will apply retrospectively in the sense that it will get telescoped into all pending proceedings, howsoever earlier they might have been filed, if they were pending at different stages in the hierarchy of the proceedings even upto this Court, when Section 4 came into operation, it would be apposite to recapitulate the sailent feature of the Act. As seen earlier, the preamble of the Act itself states that it is an act to prohibit benami transactions and the right to recover property held benami, for matters connected therewith or incidental thereto. Thus it was enacted to efface the then existing rights of the real owners of properties held by others benami. Such an act was not given any retrospective effect by the legislature. Even when we come to Section 4, it is easy to visualise that sub section (1) of Section 4 states that no suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other shall lie by or on behalf of a person claiming to be real owner of such property As per Section 4 (1) no such suit shall henceforth lie to recover the possession of the property held benami by the defendant. Plaintiff's right to that effects sought to be taken away and any suit to enforce such a right after coming into operation of Section 4(1) that is 19th May, 1988, shall not lie, The legislature in its wisdom has nowhere provided in Section 4(1) that no such suit, claim or action pending on the date when Section 4 came into force shall not be proceeded with and shall stand abated. On the contrary, clear legislative intention is seen from the words "no such claim, suit or action shall lie" meaning thereby no such suit, claim or action shall be permitted to be filed or entertained or admitted to the portals of any Court for seeking such a relief after coining into force of Section 4(1). In Collins English Dictionary, 1979 Edition as reprinted subsequently, the word 'lie' has been defined in connection with suits and proceedings. At page 848 of the Dictionary while dealing with topic No.9 under the definition of term Tie' it is stated as under

"For an action, claim appeal etc. to subsist, be maintainable or admissible".

The word 'lie' in connection with the suit, claim or action is not defined by the Act, If we go by the aforesaid 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 concerned defendant in whose name the property is held on and from the date on which this prohibition against entertaining of such suits comes into force. With respect, the view taken by that Section 4 (1) would apply even to such pending suits which were 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). It has to be visualised that the legislature in its wisdom has not expressly made Section 4 retrospective. Then to imply by necessary implication that Section 4 would have retrospective effect and would cover pending litigations filed prior to coming into force of the Section would amount to taking a view which would run counter to the legislative scheme and intent projected by various provisions of the Act to which we have referred earlier. it is, however, true as held by the Division Bench that on the express language of Section 4 (1) any right inhering in the real owner in respect of any property held benami would get effaced once Section 4 (1) operated, even if such transaction had been entered into prior to the coming into operation of Section 4(1), and hence-after Section 4(1) applied no suit can lie in respect to such a past benami transaction. To that extent the Section may be retro- spective. To highlight this aspect we may take an illustration. If a benami transaction has taken place in 1980 and a suit is filed in June 1988 by the plaintiff claiming that he is the real owner of the property and defendant is merely a benamidar and the consideration has flown from him then such a suit would not lie on account of the provisions of Section 4(1). Bar against filling, entertaining and admission of such suits would have become operative by June, 1988 and to that extent Section 4 (1) would take in its sweep even past benami transactions which were sought to be litigated upon after coming into force of the prohibitory provision of Section 4(1); but that is the only effect of the retrospectivity of Section 4(1) and nothing more than that. From the conclusion that Section 4 (1) shall apply even to past benami transactions to the aforesaid extent, the next step taken by the Division Bench that therefore, the then existing rights got destroyed and even though suits by real owners were filed prior to coming into operation of Section 4 (1) they would not survive, does not logically follow.