P L D 1966 Dacca 198 (PLP)

The present opposite‑party preferred an appeal against the said order of the learned Munsif. Tae learned Appellate Court affirmed the findings of the learned Munsif that Karam. Ali, the predecessor‑in‑interest of the present petitioners, was a co-sharer by virtue of his kabala Exh. A but he found that the application for rateable pre‑emption was barred by limitation inasmuch as the said application was filed on 7‑10‑61 whereas the kabala had been executed on 1‑10‑58 and as such the learned Appellate Court allowed the appeal acid set aside the order of the learned Munsif giving the present petitioners rateable pre‑emption to the applicant. Against the said order passed by the Appellate Court the present Rule was obtained by the petitioners. Mr. A. M. Fazlul Wahab appearing before us on behalf of the petitioner has, firstly, raised the question of jurisdiction and secondly, he argued that the learned Subordinate Judge erred in holding that the application for proportionate pre‑emption was barred by limitation. So far as the question of jurisdiction is concerned Mr. Wahab pointed out that the value of the kabala sought to be pre‑empted was Rs. 2,000 and the statutory compensation therefore was Rs. 200 and the present opposite‑party had to deposit the sum of Rs. 2,200 for filing his application for pre- emption. Therefore, he contended that the subject‑matter of the application should have been valued at Rs. 2,200; which was beyond the pecuniary jurisdiction of the learned Munsif, who was entitled to take matters only up to the value of Rs. 2,

000. He has argued that there was inherent lack of jurisdiction so far as the Munsif is concerned and it did not matter whether the parties raised any objection or not. This question, however, has been considered by a Division Bench of this Court in the case of Sajan Ali v. Matiur Rahman Muktear, (1) being Civil Revision Case Nos. 849‑850 of 1962 (unreported) where it has been held as follows :‑-- "It is not disputed that the market value of the suit property as stated in the kabala dated 13‑2‑1957 is Rs. 2,000 and not more. Therefore, a suit for possession of this property could not be valued at any sum in excess of Rs. 2,

000. In this view of the matter an application relating to such property for any purpose available in the Bengal Tenancy Act as indicated in the relevant subsection could not be valued at more than Rs. 2,

000. It is true that in the event of an application under section 26‑F of the Bengal Tenancy Act being allowed the pre‑emptee or other persons who might otherwise be found entitled would get certain statutory compensation but that compensation cannot be regarded as the value of the land concerned. As compensation it can be said to represent the costs and other expenses incurred by the parties concerned in connection with the transaction and other connected matter. That cannot be an integral part of valuation of the land in dispute. We are inclined to think that the learned Subordinate Judge is right in holding:‑--"This valuation cannot mean to include compensation." We are therefore, of opinion that under no circumstances the valuation of the property in dispute for the purpose of an application and under section 26‑F of the Bengal Tenancy Act could be assessed at any sum in excess of Rs. 2000." The present case is on all fours with the case referred to above and there is no reason to differ from the reasonings already accepted by this Court. It was, however, pointed out by Mr. Wahab that Chakravartti, J. in the case of Masior Rahman v. Sm. Samsannessa Bibi (A I R 1949 Cal. 307) while meeting the point that the actual value of the land being much higher the Munsif had no jurisdiction, stated. "The section 26 series of the Bengal Tenancy Act make it perfectly clear that for the purposes of an application under section 26‑F, the value of the subject‑matter must be taken to be the amount of consideration stated in the deed of transfer, and it may be a further 10 per cent. thereon as compensation . . . . . It is not open to any party to plead or prove that the real value of the subject‑matter was something more than what was stated in the deed or what was in fact paid by the vendee. That being so, it is in our opinion quite clear that for the purposes of any proceeding under section 26‑F., Bengal Tenancy Act, the value of the subject‑matter must be taken to ‑be the amount of considera tion stated in the deed together with a further 10 per cent. thereon as compensation." It appears that attention of the learned Judges was drawn only to the question whether the alleged real value of the land or the amount of consideration would determine the forum. It was not specifically considered whether the additional 10 per cent. should be regarded as an integral part of valuation of the application. The observation of Chakravartti, J. was, therefore, obiter dicta. The additional sum of Rs. 200 in this case, is only a requirement of section 26‑F of the Bengal Tenancy Act for the filing of the application thereunder. This will not raise the value of the subject‑matter of the application. This sum has to be paid to the disappointed purchaser by way of compensation but it cannot raise the value of the subject‑matter itself. So we bold that for the purpose of determining 'the forum of an application under 'section 26‑F of the Bengal Tenancy Act it is the consideration paid by the kabala which is to be the determining factor and the statutory compensation which has also to be deposited cannot be added to the valuation of the application. Mr. Wahab then turned to his second point and relied on Section 49 of the Registration Act to support his contention that the application was not barred as three yeas should be counted not from the date of execution of the kabala Exh. 1 (a) but from the date of its registration which would bring it within time. It appears that the kabala Exh. 1(a) was executed on 1‑10‑58 and registered on 11‑10‑58 and Karam Ali had claimed pre‑emption on his application, which was filed on 7‑10‑

