1. This Rule is directed against an appellate order, dated 22-9-1951, upholding an order made by a learned Munsif in a proceeding under Section 26F, Bengal Tenancy Act.
2. The material facts are as follows. On 19-7-1949, 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 22-5-1950, opposite party No. 1 made an application for pre-emption under Section 26F, 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', 53 Cal WN 678 (A).
4. An appeal was taken from the order of the trial court and the appellate Judge seems to have thought that the application under Section 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 uponhimself 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 Sections 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 posi-tion 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. 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 tne transferee of an occupancy holding are subject to the rights of the pre-emptor under Section 26F, 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 Section 26P.
6. 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 Section 26P and the trial Court rightly dismissed it and the appellate Court rightly upheld the order.
7. For the reasons given above, this Rule is discharged. We make no order as to costs.
Sinha , J.
8. I agree.