ANIRUDDHA BOSE, J. -
(1.)The West Bengal Restoration of Alienated Land Act, 1973 contemplates, in substance, return of land to a small landholder in a situation such a landholder conveys the same to raise funds to tide over financially distressed condition. For restoration of the conveyed land, the concerned landholder is required to make an application to the authority prescribed under the said statute. We shall refer to that statute henceforth as the 1973 Act. This legislation lays down certain parameters within which a landholder ought to come to invoke the provisions relating to restoration of the land already conveyed by him. The nature of land to which the said Act applies is defined in Section 2 (2) of 1973 Act. Under the said provision, land means agricultural land and includes homestead, tank, well and water channel. To be eligible for the protective umbrella of this statute, the aggregate holding of the transferor cannot exceed two hectares. The 1973 Act, as originally framed, applied to any transfer made by a landholder "in distress" or "in need of money for the maintenance of himself and his family" or "for meeting the cost of his cultivation". There has been subsequent amendment to the Act by which the words "in distress or" has been omitted. In this appeal, we are concerned with a deed of conveyance executed on 26th April, 1968. The transferors of the land forming subject-matter of that deed applied for restoration thereof on 9th August, 1974. At that point of time, the 1973 Act, as originally framed was applicable. Section 4 (1) of the Act lays down the conditions under which a transferor could seek restoration of conveyed land. Section 4 of the said statute, as originally enacted, read:-
"4. Procedure for effecting restoration of lands alienated under certain circumstances.-(1) Where before the commencement of this Act a person being the transferor holding not more than 2 hectares of land in the aggregate transferred the whole or any part of his land by sale to any person being the transferee, then, if-
(a) such transfer was made after the expiry of the year 1967 being in distress or in need of money for the maintenance of himself and his family or for meeting the cost of his cultivation, or
(b) such transfer was made after the expiry of the year 1967 with an agreement written or oral, for reconveyance of the land transferred, to the transferor, the transferor may, within five years from the date of such transfer or within two years, from the date of commencement of this Act, whichever period expires later, make an application in the prescribed manner to the Special Officer having jurisdiction in the area in which the land transferred is situate for restoration of such land to him.
(2) On receipt of such application, the Special Officer shall cause a notice thereof to be served in the prescribed manner on the transferee.
(3) On the date fixed in the notice for hearing such application or on any subsequent date to which the hearing may be adjourned by the Special Officer, the Special Officer shall receive such evidence as may be adduced by the transferor and the transferee.
(4) If after considering such evidence and hearing the parties the Special Officer is satisfied that such transfer was made by the transferor within the time, and for the purpose, referred to in clause (a) of subsection (1), or, as the case may be, within the time, and under the conditions, referred to in clause (b) of that sub-section, the Special Officer shall make an order in writing restoring the land transferred to the transferor and directing the transferor to pay, in such number of equal installments not exceeding ten and by such dates as may be specified in the order, the amount of the consideration which was actually paid by the transferee to the transferor for such transfer, together with interest on such amount at the rate of four per centum per annum from the date of his receipt of such consideration and the amount of any compensation for improvements effected to such land, allowed by the Special Officer and determined by him in the manner prescribed, less the amount determined in the manner prescribed of the net income from such land of the person in possession of such land as a result of such transfer.
Provided that the first of the instalments provided in the order made under this sub section shall be payable within three months of the date of the order.
Explanation-Subject to the other provisions of this section,-
(i) the word "transferor" referred to in this Act means the first transferor between the expiry of the year 1967 and the date of commencement of this Act and includes the heirs of such first transferor;
(ii) the word "transferee" shall mean where the land is in the possession of any person other than the first transferee by virtue of a subsequent transfer such subsequent transferee; and
(iii) the expression "consideration which was actually paid by the transferee to the transferor" shall mean where there was more than one transfer, the amount which was paid by the first transferee to the first transferor.
(5) Notwithstanding anything contained in the Indian Evidence Act, 1872 (1 of 1872) any evidence adduced by a transferor varying, adding to, or subtracting from, the terms of the sale deed to prove the necessity or purpose for which the transfer was made or the amount of consideration actually paid by the transferee to the transferor, shall be admitted.
