P L D 1963 Dacca 348 (PLP)

This Rule arises out of a case under section 26‑F of the Bengal Tenancy Act (hereinafter called as the Act). The peti tioner made an application under section 26‑F of the Act on or about 29‑8‑59 with respect to a kabala dated 3‑9‑56 purporting to transfer 1.06 of acre of occupancy raiyati land. On the same date another kabala was executed by the self‑same vendor Akshoy to Aminuddin Molla who is opposite‑party No. 1 in the pre sent case. The kabala under pre‑emption is the one executed by Akshoy in favour of one Yusuf Ali. The vendee Aminuddin Molla made an application under section 26‑F of subsection (4) (a) of the Act to join as a co‑applicant in the application filed by the present petitioner on 29‑8‑

59. The application for preemption as made by the petitioner was not resisted by any party but a question arose as to whether opposite‑party No. 1 Aminuddin Molla could succeed in getting an order of rateable pre‑emption as against the petitioner's claim for pre‑emption with respect to the whole quantity of land covered by the kabala in question. According to the petitioner he was entitled to get 1.06 acre ; whereas according to the opposite‑party No. 1 he was entitled to get out of that at least 59 decimals of land.

2. The learned Munsiff found that Aminuddin Molla could not be regarded as a co‑sharer tentant in relation to the holding in question inasmuch as it could not be ascertained as to which of the two kabalas executed on 3‑9‑56 by Akshoy was earlier in point of time.

3. The learned District Judge, however, on appeal took the view on the authority of a decision in the case of Hirendra Lai Sarkar v. Sm. Kanaklata Chowdhury and others (46 C W N 849), that even if it was assumed that Aminuddin Molla had acquired his right of co‑sharership subsequent to the kabala under pre‑emption yet he should be entitled to get rateable pre‑emption in terms of his application. It is against this decision of the learned District Judge that the present Rule has been obtained.

4. Mr. T. H. Khan, the learned Advocate for the peti tioner contends that the learned District Judge acted with material irregularity in the exercise of jurisdiction in so far as he relied upon the decision referred to above without looking into the question as to whether the provisions of section 26‑C of the Act were a relevant factor for consideration for the purpose of an application under section 26‑F of subsection (4) of the Act. In other words, his contention is that the scheme of section 26‑F of the Act is that an application there under is maintainable only at the instance of such co‑sharer tenants who might be entitled to get notice in terms of subsection (4) of section 26‑C of the Act. He has further submitted that this aspect of the question has not been considered in the decision referred to above and it is not permissible to think that the right of pre‑emption as may be claimed under section 26‑F of the Act goes along with the land as assumed by the learned Judge while giving that decision.

5. Mr. Muazzem Hossain appearing for the contesting opposite‑party No. 1, however, contends that the right of a co -applicant for the purpose of subsection (4) of section 26‑F of the Act is not dependent upon a right to get notice under section 26‑C of the Act. According to him, a co‑applicant for the purpose of getting rate able pre‑emption is entitled to come in time as indicated in subsection (4) clause (a) provided he has acquired the right of co‑sharership before the original application under subsection (1) is filed. According to that test, in his sub mission, the application as made by Aminuddin Molla was perfectly in order.

