- (1.) This appeal arises out of a suit for pecific performance of a contract of re-sale of land. The dispute between the parties has a long history, but, for my present purpose, the relevant facts may be stated as follows: The suit land originally belonged to the Respondent's predecessor Bepin Behari Grhose. On July 17, 1940, Bepin sold the suit land to one Asutosh Majumdar, the predecessor-in-interest of Appellants Nos. 1 to 5 for Rs. 1,000. The kobdla or the deed of sale is Ex. A in the present case. On the same date, Ashutosh agreed to reconfey the land to Bepin on receipt of the said sum of Rs. 1,000 within eight years. This agreement was confirmed by a letter (Ex. 1) written by Asutosh himself, as now abundantly proved in this case, to Bepin on September 26, 1940.
(2.) In 1942, Bepin applied under Section 38 of the Bengal Money-Lenders Act for the statutory taking of accounts, as provided in the said section, giving rise to Miscellaneous Case No. 197 of 942 of the second court of the Munsif at Howrah, upon the allegation inter alia that the above sale and agreement of re-sale of July, 1940, really represented a mortgage transaction. This application was dismissed by the learned Munsif upon the finding bat the sale and the agreement were two separate and independent transactions and did not and could not in law institute a mortgage. That decision was eventually affirmed by this Court on June 18, 1945. Both Bepin and Ashutosh died huring the pendency of the above proceeding under the Bengal Money-Lenders Act which was during its later stages conducted by and against their respective heirs, namely, the Respondents and the Appellants Nos. 1 to 5.
(3.) On May 13, 1942, Asutosh had executed a kobala (Ex. A /1) in favour of Dtirga Prosad Ghosh, the predecessor of Appellants Nos. 6 to 8, purporting to convey the suit land to him for Rs. 1,200.;