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Civil Rule No. 1325 of 1966, decided on 25th July 1967.

‑Pre‑emption‑Conveyance of land by one co‑sharer to stranger with contemporaneous agreement to re‑convey land under appropriate circumstances‑Such agreement cannot defeat right of pre‑empting co‑sharer‑‑‑Pre‑empting co‑sharer will take land subject to agreement of re‑conveyance if he had notice of such agreement prior to pre‑emption application but not otherwise-- Re‑conveyance of land to original transferor after filing of pre emption application‑Does not defeat pre‑emption.

An agreement to re‑convey the land, given under appro priate circumstances, may be enforced, independently, as an agreement against the promisor. If there is a conveyance of land by a co‑sharer to a stranger and contemporaneously there is an agreement for its re‑conveyance, it is an agreement between the latter and the former. The agreement would stand good, but it cannot operate to defeat the right of the pre‑empting co‑sharer who will take the land subject to the agreement to re‑convey the same, if the pre‑empting co‑sharer had notice of the agreement prior to his application for pre‑emption. If the pre‑empting co‑sharer was aware of the agreement of re‑conveyance, the pre‑emption will be allowed subject to the agreement for re‑conveyance of the land, that is to say, the original co-sharer can make the pre‑empting co‑sharer transfer the land to him on re‑payment of the loan unless other wise prevented by other considerations. In no case however, such a re‑conveyance would be allowed to defeat an application for pre‑emption under section 96 of the Act, if such a re‑conveyance was effected on an alleged agreement to that effect, after the application for pre‑emption had been filed against the pre‑empting co‑sharer. In such a case the agreement for re‑conveyance cannot be enforced because the application for pre‑emption was made at a time when he had no notice of the re‑conveyance.

Nishi Kanta Das v. Jananendra Nath Mondal and others 57 C W N 253 ; Tarapada Karati v. Sudhamoy Dolui and others 53 C W N 678 and Abdus Sattar Malik v. Yunus Malik and others L D 1961 Dacca 512 fol.

Md. Yahya for Petitioners.

Zinnur Ahmed for the Opposite‑Party No. 6.

This application raises a rather important point of law. Petitioners claim to be co‑shares in respect of a piece and parcel of land of which opposite‑parties Nos. 1 to 5, namely, (1) Md. Masim Ali Gazi, (2) Md. Mikhtar Gazi, (3) Md. Sattar Gazi, (4) Md. Abdul Majid Gazi and (5) Md. Moksed Gazi are the purchasers. Opposite‑party No. 6, Md. Ali Gazi is the co‑sharer who made the transfer of the land, which is the subject‑matter of this application. Opposite‑party No. 7 Habibur Rahman Gazi is only a pro forma opposite‑party. Petitioners claimed to be co‑sharers in respect of a holding recorded in S. A. Khatian No. 73 of Mouza Arang Ghata. Opposite‑parties Nos. 6 and 7 are their co‑sharers. Opposite- party No. 6 transferred, 33 acres of land in respect of the aforesaid holding to opposite‑parties Nos. I to 5 for a sum of Rs. 1,000 by a registered kabala dated 14‑5‑64. Thereupon, petitioners who are admittedly co‑sharers in respect of the aforesaid holding filed an application under section 96 of the East Bengal State Acquisition and Tenancy Act for pre‑emption of the aforesaid land. The application was made on 12‑9‑64. Petitioners deposited the consideration money and the ancillary costs amounting to Rs.1,100. During the pendency of the aforesaid application by petitioners, opposite‑party No. 6 to whom the suit‑land was conveyed re-conveyed the same to the original transferors, namely, opposite‑parties Nos. 1 to 5.

Petitioner's application for pre‑emption was resisted by opposite‑parties Nos. 1 to 5 on the ground that the transaction in question was a loan which was obtained against the security of the aforesaid suit‑land. It is alleged that there was an oral agreement between the parties that the suit‑land would be re‑conveyed to opposite‑parties Nos. 1 to 5 on re‑payment of the loan that is, the consideration for the sale. It is said that the opposite‑party No. 6 re‑paid the loan and obtained re‑conveyance of the suit‑land on the 22nd Bhadra, 1371 B. S. which corresponds to the latter part of September 1964.

Subsequently, opposite‑parties Nos. 1 to 5 executed a kabala in favour of opposite‑party No. 6 on the 8th Sraban, 1371 B. S. It was, therefore, contended that the application could not be maintained. The application was under the East Bengal State Acquisition and Tenancy Act, 1950 which was tried by a Munsif at Satkhira, who allowed the same.

Against the order passed by the learned Munsif an appeal was preferred by the transferor co‑sharer as well as by the purchaser. The appeal was heard and disposed of by a Subordi nate Judge of Khulna. The learned Subordinate Judge reversed the order passed by the learned Munsif and allowed the appeal. He came to a finding that the transaction between the parties was, in fact, a loan to cover which the transference to the purchaser (namely opposite‑party No. 6 Md. Ali Gazi) was made by way of a mortgage. He, therefore, disallowed the application;

Being aggrieved by the order passed by the appellate Court below, petitioners, who made the application under sec tion 96 of the East Bengal State Acquisition and Tenancy Act, J950 (hereinafter referred to as the Act), obtained the present Rule calling upon the opposite‑parties to show cause why the order passed by the appellate Court below should not be set aside and why the application made by the petitioners should not be allowed.

