Devendra Pal Singh Chauhan, J. - (1.) THE present second appeal involves the matter relating to the doctrine of benami transaction founded on judicial acceptance. Benami is a mask covering the real owner as against the ostensible owner and the person so masked could take it off and appear before the Court as an appropriate person discharging the onus of proving the benami character of the transaction. The plaintiff Hariram Beargava, took off the mask by filing Suit No. 174 of 1982 seeking, in main, the relief for declaration that the transaction in respect of the holding in the village Bhojraj under deed of sale dated 4 -5 -1962 in favour of his wife, Smt. Ram Pyari, was a benami of which he is the real owner in possession. The suit was decreed on 23 -1 -1984 declaring the deed sale in favour of Smt. Ram Pyari as benami as the purchase was made out of the earnings of the plaintiff, who was held to be the real owner in possession thereof. The alternative plea, as set up by the defendant, that in case the purchase was held as benami, then the same may be treated as gift in her favour by way of advancement, was rejected. In appeal filed there against by the defendant, Smt. Ram Pyari, the findings of the trial Court were maintained. The present second appeal is directed against the judgment and decree dated 23 -5 -1984 passed in the aforesaid appeal and the same was admitted on 20 -9 -1984 on the following questions: 1. Whether the suit was barred by Section 49 of the U.P. Consolidation of Holdings Act?
(2.) WHETHER the suit is barred by time? 2. A new legislation known as Benami Transactions (Prohibition) Act, 1988 (for brevity, hereinafter referred to as 'the Act') on having come into force removed the judicial acceptance of benami transaction with a view to help people to keep the property which they were holding for others, with few exceptions, and the right of the real owner which was available hitherto, vanished for ever bringing about complete metamorphosis in the legal position, viz. of the doctrine of benami transaction, by making the benamidar a real owner in law. Learned counsel for the appellant, realising the weakness of his case, did not press the points on which the appeal was admitted. In view of the changed position, he moved an application, accepting the finding that the transaction in question was benami in the name of the defendant appellant, graying for addition of the following questions of law: 1. Whether the plaintiff respondent's suit is burred under Section 4 of the Benami Transactions (Prohibition) Act, 1988? 2. Whether the plaintiff respondent's suit can be decreed under the Benami Transactions (Prohibition) Act, 1988?
(3.) THE questions for consideration, as proposed, were not available to the appellant at the time when the appeal was filed as the Act except the provisions of Sections 3, 5 and 8 came into force on 19 -5 -1989 and the provisions of Sections 3, 5 and 8 came into force on 5 -9 -1988. The second appeal was filed in this Court on 17 -9 -1984.;