Law: Transfer of Property Act (IV of 1882)

Section: S. 58 (c)

(a) Transfer of Property Act (IV of 1882), S. 58 (c) proviso------ Meaning and effect of proviso.   The meaning of the proviso to clause (c) of section 58 of. the Transfer of Property Act, 1882, incorporated in the Act by the Amending Act XX of 1929, is that though a transaction may in fact have been a mortgage, yet, when the condition of re-sale is not embodied in the document that effects or purports to effect the sale, then the transaction cannot be treated as a mortgage.   Samsherkhan Banekhan v. Vithaldas Dwarkadas and another A I R 1946 Nag. 264 ;Ma Soin Nyo and another v. Maung San Pe and another A 1 R 1935 Rang. 212 ; Kosturi Venkata Subbarao . Bikkina Veeraswami A I R 1946 Mad. 456 ; Jaggannath . Singh and others w. Butto Krishto Roy A I R 1947 Pat. 345 ; Neri Mal v. Mst. Sharifan and another A I R 1949 All. 194 and Rechuri Suryaprakasa Rao and others v. Gottumukkala Venkat aju and others A I R 1953 Mad. 830 rel.   Ramnarayan Ramrakh v. Ramratan Radhakishan A I R 1934 Nag. 18 not fol.   Sital Chandra Koley and another v. Mihilal Koley and others 58 C W N 1000 distinguished.   Syed Mehdi Husain v. Syed Mohammad Jawad and others 194 I C 470 ; Chandra Kanta Hdwladar and others v. Rama Prasanna Ganguly 5 D L R 29 ; Alderson v. White;De. G & J 105; Bhagwan Sahai v. Bhagwan. Din and others 17 I A 98 and Prag Datta and another v. Hari Bhadur and others A I R 1947 All. 334 ref.   (b) East Bengal State Acquisition and Tenancy Act, 1950 (XXVIII of 1951), S. 96 and Bengal Tenancy Act (VIII of 1885), S. 26-F-Agreement for re-sale, prior to or contemporaneous with sale-Whether right of pre-emption available.   Where the question was whether when an agreement for re-sale prior to or contemporaneous with the sale is executed, the right to pre-emption itself under section 26-F, Bengal Tenancy Act, 1885 or section 96, East Bengal State Acquisition and Tenancy Act, 1950, was available   Held, that the existence of an, agreement for re-sale in the circumstances does not necessarily preclude the application either under section 26-F, Bengal Tenancy Act, 1885, or section 96, East Bengal State Acquisition and Tenancy Act 1950. If…