Bamacharan Dhar vs Sabita Rani Basu

P.N. Mookerjee and A.N. Chakrabarti, JJ.—This Rule was obtained against an order of the learned Subordinate Judge, Murshidabad, allowing the opposite party Plaintiff to prove that the disputed transaction, which was evidenced by a deed of sale and an agreement for reconveyance, was in substance a loan as contemplated in the Bengal Money Lenders Act for the purpose of enabling her to file and prosecute the present suit u/s 36 of the said Act.

The learned Subordinate. Judge has taken the view, overruling the Petitioner''s objection on the point, that even though there are two documents, a deed of sale and an agreement for reconveyance, the Plaintiff would be entitled to prove the nature of the transaction and to show that it was in substance a loan for the purposes of the above Bengal Money Lenders Act in spite of Section 58C of the Transfer of Property Act. His view on the point was supported by him by, inter alia, a reference to the decision of this Court in Manindra Nath Bose v. Narendra Krishna Mitra ILR (1956) Cal. 59 and he distinguished the Supreme Court cases cited before him u/s 58C of the Transfer of Property Act.

The above matter in issue appears to have been considered more elaborately by this Court in the light of the said Supreme Court decisions and the earlier decision of this Court referred to in the preceding paragraph, in its recent decision in Banku Behari Chandra Vs. Sm. Kalyani Debi, , and this latter decision plainly supports the view-point of the learned Subordinate Judge.

This was not disputed by Mr. Banerjee who appears for the Petitioner in this case. But Mr. Banerjee drew our attention to an earlier decision of this Court in Manna Lall Jhunjhunwalla Vs. Sm. Manbhouti Debi, in support of his contrary submission. Apart from the fact that the said decision is a decision of a learned single Judge of this Court and the decision in Manindra Nath Bose v. Narendra Krishna Mitra ILR (1956) Cal. 59 is a Bench decision to which the same learned Judge was a party; it is obvious that the said decision in Manna Lall Jhunjhunwalla Vs. Sm. Manbhouti Debi, is clearly distinguishable on facts. In this view, we do not think that the said decision presents any obstacle either to the view of the learned Subordinate Judge or to the view taken by this Court in any of its above two decisions cited earlier.

We would, accordingly, hold that the learned Subordinate Judge took the correct view in the matter and his decision should be affirmed.

The Rule, accordingly, fails and it is discharged. There will be no order for costs in this Rule.