P L D 1964 Supreme Court 861 (PLP)

S. A. RAHMAN, J. This is an appeal by special leave, arising out of a petition made by the first respondent, Sm. Mani Kuntala Debi, to the Munsif, Fourth Court, Patya, under section 26-F of the Bengal Tenancy Act, 1885, to pre-empt the sale of an occupancy raiyati holding, said to have been effected by one Ashalata Guha, in favour of the appellant. The application succeeded in the Court of first instance and an appeal taken to the Second Court of Subordinate Judge, Chittagong, by the present appellant failed. A civil revision petition presented by the appellant in the High Court at Dacca was summarily dismissed. Two documents were executed by Ashalata Guha, one purporting to be a lease-deed for a premium of Rs. 800 and an annual rent of Rs. 1-8-0, in favour of the appellant, and the other, ostensibly a sale-deed pertaining to the rent-receiving interest of the vendor, for a consideration of Rs. 48, in favour of the second respondent who is the real brother of the appellant. The case for the first respondent in the Courts below was that the transaction was in reality a sale of the occupancy tenancy held by Ashalata Guha, in favour of the appellant alone, but in order to defeat her right of pre-emption as a co-sharer and with a view to avoid the necessity for an income-tax clearance certificate and the permission of the Collector, the transaction was split up into two parts. A transfer by way of lease is exempt from the incident of pre-emption under section 26-F of the Bengal Tenancy Act. The second respondent pleaded complete ignorance of the whole transaction and dissociated himself from the sale-deed of the rent-receiving interest. He alleged that this document had been fabricated without his knowledge. The appellant pleaded that he had nothing to do with the kabala, evidencing the sale of the rent-receiving interest, and that he had merely taken a lease of the property in dispute. The Courts below have recorded concurrent findings to the effect that the land in dispute constituted an occupancy tenancy and, therefore, fell within the purview of the Bengal Tenancy Act, that though ostensibly there were two deeds executed by Ashalata Guha in favour of the appellant and his brother, they in reality constituted one transaction of sale of the occupancy tenancy in favour of the appellant alone, and that, therefore, the sale was subject to pre-emption. In this connection, it was pointed out that the two documents were written on the same day in the same sitting by the same scribe and that though the attesting witnesses to the two documents were different and different dates were put on them, the stamps for them had been purchased on one day and they were registered on the same date, having been presented by Ashalata Guha herself and that the total consideration for the two deeds proceeded from the appellant alone. The foundation was thus well and truly laid for the contention that the appellant had camouflaged the transaction in his favour by splitting it up into two deeds, one of lease and the other for the transfer of the rent-receiving interest. No good ground has been made out for disturbing the concurrent findings of fact arrived at in this case by the Courts below. The main point urged before us by Mr. Abu Muhammad Abdulla, on behalf of the appellant, was that section 91 of the Evidence Act precluded the Court from travelling beyond the lease-deed in favour of his client, in an attempt to spell out the actual contract between the parties. The argument appears to be based on a misconception of the true scope of section 91 of the Evidence Act. This provision enacts that "when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained". Learned counsel apparently thinks that a transaction such as is contemplated by this provision can only be evidenced by a single document. That this is not so is clear on a reference to Explanation 1 and the illustrations appended to this section. If the contract inter partes is in fact contained in more than one document, section 91 of the Evidence Act would not stand in the way of the Court construing the relevant documents together. By merely resorting to the device of splitting up a transaction into two parts and executing two separate documents therefor, the nature of the transaction cannot be changed. Here, the respondents' contention being that the real contract could only be determined on a perusal of the lease-deed and the kabala together, it would be begging the question to suggest that this would offend against the provisions of section 91 of the Evidence Act. The whole contract being embodied in two documents, they have to be read together to arrive at the real agreement between the parties. Apparently, the kabala was in favour of the appellant's brother and the lease-deed alone was executed in his favour. The finding has, however, been given, based on good evidence, that the name of the appellant's brother in the kabala had been inserted benami and the real vendee was the appellant himself. The proof of this fact again in no way contravenes any provision of section 91 of the Evidence Act. Mr. Abu Muhammad Abdullah then suggested in the alter-native that the first respondent could only pre-empt the sale of the rent-receiving interest, leaving the lease rights of the appellant intact, so that the latter could become a tenant under the pre-emptor. This is a fallacious argument. The transfer being of the' occupancy raiyati tenancy in favour of one and the same person, though evidenced by two documents, the rights claimed under them merged together, so that there is a single sale of the occupancy tenancy. It is not contested that the respondent as a co-sharer in the holding out of which the occupancy tenancy was sold, is entitled to pre-empt this sale under the relevant law. The appeal is misconceived and is hereby dismissed with costs. A. H. Appeal dismissed.