P L D 1961 Dacca 512 (PLP)

HAMOODUR RAHMAN, J.

‑This Rule is directed against the appellate order of the 3rd Court of the Subordinate Judge, Bakarganj, affirming the decision of the 5th Munsif, Bakarganj, in Miscellaneous Case No. 69 of 1957.

2. The said miscellaneous case was started on an application under section 96 of the East Bengal State Acquisition and Tenency Act for pre‑emption. The petitioner in the said appli cation claimed as a contiguous owner in respect of one property, and a co‑sharer in respect of another property to pre‑empt the same by reason of the sale thereof by the opposite party No. 2 in the said proceedings on the 6th of March 1957, to the opposite‑party No. 1 therein, who was alleged to be a total stranger.

3. The said application for pre‑emption was resisted by the opposite‑parties therein on the ground that the right to pre‑empt was not available, as the transaction of the 6th of March 1957, was not an out and out sale, but was really a mortgage since on the same date on which the sale deed was executed another agree ment was‑entered into for the reconveyance of the properties, and, in fact, in pursuance of the said agreement, the properties had been re-conveyed to the original vendor before the filing of the application for pre‑emption as evidenced by the endorsement on the back of the deed of conveyance to that effect made on the 29th of Jaistha, 1364 B. S., corresponding to the 12th June 1957.

4. There was no dispute that the claimant for pre‑emption was a contiguous owner in respect of property No. 1 covered by the said deed of conveyance, and a co‑sharer in the property No.

2. The execution of the documents namely, the deed of conveyance Exh. 1, the agreement Exh. B and the endorsement Exh. A (1) on the deed of conveyance were all admitted.

5. The only point therefore; was whether in the circum stances the right to pre‑empt existed. Both the Courts below held that, the first sale was an absolute sale, and, as such, the subsequent agreement to reconvey did not operate to exclude that right.

6. The present Rule is directed against the said decision of the Courts below, and it is contended on behalf of the petitioner that the Courts below were wrong in taking the view that in the circumstances set out above the right to pre‑empt was available to the said applicant for pre‑emption ; firstly, because the tran saction was really a mortgage by way of a conditional sale and not an out and out sale at all ; and secondly, because even if the transaction amounted to a sale with a condition for reconvey ance, the right to pre‑empt did not arise.

7. In respect of the first point it is contended that since the deed of conveyance and the agreement for reconveyance were executed on the same date, both the documents should have been considered together, and their effect ascertained by applying the generally accepted tests for discovering whether the relationship created was really that of creditor and debtor. It is urged that in present case the period fixed for reconveyance was 15 years, and the amount to be paid was the total consideration for the sale. Hence, since the parties were Muslims, the presumption should have been that the transaction was a mortgage and not really an absolute sale.

8. In support of this contention reliance has also been placed on decision of the Oudh Chief Court in the case of Syed Mehdi Husain v. Syed Mohammad Jawad and others (194 I C 470 : A I R 1941 Oudh 417), as also a decision of this Court in the case of Chandra Kanta Hawladar and other v. Rama Prasahna. Ganguly (5 DLR 29).

9. In the latter case the transactions of sale and agreement for reconveyance were contained in the same document which was executed on the 19th of November 1895. In that case, it appears (from page 34 of the reports) that the learned Advocate appearing for the appellants sought to distinguish some of the authori ties relied upon by the other side by pointing out that those authorities dealt with cases where two contemporaneous docu ments had been executed, and not where the agreement for reconveyance was contained in the same document. Whilst con sidering this point Shahabuddin, C. J., as he then was, observed that the principles laid down in the case of Alderson v. White (De G&J 105) and approved of by the Privy Council in the case of Bhagwan Sahai v. Bhagwan Din and others (171 A98) applied equally to the case of one document of sale with condition for re pur chase ; and two documents, one of sale and another of contract for repurchase as a part and parcel of the same transaction, A strong reliance is placed by the learned Advocate for the petitioner upon these observations of his Lordship. But. in my opinion, having regard to the fact the document which their Lordships were construing and the transaction with which they were dealing were both of the year 1895, long before the amend ment of the Transfer of Property Act by the Amending Act XX of 1929, which incorporated the proviso to clause (c) of the said section, the said decision does not assist him. This proviso reads as follows "Provided that no such transaction shall be deemed to be a mortgage unless the condition is embodied in the document which effects or purports to effect a sale." The other decision of the Oudh\Chief Court relied upon by the learned Advocate does not also, in my opinion, for the same reason, assist him, since in that case also the sale‑deed and the agreement for re‑purchases were executed on the 12th of May 1928.

10. The case of Prag Datta and another v. Hari Bhadur and others (A I R 1947 All. 334) is a decision in which only some doubt was expressed as to the exact effect of the incorporation of the proviso. The Division Bench of the Allahabad High Court expressed itself in the following words "On the whole we are somewhat doubtful whether section 58,. T. P. Act, has not in some measure, modified the pervious law but we express no definite opinion because we find it unnecessary to do so, and because we have not heard counsel on the other side." The document of sale which was being considered iii the said case was executed on the 18th of January 1915, and a separate agreement was executed by another document on the same date for reconveyance.

11. On the other hand, in my opinion, the amendment made to section 58, sub-clause (c) by the introduction of the said proviso, although it does not affect transactions entered into prior to the amendment, must be held to take effect intention of the, parties with regard to the transactions entered into after the said date. The rule laid down in the proviso is, in my view, a rigid one, and in case of transactions entered into after the said amendment, as in the present case, there can be no scope for the argument that notwithstanding the said amendment, it is open to the Court still to consider the true intention of the parties even where the condition for re‑transfer is embodied in a separate document.

