ASHWINI KUMAR KARMAKER Vs. HARI MOHAN

JUDGEMENT

(1.) These two appeals have come before us by special leave and they have been heard analogously since a common question of law is involved therein. The question is whether the question of benami transaction can be gone into and determined in a proceeding for pre-emption under section 96 of the State Acquisition and Tenancy Act, 1950. In both the cases, learned respective Judges of the Single Bench of the High Court Division answered the question in the negative and allowed the pre-emption sought for. Consequently, pre-emptees are the appellants before us.

(2.) Civil Appeal No. 103 of 1982 arises from Civil Revision No. 1147 of 1980 which, is its turn, originated, from Misc. Case No. 72 of 1973 of the Court of Munsif, Noakhali. Respondent No. 1 claimed in that case pre-emption of the transfer made under a registered kabala dated 22 December, 1972 alleging that the vender-respondent No. 2 sold the land to the appellant, a stranger, without serving any notice upon him although he was his co-sharer in the holding by inheritance. The appellant contested the Pre-emption case alleging that no transfer took place under the said kabala (Ext. 1) but this kabala was executed only to clear his title in the land which he had purchased in the benami of his nephew, respondent No. 2, under a previous kabala dated 24 October 1970 (Ext. 2) from respondent No. 6. The trial court rejected the claim of "benami" under the previous kabala holding that the question could not be entertained in a pre-emption case and taking subsequent kabala as one effecting actual transfer of the land, allowed the pre-emption. The lower Appellate Court however held that the question of benami could be determined in a pre-emption case and dismissed the application for pre-emption after reversing the trial Courts order. A learned Single Judge of the High Court Division interfered, in revision, with the Order of the Subordinate Judge, and restored the trial Court's Order.

(3.) Miah Abdul Gafur, learned Advocate for the appellant, contends that the view taken by the learned Single Judge of the High Court Division is not correct and argues that the question of benami nature of a transaction falls within the scope of an enquiry under section 96. In support of this contention he has relied upon a decision of the Calcutta High Court reported in Balai Chand Mondal Vs Nivaran Chandra Das, 51, CWN, 644. We have perused the judgment in the case, but find that it is not helpful to the instant case There, the vendor himself resisted the application for pre-emption taking the ground that he did not transfer the land to the ostensible purchaser, his nephew, but he simply executed the kabala without consideration in favour of his nephew making a "show of transfer in order to put away his creditors". The court found that no actual transfer took place under the kabala sought to be pre-empted and that the vendor remained all along in possession of the land and as such the question of pre-emption could not arise. This colourable transaction was referred to as a benami transaction in the Pre-emption case and it is in such a case of benami where no actual transfer took place that the question of benami nature of transaction could be considered in a proceeding for pre-emption under section 26F of the Bengal Tenancy Act. In the instant case, facts are altogether different. Here we find two kabalas in respect of the same land. The earlier one shows transfer of the land from respondent No. 6 to respondent No. 2. This Kabala was not sought to be pre-empted. The kabala sought to be pre-empted in the later one, which shows that respondent No. 2 transferred the land to the appellant, Respondent No. 1 Pre-emptor is a co-sharer of respondent No. 2 by inheritance, and as such, he got right to pre-empt the land. In the proceeding for pre-emption the Court is not required to entertain the question whether the respondent No. 2 the vendor was benamdar of the appellant in the previous transaction. Pre-emption is found to have been rightly allowed to respondent No. 1. The appeal is liable to be dismissed