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Nishi Kanta Das v. Jnanendra Nath Mondal And Ors. Opposite Parties.
Structured Summary of the Opinion — Chakravartti, C.J.
Factual and Procedural Background
The Rule under consideration attacked an appellate order dated 22 September 1951 which had upheld an order made by a learned Munsif in proceedings under Section 26F of the Bengal Tenancy Act.
Material facts set out in the opinion:
- On 19 July 1949 the petitioner sold 49 decimals of land to one Bhudeb, but the "kobala" (sale document) was made out in the names of the transferee's sons and was registered the same day.
- On 15 May 1950 the property was (allegedly) resold by the transferee to the petitioner.
- On 22 May 1950 opposite party No. 1 applied for pre-emption under Section 26F of the Bengal Tenancy Act.
- The petitioner objected, contending (a) that the transaction was really a mortgage disguised as a sale because Bhudeb was not a registered money-lender, and (b) that possession had never been parted with and, since title had been reconveyed, an application for pre-emption could not lie after such reconveyance.
- The trial Court overruled the petitioner's objections, relying mainly on a prior decision referred to in the opinion. An appeal was taken from the trial court's order, and the appellate Judge felt bound by the precedent relied upon by the trial court; the appellate Judge nevertheless expressed reasons why he thought the application should have failed.
Legal Issues Presented
- Whether the transaction between the petitioner and Bhudeb ought to be treated as a mortgage (conditional sale) rather than a sale, given the asserted concealment because Bhudeb was not a registered money-lender.
- Whether an application for pre-emption under Section 26F of the Bengal Tenancy Act is barred or affected where possession was not parted with and a reconveyance (or agreement for reconveyance) occurred after the transfer.
- Whether any equitable right said to arise from continued possession or from an agreement for reconveyance can defeat the pre-emptive rights of a co-sharer or opposite party under Section 26F.
Arguments of the Parties
Petitioner's Arguments
- The sale to Bhudeb was in substance a mortgage: the transaction was given the form of a sale because Bhudeb was not a registered money-lender and thus could not represent himself as a lender of money on interest.
- Possession of the property was never parted with by the petitioner and title had been reconveyed; therefore, an application for pre-emption could not be maintained after such reconveyance.
The opinion does not contain a detailed account of opposing party arguments beyond the fact that opposite party No. 1 made an application for pre-emption under Section 26F.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Tarapada Karati v. Sudhamoy Dolui (1) (53 C.W.N. 678) | The precedent was relied upon by the trial Court to reject the petitioner's objections to the pre-emption application; it governed the legal treatment of the transaction and pre-emption rights. | The trial Court relied mainly on this decision in overruling the petitioner's objections; the appellate Judge felt himself bound by it; the Chief Justice held the case fell to be governed by that decision and applied it in disposing of the Rule. |
Court's Reasoning and Analysis
The Court examined the petitioner's contentions and the appellate Judge's reasons and proceeded as follows:
- The appellate Judge had suggested an equitable right of the petitioner against the transferee to have the property reconveyed, on the basis that possession had never been parted with. The Chief Justice observed that if the learned Judge was thinking of Section 53A of the Transfer of Property Act he should have referred to its terms, which require a written agreement — and in the present case any term for reconveyance was not incorporated in the original deed of sale.
- The Chief Justice noted the learned Judge did not treat the transaction as a mortgage by conditional sale because no provision for reconveyance was incorporated in the deed. The Judge's references to the Trusts Act and to possible equitable claims did not, in the Chief Justice's view, alter the consequence that the petitioner had no interest left after the sale.
- Even assuming there was a verbal agreement for resale, the Chief Justice explained that such an agreement (and even a later written agreement) could not confer any interest in land. Therefore, once the transfer to Bhudeb (in the names of his sons) took effect, the petitioner's entire right, title and interest had passed away.
- The Court emphasized the settled principle that all subsequent transfers by a transferee of an occupancy holding are subject to the rights of the pre-emptor under Section 26F of the Bengal Tenancy Act. Consequently, the possibility of an equitable claim between the petitioner and his transferee could not affect the right accruing to opposite party No. 1 under Section 26F.
- Applying the prior decision cited, the Chief Justice concluded there was no valid answer to the application under Section 26F; the trial Court's reliance on the precedent was appropriate and the appellate Court was correctly bound thereby.
Holding and Implications
HOLDING: The Rule is discharged; the appellate order upholding the learned Munsif's order in the proceedings under Section 26F of the Bengal Tenancy Act is sustained.
