ADAITA NATH HALDER Vs. KALIPADA HALDER

JUDGEMENT

(1.) This is a second appeal against a judgment and decree passed by the Subordinate Judge at Alipore in his appellate jurisdiction. The Plaintiff is the Appellant. The Plaintiff instituted the suit for specific performance of a contract of reconveyance in respect of the suit lands. The factual position is as follows:

(2.) The Plaintiff sold the property to the Defendant No. 1 and on the same date came to a simultaneous agreement for reconveyance of the suit property by the Defendant No. 1 on the terms embodied in Ext. 3. On such sale by the Plaintiff to the Defendant No. 1, the Defendant No. 2 applied for pre-emption and the application of preemption was allowed. It is further found that the Defendant No. 2 had no actual notice of the agreement of reconveyance at the date when he filed the application for pre-emption, nor had the Defendant No. 2 any constructive notice of the agreement for reconveyance at the date when he filed the application for pre-emption. The question is whether the Defendant No. 2 is bound to reconvey even though there was no contract for reconveyance between the Plaintiff and the Defendant No. 2 or, in other words, whether the Defendant No. 2 is a person who claims under the Defendant No. 1 by a title arising subsequently to the contract and further whether the Defendant No. 2 is a transferee for value who has paid his money in good faith and who has paid his money without notice of the original contract. It is needless to point out that we are referring to Section 27 of the Specific Relief Act. According to Mr. Bose who appears on behalf of the Plaintiff, the Defendant No. 2 is a person claiming under the Defendant No. 1 by a title arising subsequent to the contract and further the Defendant No. 2 is not a transferee for value who paid his money in good faith and who had no notice of the original contract when he paid the money. According to Mr. Bose, under Sub-section (7) of Section 26F of the Bengal Tenancy Act the Defendant No. 2 got the same title as the Defendant No. 1 had, because Sub-section (7) provides as follows:

(3.) Mr. Mukherjee, on the other hand, urges that the Defendant No. 2, the pre-emptor, is not a person claiming under the Defendant No. 1 by a title arising subsequent to the contract. The Defendant No. 2 gets his right of pre-emption not because of any agreement but notwithstanding the absence of such a contract, and only by the statute concerned, (namely, Section 26F of the Bengal Tenancy Act), he was entitled to pre-empt. Therefore, the basis for pre-emption is not any title claiming under the Defendant No. 1, but the basis of his right is independent of the Defendant No. 1 or of the Plaintiff. The Defendant No. 2 merely exercised the right he was granted by the statute and the consequences as under the statute would naturally follow. Therefore, in no sense the Defendant No. 2 is a person claiming under the Defendant No. 1 by a title arising subsequent to the contract. Hence, Mr. Mukherjee says that the Plaintiff has no right to enforce the agreement for specific performance between the Plaintiff and the Defendant No. 1 against the Defendant No. 2. Mr. Mukherjee further contends that as soon as the money was deposited on the date of the application the purchaser Defendant No. 1 was at liberty to withdraw the money and the provision for payment of money is only a mere consequence of an order for pre-emption. That again is not by act of parties but by operation of law. It is not necessary, however, for us in this appeal to go into the matter further because there is a decision of this Court, Sital Chandra Koley v. Mihilal Koley,1954 58 CalWN 1000 wherein it has been held that if at the date of the institution of the proceedings under Section 26F of the Bengal Tenancy Act the pre-emptor had notice, actual or constructive, of the agreement between the purchaser, the Defendant No. 1, and the Plaintiff, the vendor, for reconveyance by the Defendant No. 1 to the Plaintiff, the right of preemption would be defeated or, in other words, the contract for specific performance could be enforced. It is unnecessary for us in the circumstances of this case to go into the merits of the arguments of the learned Advocates for either side, nor it is necessary for us to go into the question whether Sital Chandra Koley v. Mihilal Koley,1954 58 CalWN 1000 was correctly decided by the Division Bench. We may observe that Section 27 of the Specific Relief Act was not at all considered, very probably, it was not urged, because both the parties thought that that section would have no application. Be that as it may, the implication of the decision is that Section 27(b) of the Specific Relief Act would apply provided the pre-emptor had no notice at the date of the application for pre-emption. In the aforesaid case in Sital Chandra Koley v. Mihilal Koley,1954 58 CalWN 1000 there was notice at the date when the application for pre-emption was filed. In the case that we are considering, the final Court of fact has come to the conclusion that the pre-emptor had no notice, actual or constructive, at the date of the application. Therefore, the principle underlying the decision in Sital Chandra Koley v. Mihilal Koley,1954 58 CalWN 1000 has no application to the facts of this case. Their Lordships considered the question of notice with reference to the date of the application and not with reference to the date of the order. We are also aware that there are other decisions of Division Bench of this Court which have been referred to by Niyogi, J, when his Lordship referred the matter to the Division Bench, those decisions may imply a different construction so far as the matter is concerned. Having heard the learned Advocates for both the sides, we do not think that the principle enunciated in the aforesaid case of Sital Chandra Koley v. Mihilal Koley,1954 58 CalWN 1000 should be extended further. Mr. Mukherjee has referred to Section 91 of the Indian Trusts Act and urges us to hold that Section 91 of the Indian Trusts Act affords no ground for giving effect to the arguments of Mr. Bose. We may say incidentally that the aforesaid decision in Sital Chandra Koley v. Mihilal Koley is more or less based on the provision of Section 91 of the Indian Trusts Act. That section is as follows: