P L D 1967 Dacca 600 (PLP)

Tamizunnessa is a co‑sharer tenant in several holdings men tioned in the Schedule of her aforesaid application; so had been Saru Mia and Badsha Mia, by purchase. By a single registered deed of hiba dated 12‑8‑61 Saru Mia and Badsha Mia transferred their portions in the said holdings in favour of opposite‑party Umar Ali, a stranger to the holding. This Umar Ali is son of Ansar Ali, a full brother of Saru Mia. The other donor Badsha Mia is son of one Monsaf, another full brother of Ansar Ali. Opposite‑party Umar Ali is thus a first cousin of Badsha Mia and nephew of Saru Mia. These facts are not in dispute. Both the Courts below thought that the said transfer by Saru Mia and Badsha Mia in favour of Umar Ali were protected by the provision of clause (c) of subsection (1) of section 26‑F, which excludes from operation of the section transfers by hiba in favour of relations by consanguinity within three degrees of donors. They appear to have taken the view that full brothers were to be reckoned as relations in the first degree of consangui nity, cousins in the third degree, and 3jncle and nephew, amongst themselves, in the second degree. Consistant with this view, the court of appeal below considered the donee opposite‑party Umar Ali, to be a relation by consanguinity within three degrees of both the donors. That is why it affirmed the order of the first Court refusing pre‑emption. There can be no doubt, however, that the mode of reckoning of degrees of consanguinity adopted by the Courts below is not the mode sanctioned by law. The mode of reckoning of the degrees is to be found in section 28 of the Succes sion Act, 1925, which read with the First Schedule thereof, requires the reckoning or computation to be made by a vertical movement upward or downward or upward and then downward again, in the family tree. By this method of computation a full brother is in the second degree of consanguinity, between the brothers their father intervening ; a first cousin is in the fourth degree of consanguinity, his father, grandfather and uncle intervening; and so a nephew is in the third degree of consangui nity, his father intervening between him and the uncle. Umar Ali is thus a relation of the donor Saru Mia in the third degree and in the fourth degree of the other donor, namely, Badsha Mia. Learned Advocates for the parties agree that degrees of consanguinity have to be computed in the mode prescribed by section 28 of the Succession Act, 1925, and further that according to that mode the donee Umar Ali would be a relation of Saru Mia in the third degree of consanguinity, and of Badsha Mia in the fourth degree. They also agree that such portions of the holdings in question as were transferred to Umar Ali by Saru Mia~ were protected by the provision of clause (c) of subsection (1) of section 26‑F of the Bengal Tenancy Apt, and also that the other portions therein that were acquired by Umar Ali under the deed of Hiba from Badsha Mia were not so protected. Agreement between the learned Advocates end here; and while Mr. Ahmed Sobhan appearing for the applicant‑petitioner contends that the application for pre‑emption must be allowed to the extent of the petitioners of the holdings acquired by Umar Ali from Badsha Mia Mr. M. A. Rouf appearing for the opposite‑party Umar Ali claims that giving effect to Mr. Ahmad Sobhan's contention would amount to grant of a partial pre‑emption, which is not permissible in law. In support of his above contention Mr. Rouf relied on a Calcutta decision in the case of Khoka Balragi and others v. Bhabani Dasi and another (49 C W N 242), where Henderson, J. held that partial pre‑emption was not sanctioned by the Bengal Tenancy Act. That was a case where one of several heirs of the deceased transferee was not made party in the application for pre‑emption, and was not also substituted within time. It was claimed that pre emption could be allowed to the extent of the shares of the other heirs of the transferee. Henderson, J., rejected that claim observing as follows:‑ "This section must be construed strictly against the pre emptor and if there is any doubt the benefit of it must go to the transferee. There is no specific provision for partial pre emption; indeed the words used are "the said portion or share" Furthermore, there is no provision for apportionment of the consideration money. I have no doubt that the intention of the Legislature was that such pre‑emption should not be allowed. This was the view taken of the old section Vide Behary Lai Roy v. Pulin Behary Paul in 38 C W N 654 and I can find nothing to suggest that a new policy has been adopted in the amendment section." The above observation, in my view, means that an applicant must ask for, and has to be granted, pre‑emption in respect of an entire portion or share of a holding which he is entitled to pre empt. Nothing else can be read in the aforesaid observation of Handerson, J. In the present case, the learned Advocates, agree that the applicant was entitled to pre‑empt only Badsha Mia's portions in the several holdings. The applicant has not asked for less. The case of Khoka Bairagi has, therefore, no hearing on the facts of the present case. As the applicant here can claim pre emption in respect only of portions in the holdings transferred to Umar Ali by Badsha Mia the pre‑emption application in my view, can and should be considered to the extent of those portions therein. There having been no omission on the part of the applicant to ask for pre‑emption in respect of the entire portion of a holding belonging to Badsha Mia and transferred by the deed of hiba in favour of Umar Ali, no question of partial pre‑emption arises in this case. Having found that such portions of the holding that belonged to Badsha Mia and were transferred to opposite‑party Umar Ali by the deed of hiba were not protected, as claimed (by the appellant) and that no question of partial pre‑emption would be involved if the applicant Tamizunnessa were granted pre‑emption to that extent, I am clearly of the view that her application should have been allowed to the said extent. The view that I have taken in this matter finds support from a Division Bench decision of the Calcutta High Court reported in Khodeja alias Khatejaunessa and another v. Mohamed Abdul Khalique and others (44 C W N 981). In that case certain co‑sharers is a holding transferred their interests to another co‑sharer and seven strangers. Derbyshire, C. J., and Mukherjee, J. took the view that the transfer to a co‑sharer not being pre‑emptible, in view of clause (a) of subsection (1) of section 26‑F, the application for pre‑emption could be considered to the extent of the transfer in favour of the seven strangers. It was said that in such a case the right of pre‑emption could be exercised by one or more of the other co‑sharer tenants with respect to the 7/8th portion of the holding which had been acquired by stranger purchasers. The Rule, in the circumstances, is made absolute. The order of the Court of appeal below is set aside and the case is remitted to that Court to be dealt with in the light of the observations made above, and according to law. The parties are, however, directed to bear their own costs. K. B. A. Rule made absolute.