(6) When the special Officer makes an order for payment under sub-section (4), he shall direct that-
(a) where such land has been sold before or after such order is made, in execution of a decree or of a certificate under the Bengal Public Demands Recovery Act, 1913, (Bengal Act III of 1913) against the transferee the whole of the amount payable under the said order or such part of it as may then remain due, shall, notwithstanding anything contained in such order become due and payable at once and on such payment being made, such sale in execution of the decree or the certificate shall be set aside and the amount paid shall be applied towards satisfaction of the decree or the certificate, as the case may be;
(b) in the case where such land has been alienated by the transferee before the date of such order by means of a bonafide lease for valuable consideration or a usufructuary mortgage, such payment shall be made to the transferee and the person in possession of such land as a result of such transfer in such proportion and in such manner as may be determined by the Special Officer and specified in the order; and
(c) in other cases, such payment shall be made to the transferee;
Provided that if such land is subject to a bonafide mortgage other than a usufructuary mortgage and such mortgage was executed after the transfer of such land referred to sub-section (1), the Special Officer shall direct that such instalments shall first be paid to the mortgagee until the amount due under the mortgage as determined by the special Officer is paid off and that the thereafter any such instalments or part thereof still remaining due shall be paid in the manner provided in clause (a), clause (b) or clause (c) of this sub-section as the case may be.
(7) the amount ordered to be paid by instalments under sub-section (4) shall be a charge on the land in respect of which the order under that sub-section has been made.
(8) Where any land, in respect of which an order under sub-section (4) is made, is after the date on which such order takes effect under sub-section (1) of section 5, sold in execution of a decree or of a certificate filed under the Bengal Public Demands Recovery Act, 1913, against the transferor to whom restoration had been made, or otherwise transferred by him, the whole of the amount payable under such order then remaining due shall, notwithstanding anything contained in such order, at once become due and payable, and the person to whom such amount is payable shall be entitled to recover it under Section 6."
(2.)Malina Bala Dey (since deceased), Smt. Bebi and Renuka Dey (the first appellant) before us had conveyed approximately 31 decimals of land to Naresh Chandra Gope (since deceased) in the district of Burdwan in West Bengal by a deed executed on 26th April, 1968 for a consideration of Rs. 9,500/-. So far as Renuka Dey is concerned, she conveyed the land for self and on behalf of her two minor sons and also a daughter. The land forming the subject of the sale transaction included parts of a pond (tank) and garden. In the deed itself, it has been recorded that the first vendor (i.e. Malina Bala Dey) was effecting transfer for buying other property whereas the second vendor (Smt. Bebi also spelt as Baby on certain documents) wanted the sale proceeds to be applied for repaying loan obtained for marriage of her sister. The third vendor (Smt. Renuka Dey), also representing her two minor sons and daughter declared in the deed that the sale was being effected for meeting the educational costs of her two minor sons and also for repaying loans obtained for (i) marriage of her daughter (ii) obtained by her husband and (iii) for buying "some paddy land for our food, cash is required" (quoted from the copy of the deed forming part of the paper book, at page 50). On the very same date the subject-land was conveyed, Malina Bala Dey and Smt. Renuka Dey purchased another piece of immovable property for a consideration of Rs. 5,000/-.
(3.)It has been urged on behalf of the appellants, (who are the original transferors Renuka Dey, Baby Basu Mallick as also the two sons and daughter of Renuka Dey and legal representative(s) of Malina Dey) that simultaneous with the deed of conveyance, another agreement of reconveyance of the land was also executed by and between the same set of parties. The time period by when the agreement was to be executed, as specified in that agreement itself, was broadly two years. We are quoting below relevant extracts from that agreement :-
"Now I enter into an agreement with you that within the month of Chaitra, 1377 B.S you shall pay me back Rs. 9500/- (which I paid to you today) at a time and I shall sell to you the property described in the schedule below and execute and register a deed of sale in your favour.
But if do not sell to you the aforesaid property inspite of receiving from you Rs. 9500/- at a time within the aforesaid period then you, by this Ekrarnama, shall get the aforesaid property executed and registered through Court.
And if you fail to pay me Rs. 9500/- at a time within the aforesaid period then this Ekrarnama shall be cancelled and after expiry of the aforesaid period you shall not be entitled to make any claim for purchasing the aforesaid property and even if done the same shall be rejected." (quoted verbatim)