An agreement for reconveyance simultaneous with the transfer sought to be pre-empted may be enforced against the pre-emptor where the pre-emptor had notice of such agreement.

( 1 ) THIS appeal raises an interesting question.

( 2 ) ON 4/7/1945 respondents 1-4 filed a suit against the appellants and one Mohanta Patra for specific performance of a contract of reconveyance. That suit was dismissed by the trial court but, on appeal, it was decreed by the learned Subordinate Judge, First Court, Howrah. From this appellate decision the present second appeal has been preferred by defendants 2 and 3.

( 3 ) BRIEFLY stated, the plaintiffs-respondents' case was as follows: the disputed property which comprises an undivided share of an occupancy rayati holding originally belonged to them (respondents 1-4 ). On 15-3-45, in pursuance of an arrangement between the parties for sale and resale, they (the plaintiffs) sold the suit property to Mohanta Patra (who was defendant 1 in the trial court) by the Kobala (Ex. 1) and simultaneously obtained from him the agreement for reconveyance (Ex. 2) which is the foundation of the present suit. The appellants before us (who were defendants 2 and 3 in the trial Court), alleging to be cosharers of the disputed occupancy rayati holding, applied for pre-emption under Section 26f, Bengal Tenancy Act, against the transferee defendant 1 alone and succeeded in getting an order in their favour. The respondents duly tendered to the appellants the consideration, payable under the agreement for reconveyance (Ex, 2), but the latter refused to accept the same and reconvey the suit property.

( 4 ) THE appellants' defence was that the alleged agreement for reconveyance (Ex. 2) was not genuine and that, in any event, it was not enforceable against them and could not affect or prevail over their right" in respect of the disputed property. They claimed to have become absolutely entitled to the suit property as a result of the preemption proceedings and they also set up inter alia the defence of bona fide transferees for value without notice.

( 5 ) THE learned Munsif came to the conclusion (tat the agreement (Ex. 2) was not genuine and, in that view of the matter, he dismissed, the respondents' suit, consideration of all other questions being rendered unnecessary by reason of his above finding. On appeal, the learned Subordinate Judge reversed the learned Munsifs decision, holding inter aha that the agreement (Ex. 2) was genuine and that the appellants' pre-emption must be subject to, the said agreement. The learned Judge further found that the appellants had actual, in any event, constructive notice of the said agreement before the pre-emption proceedings and were thus not bona fide transferees without notice. The respondents' suit was, accordingly, decreed by the lower appellate Court and the unsuccessful defendants 2 and 3 have now come up in second appeal to this Court.

( 6 ) THREE questions were raised in support of this appeal. In the first place, the learned Subordinate Judge's finding that the agreement (Ex. 2) was genuine was challenged. It was next contended that, even assuming that the said finding. was correct, that agreement could not in law affect the appellants' title to the property, obtained under the order of pre-emption, and the said title could not be held to be subject to the said agreement (Ex. 2 ). Thirdly, it was urged that, in any event, the appellants were in the position of bona fide transferees for value without notice in relation to the disputed property, acquired by them in the pre-emption proceedings, and the learned Subordinate Judge's finding to the contrary was wrong. It was, accordingly, claimed that, on this ground at least the agreement (Ex. 2) should be held not to be binding or enforceable against them (the appellants) and the plaintiffs' suit should be dismissed,

( 7 ) OF the above three contentions the first and the third may be shortly disposed of.

( 8 ) THE question whether the agreement (Ex. 2) was genuine or not is a pure question of fact. True, the judgment of the learned Subordinate Judge is, on this point, a judgment of