6. It is not disputed that if the kabala in favour of Aminuddin Molla appears to have been registered subsequently to the kabala under pre‑emption then there will be no occasion for filing any notice in the prescribed manner for service upon him as required in terms of subsection (4) of section 26‑C of the Act. The question, therefore, is as to whether a person who is not entitled to get a notice under section 26‑C of the Act can come in as a co‑appli cant within the ambit of subsection (4) (a) of section 26‑F of the Act. On a reference to subsection (1) of section 26‑F of the Act it appears that a co‑sharer tenant who is otherwise entitled to get a notice under section 26‑C of the Act can come if such notice has been served upon him within four months of the service of the notice and apply to the Court for the said portion or share to be transferred to himself. If no such notice appears to have been served on him then according to settled course of decisions he can come and apply under subsection (1) within three years. No authority has been placed before me to show that a person who is not entitled to get a notice under section 26‑C of the Act, A as indicated in subsection (4) thereof, can make an application and ask for the portion or share in question to be transferred in terms of subsection (1) of section 26‑F of the Act. I amp inclined to think that it is a pre‑requisite condition that for the purpose of an application under subsection (1) of section 26‑F of the Act the applicant must show that he was a co‑sharer tenant entitled to get notice in terms of section 26‑C of the Act at the time when the registration of the kabala in question took place. If the kabala on the basis of which the applicant wants to seek relief under subsection (1) appears to have come into existence later than the date or time of registration of the kabala under pre‑emption, then certainly he would not be entitled to get notice in terms of subsection (4) of section 26‑C of the Act and as such, in my view, he would not be entitled to maintain an application for pre‑emption in terms of section 26‑F of the Act. No authority has also been placed before me to show that a co‑sharer tenant who seeks to have relief under subsection (4) of section 26‑F of the Act has got a higher right or better privilege than the original applicant under subsection (1) of section 26‑F of the Act. On the other hand it seems, reference to the period indicated to in subsection (1) by necessary implication suggests the period of four months of the service under section 26‑C of the Act as provided in sub section (1) of section 26‑F of the Act as one of the prescribed periods within which the application is to be made. This would further indicate that compliance with the terms of subsection (4) of section 26‑C of the Act is an essential formality to be observed at the time of the registration of the kabala under pre‑emption, In that view of the matter, I am inclined to think that the expression " any of the remaining co‑sharer tenants " as used in subsection (4) (a) of section 26‑F of the Act refers to such co‑sharer tenants as indicated in subsection (4) of section 26‑C of the Act. I am also of the opinion that a co‑applicant seeking to come under subsection (4) (a) of section 26‑F of the Act has got no higher or independent right as distinguished from an original applicant under subsection (1) of section 26‑F of the Act. The only privilege conceded in his favour seems to be that although a co‑sharer tenant might come as an original applicant under subsection (1) yet he can take advantage of an application' under subsection (1) by another co‑sharer tenant and then within one month of the date of such application he can come and apply to join in the same as provided in subsection (4)(a) of section 26‑F of the Act.

7. The right claimable under section 26‑F of the Act is subject to certain conditions as laid down therein. This right seems to be a creation of the statute, and in my view, it is not dependent upon the desire or volition either of the vendor or of the vendee. It is difficult to conceive that such a right can be said to be an incident of the share or portion of the tenancy, which might be conveyed by one co‑sharer tenant to a stranger. The scheme of section 26‑F of the Act seems to be to preserve as far as possible the unity and integrity of the tenancy concerned. It is difficult also to think that while the Legislature in tented to discourage alienation to strangers yet it savored the idea of such a stranger to have the privilege of participating in the right of pre‑emption though he himself might not be entitled to claim such right in terms of subsection (1) of section 26‑F of the Act. It is also equally difficult to think that the ingredients of sub section (4) (a) can be read or considered independent of the pro visions of subsection (1) of section 26‑F of the Act or of the provisions of section 26‑C of the Act. With all respects to the learned Judges who had decided the case of Hirendra Lal Sarker v. S. Kanaklata Chaudhurani and others. I cannot but differ in the view taken by them in so far it seems to have been held that even a stranger who acquires some portion of the tenancy concerned subsequent to the kabala under pre‑emption can maintain an application under subsection (4) (a) of section 26‑F of the Act. For all these reasons I am inclined to think that the decision of the learned District Judge cannot be supported as a sound one. As there is nothing to show upon which it can be ascertained as to whether the kabala executed in favour of Aminuddin Molla was brought into existence prior to the kabala under pre‑emption executed by Akshoy in favour of Yusuf Ali, I do not think any useful purpose will be served by further investigation into the matter.

8. The result, therefore, is that this Rule is made absolute, the judgment and order of the learned District Judge are set aside and those of the learned Munsif are restored. 1, however, make no order as to costs of this Rule in view of the peculiar circumstances of the case. S. B./A. H. Rule made absolute.