12. The only decision in which a contrary view appears to have been taken is in the case of Ramanarayan Ramrakh v. Ramratan Radhakishan (A I R 1934 Nag. 18). In this case Niyogi, J., sitting singly, seemed to have held the view that the proviso cannot be inter preted as laying down any rigid rule, that if the agreement for sale and the covenant for re‑purchase are embodied in more than one document the inference of a mortgage would not neces sarily arise. This view, however, appears to have not been followed even by the same High Court in subsequent cases. Thus in the case of Samsherkhan Banekhan v. Vithaldas Dwarkadas and another (A I R 1946 Nag. 264), the observations of Niyogi, J., were not approved of by a Division Bench consisting of Pollock and Sen, JJ., and was considered merely to be an obiter. According to the Division Bench, the meaning of the proviso was that "Though transanction may in fact have been a mortgage, yet, when the condition of re‑sale is not embodied in the document that effects or purports to effect the sale, then the transaction cannot be treated as a mortgage." I am in entire agreement with this view which I find to be support ed also by several decisions and several other High Courts (Vide Ma Soin Nyo and another v. Maung San Pe and another (A I R 1935 Rang. 212), Kasturi Venkata Subbarao v. Bikkina Veeraswami (A I R 1946 Mad. 456), Jaggannath Singh and others v. Butto Krishto Roy (A I R 1947 Pat. 345), Neri Mal v. Mst. Sharifan and another (A I R 1949.Al1. 194) and Rechuri Suryaprakasa Rao and others v. Gottumukkala Venkatraju and others (A I R 1953 Mad. 830).

13. The learned Advocate for the petitioner then relied upon a decision of the Calcutta High Court in the case of Sital Chandra Koley and another v. Mihilal Koley and others (58 C W N 1000), where one of the I‑earned Judges of a Division Bench which decided the said case observed that "The agreement of re‑sale creates some sort of a fiduciary relationship between the parties, to the benefit of which the, original transferor will be entitled. So long as the agreement remains enforceable in law, and this fiduciary relationship or the benefit thereof which arises simultaneously with the agree ment for re‑sale and, therefore, simultaneously with the transfer too, and is available against a transferee with notice, is not affected by section 26‑F of the Bengal Tenancy Act."

14. The actual question, however, that had to be decided in that case‑ was whether even after pre‑emption the agreement for re‑sale was still enforceable or not, and it was held that the pre‑emptor who takes a pre‑emption order or, at any rate, institutes his pre‑emption proceedings with notice of an agree ment for re‑sale, prior to or contemporaneous with the sale in question and otherwise valid and enforceable in law, is bound by the same and cannot resist its enforcement. The question as to whether the right of preemption itself was available in such circumstances or not, did not fall to be considered before this Division Bench. Indeed, at page 1008 the Division Bench itself made it very clear that it was in no way doubting the decision of the Calcutta High Court, to which I shall presently refer, where it had been decided that the existence of contem poraneous agreement for re‑sale does not necessarily preclude the application under section 26‑F of the Bengal Tenancy Act. This decision therefore, does not also assist learned Advocate.

15. It appears that in the case of Tarapada Karati v. Sudhamoy Doulvi and others (53 CWN 678) a similar argument was advanced before Chakraborti, J., as he then was, and it was argued that a sale contemplated by section 26‑F of the Bengal Tenancy Act was an absolute sale, and a transaction of a sale of an occu pancy holding on the 13th of August 1946, with a contempora neous oral agreement subsequently reduced into writing on the 23rd of September 1946, was not a sale of the kind contemplated under section 26‑F of the Bengal Tenancy Act, Chakraborti, J., repelled this argument on the ground that even if the transaction could be construed as a sale with an agreement to re‑convey, it did not exclude the application of section 26‑F of the Bengal Tenancy Act. If it was allowed to do so then in his opinion, the position would be that a party could at his will suspend the operation of a statute. The interest in the property passed by the sale, and what remained was merely a right to obtain a re‑conveyance or, in other words, a right under a contract for sale. The latter right could not be treated as a right in the property itself, and, hence, the pre‑emption could not be resisted.

16. The same learned Judge in the case of Nishi Kanta Das 1 v. Jnanendra Nath Mondal and others (57 CWN 253), presiding over a Division Bench of the Calcutta High Court as the Chief Justice re‑armed his previous decision. The Division Bench this time was more definite, and expressed itself to the effect that the argument was no answer to .the application of section 26‑F of the Bengal Tenancy Act.

17. I am in agreement with this view. This disposes of both the contentions of the applicant before me. The case reported in 58 C W N 1000 does not, in my opinion, assist the learned Advocate for two further reasons ; firstly because the alleged reconveyance, if any cannot, in the present case, be treated as an effective reconveyance for it is not a reconveyance by a registered document, but has been sought to be effected only by an endorsement on the back of the original kabala for sale. This cannot, therefore, be admissible in evidence or treated as a reconveyance: 'Secondly, because, if this reconveyance is no effective, the position in law is, as pointed out in the decision o Chakraborti, J., in 53 C W N 678, that the sale is complete, and the right of the pre‑emptor to pre‑empt arises upon the stale; and the agreement for reconveyance cannot affect that right, for, it is not a right in property. In these circumstances, I see no reason to interfere with the decision of the Courts below, and this Rule is accordingly discharged with costs. K. B. A. Rule discharged.