TARAPADA KARATI Vs. SUDHAMOY DOLUI AND ORS

JUDGEMENT

(1.) This Rule was issued at the instance of a person, who may be described accurately enough as a second transferee of an occupancy holding.

(2.) It appears that a lady named Menaka Bala Dasi had a one-third share in a certain occupancy holding and on Aug. 13, 1946, she sold her share to one Nirapada Dolui for a consideration of Rs. 500. It is said that prior to the sale or at the time of the sale there was an agreement that if the lady paid back the amount of the consideration together with interest at 8 per cent. per annum within a certain period of time, the purchaser would be bound to reconvey the property to her. This agreement which was oral at the beginning is said to have been reduced to writing on Sept. 23, 1946. It appears that the lady did pay back the money and Nirapada executed a reconveyance on Oct. 17. Menaka Bala Dasi entered into an agreement for sale with the Petitioner with respect to the very property-the agreement being that she would sell her share to the Petitioner for Rs. 900. The actual sale took place on Oct. 23 following.

(3.) The present application for pre-emption was made on Nov. 8, 1946, and the applicant for pre-emption sought to preempt not the second sale to the Petitioner, nor the reconveyance to Menaka Bala Dasi, but the original sale by Menaka Bala Dasi to Nirapada Dolui. The application was resisted on two grounds. It was urged in the first instance that the transaction between Menaka Bala Dasi and Nirapada Dolui was not a sale at all, but a mere mortgage by conditional sale. It was urged in the second place that in any event, there was no absolute sale in favour of Nirapada Dolui, but a sale burdened with an agreement to reconvey, and that in view of that limitation on the sale sec. 26F of the Bengal Tenancy Act could not be applicable. Both the Courts below have overruled these contentions and Mr. Lahiri who appears on behalf of the Petitioner did not press the first objection further. What he argued was that a sale contemplated by sec. 26F of the Bengal Tenancy Act was an absolute sale and that a sale like the one in the present case, where the vendor retained a right to obtain a reconveyance of the property was not an absolute sale as contemplated by sec. 26F.