Implications and direct effects:
- The petitioner's challenge to the appellate order fails and the appellate Court's upholding of the trial Court's order stands.
- The Court held that equitable claims based on continued possession or alleged agreements for reconveyance (absent the requisite written terms) do not defeat the statutory pre-emptive rights under Section 26F once title has passed to the transferee.
- No new legal principle was established; the decision was governed by an existing precedent cited in the opinion.
- The Court made no order as to costs.
Judge concurring: Sinha, J. agreed with the opinion.
Chakravartti, C.J:— This Rule is directed against an appellate order, dated September 22, 1951, upholding an order made by a learned Munsif in a proceeding under sec. 26F of the Bengal Tenancy Act.
2. The material facts are as follows. On July 19, 1949, the petitioner sold 49 decimals of land to one Bhudeb, but the kobala was made out in the names of the sons of the transferee. This kobala was registered on the same day. On May 15, 1950, the property was resold by the transferee to the petitioner. On May 22, 1950, opposite party No. 1 made an application for pre-emption under sec. 26F of the Bengal Tenancy Act.
3. The objection taken on behalf of the petitioner appears to have been that although the transaction between him and Bhudeb had been given the form of a sale it was really a mortgage; but the appearance of a sale had been given because Bhudeb was not a registered money-lender and consequently he could not represent himself as a lender of money on interest. It was further contended that, in any event, since possession of the property had never been parted with and the title had been reconveyed, no application for pre-emption could lie after such reconveyance had taken place. The trial Court overruled these objections, relying mainly on a decision of myself in Tarapada Karati v. Sudhamoy Dolui (1) (53 C.W.N 678).
4. An appeal was taken from the order of the trial court and the appellate Judge seems to have thought that the application under sec. 26F was liable to be dismissed, but he was powerless to give effect to his view because he was bound by the decision of this Court on which the trial court had relied. The learned Judge took upon himself the responsibility of giving a number of reasons why he thought the application ought to have failed. In the first instance he deals with what he considers to be an equitable right of the petitioner as against the transferee to have the property reconveyed to him. The basis of that right, according to the learned Judge, was that possession had never been parted with. It is not very clear to me what the learned Judge was thinking about. If he was thinking about sec. 53(A) of the Transfer of Property Act at all, he might have referred usefully to the terms of that section and if he did so, he would have discovered that that section required an agreement in writing. In the present case, admittedly, the term for a reconveyance of the property, if any such term had ever been agreed to at all, was not incorporated in the original deed of sale. It is, therefore, not clear how the possession of the petitioner could have been made the basis of any equitable right, apart from the question that no equity could relieve against a statute.
5. The learned Judge has not held that the transaction should be treated as a mortgage by conditional sale and he could not have held so, because no provision for reconveyance was incorporated in the deed of sale itself. But he speaks of the Trusts Act, though he concedes that if the application for pre-emption had been made before the reconveyance, the petitioner could not have resisted it. According to him, however, the position has been altered by reason of the reconveyance and at the present stage, according to him, serious questions will arise as between the petitioner and opposite party No. 1, because on the one hand the petitioner might rely upon his equitable right to possession against the transferee and seek to assert the same right against opposite party No. 1, who might be treated, according to the learned Judge, as standing in the transferee's shoes.
6. I do not see why anybody should complicate a simple matter by introducing confusions of that kind. The clear position is that after the petitioner had made the sale on July 19, 1949, he had no interest in land left in him. Even assuming that there was a verbal agreement for resale, which the learned Judge thinks there was, such an agreement or even a written agreement could not confer any interest in land. The position, therefore, was that the entire right, title and interest in the property had passed to Bhudeb in the names of his sons and the moment such transfer of interest took place, the right of the co-sharers to apply for pre-emption arose. It is well settled that all subsequent transfers by the transferee of an occupancy holding are subject to the rights of the pre-emptor under sec. 26F of the Bengal Tenancy Act. It is, therefore, not clear how the learned Judge could have thought that any question as between the petitioner and his transferee arising out of the agreement for reconveyance or the reconveyance itself, could affect in any way the right arising to opposite party No. 1 under sec. 26F.
7. In my opinion, the case is a clear one and falls to be governed by the decision to which I have already referred. There is really no answer to the application under sec. 26F and the trial Court rightly dismissed it and the appellate Court rightly upheld the order.
8. For the reasons given above, this Rule is discharged. We make no order as to costs.
Sinha, J.:— I agree.
A.K.D.G
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