At the hearing of this Rule, I had the advantage of hearing arguments by the learned lawyers appearing for the parties. It seems to me that it is important to remember certain dates, having regard to the fact that it is admitted that petitioners are co‑sharers of opposite‑parties Nos. I to 5 who are co‑sharers. The suit‑land, which consists of '33 acres of land, was transferred to opposite‑party No. 6 on 14‑5‑64. Petitioners filed an application under section 96 of the Act, on 12‑9‑64. During the pendency of the aforesaid application, opposite‑pasties Nos. 1 to 5, i.e. the transferees in the original sale transferred the disputed land to opposite‑party No. 6 by a kabala dated 24‑9‑64. Therefore, the re‑conveyance was made during the pendency of the application for pre‑emption under sec tion 96 of the Act.

It has been contended on behalf of the petitioners that the subsequent re‑conveyance during the pendency of the aforesaid application cannot be allowed to frustrate the said application for pre‑emption, because section 96 of the Act confers a right upon a co‑sharer to ask for pre‑emption under the transfer of such land by a co‑sharer. It has been further argued that even if it is found that by a contemporary oral agreement the original transferor and transferee had agreed upon a re‑conveyance of the land in question, the transaction cannot be construed as mortgage because of the fact that the original document of conveyance did not incorporate the agree ment with regard to the re‑conveyance. The amended provision of the Transfer of Property Act imposes an embargo upon construing such a transaction to be a mortgage if the agreement for re‑conveyance is not incorporated in the original deed of conveyance. It cannot, therefore, be argued, in the absence of an agreement incorporated in the document of transference, that an agreement of re‑conveyance would constitute the original conveyance to be a mortgage. This is clear enough and it is well‑settled by authorities.

My attention was drawn by the learned Advocate for the petitioners to the decision of the Calcutta High Court in the case of Nishi Kanta Das v. Jananendra Nath Mondal and others (57 C W N 253), where the facts are to the following effect : On July 19, 1949, petitioners sold '49 acres of land to one B, but the kabala was made in the names of the sons of the transferee. This kabala was registered on the same day. On May 15, 1950, the property was re‑sold by the transferee to the petitioner. On May 22, 1950, opposite‑party No. 1 filed an application for pre‑emption under section 26‑F of the Bengal Tenancy Act. It was held that the entire right, title and interest in the property passed to B 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. All subsequent transfers by the transferee of an occupancy holding are subject to the right of the pre‑emptor under section 26‑F of the Bengal Tenancy Act.

The aforesaid case throws some light on the point which has been mooted before me.

The next case cited by him is the case of Tarapada Karati v. Sudhamoy Dolui and others (53 C W N 678).

Both the cases mentioned above, are authorities for the proposition that if there is a transfer of a land by a co‑sharer the application for pre‑emption by another co‑sharer cannot be defeated by subsequent re‑conveyance of the land by the original co‑sharer.

I would, however, like to add that a transaction of the nature which is disclosed by the facts of this case cannot be construed as a mortgage. But the question whether an agreement to re‑convey can be enforced as an agreement between the parties is distinct from the question whether the transaction would amount to a mortgage.

In the case of Abdus Sattar Mallik v. Yunus Mallik and others (P L D 1961 Dacca 512) it was held that a sale with an agreement to re convey could not exclude the application of section 26‑F of the Bengal Tenancy Act. The facts and circumstances were somewhat different from those which arise in the present case.

It appears to me that the relevant law in a situation which has been indicated above, would be, that the sale and agreement to re‑convey would not amount to mortgage having regard to the express language of the amended Transfer of Property Act.

However, an agreement to re‑convey the land given minder appropriate circumstances, may be enforced independently, as in agreement against the promisor. If there is a conveyance of land by a co‑surer to a stranger and contemporaneously there is an‑agreement for its re‑conveyance, it is an agreement bet ween the latter and the former. The agreement would stand good, but it cannot operate to defeat the right of the pre empting co‑sharer who will take the land subject to the agreement to re‑convey the same, if the pre‑empting co‑sharer had notice of the agreement prior to his application for pre‑emption. If the pre‑empting co‑sharer was aware of the agreement of re‑conveyance, the pre‑emption will be allowed subject to the agreement for re‑conveyance of the land, that is to say, the original co‑sharer can make the pre‑empting co‑sharer transfer the land to him on re‑payment of the loan unless otherwise prevented by other considerations. In no case, however, such a re‑conveyance would be allowed to defeat an application for pre‑emption under section 96 of the Act, if such a se‑conveyance was effected on an alleged agreement to that effect, after the application for pre‑emption had been filed against the pre‑empting co‑sharer. In such a case the agreement for re‑1 conveyance cannot be enforced because the application fore pre‑emption was made at a time when he had no notice of the re‑conveyance. In the present case before me the Rule was issued on a limited point, i.e. whether petitioners have a right to succeed in their application for pre‑emption under section 96 of the Act.

For reasons which I have stated above, I am of opinion that the petitioners are entitled to successfully maintain the said application.

The Rule is, therefore, made absolute without any order as to costs.

S. A. H.

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