61. The present opposite‑party had filed the application for pre‑emption on 2‑6‑

61. It is true that no legal effect can be given to a transfer embodied in a compulsorily registerable document till the registration is effected and we must hold that the right to pre‑empt accrues only when the document embodying the transfer is registered. But, this does not help Mr. Wahab. Karam Ali was a transferee pre‑emptor. The legislature has provided for pre‑emption by such persons in subsection 4 (a) of section 26‑F of the Bengal Tenancy Act, which reads as follows :‑ "When an application has been made under subsection (1), any of the remaining co‑sharer tenants, including the transferee, if one of them, may within the period referred to in that subsection or within one month of the date of the application whichever is later, apply to join in the said application ; any co‑sharer tenant who has not applied under either subsection (1) or this subsection shall not have any further power of purchase under this section." This subsection,' when analysed, gives the transferee co‑sharer along with other co‑sharers two periods of limitation. First, if any other co‑sharer has made an application for pre‑emption he can come within four months from the date of the kabala sought to be pre‑empted. Application of this limitation, of course, presupposes that the other co‑sharer has made the application at a very early stage after the transfer. The second period of limita tion is one within one month from the date of application by the other co‑sharer. In this second period of limitation the transferee can avail of his remedy even when the other co‑sharer has resorted to the provision of Article 181 of the Limitation Act. But there are the two periods of limitation, which are prescribed by law. Mr. Wahab when faced with these statutory provisions has asked us, to read into the statute so far as the second period of limitation is concerned, the words "one month from the date of the service of the notice regarding the filing of the application for pre‑emption by the co‑sharer". He has argued that otherwise it will cause great hardship and no transferee co‑sharer will be able to pre‑empt and get rateable pre‑emption inasmuch as the processes of the Court may be served much later than a month after the filing of the application for pre‑emption. He has pointed out that in this particular case the application by the present opposite‑party was filed on 2‑6‑61 whereas his client received notice on 2‑7‑61 and with all his best intentions he could not have come within the prescribed period of one month, which is prescribed for rateable pre‑emption. We do not accept this contention of Mr. Wahab. The Legislature has made this provision clearly and there is no ground for reading in to the section something which is not there. The right to pre‑empt is a clog on transfer. The Legislature has, as concession to the transferee co‑sharer, given him a choice of sharing in the transferred property but this is an extraordinary right and he must be alert if he wants to derive the benefit. In this case we are to confine ourselves to a co‑sharer who has himself purchased the property in question. The case of a transferee co‑sharer stands on a different footing than other co‑sharers. He is not, obviously entitled to a notice under sec tion 26‑C of the Bengal Tenancy Act. He also knows that his rights ‑are subject to pre‑emption. In such circumstances, he should be alert regarding the exercise of the right of pre‑emption by the other co‑sharers. If. proceedings are strictly followed, i.e., the notice under section 26 (c) of the Bengal Tenancy Act are not suppressed by the transferee himself, then obviously he has to watch only four months. It devolves upon a transferee co‑sharer if he is acting bona fide to ensure that the other co‑sharers receive notice of the transfer to himself. That the law as to limitation for exercising the right for rateable pre‑emption by a transferee co‑sharer is to be strictly enjoined, also find support from the decision in the case of Abdul Ajiz Khan v. Lalit Mohan Banerji (54 C W N 442) where a Division Bench of the Calcutta High Court has held that in the case of a transferee, who was not entitled to the statutory notice under section 26 (c), the starting‑point is the date of application by the original applicant and not the date of the service of the notice under subsection (3) of section 26‑F of the said Act. Moreover, even if we were to accept Mr. Wahab's contention it would not have helped him in this case. As already stated the application was made on 2‑6‑61 and the notice as stated by Mr. Wahab was served upon his client on 2‑7‑61 and admittedly he has claimed proportionate pre‑emption on 7‑10‑61, more than three months after the notice has been served upon his client. Thus we hold that both the points raised by Mr. Wahab have no substance and the learned Subordinate Judge's order allowing the application for pre‑emption by the opposite‑party in full must be upheld. In view of our findings, stated above, it is not necessary to go into the question raised by Mr. Hamid appearing on behalf of the present opposite party that Karam Ali was not entitled to proportionate pre‑emption as it has not been positively estab lished that kabala Exh. A was earlier than the kabala Exh. 1 (a) although Exh. A bears the earlier serial number of registration. We also think that Mr. Hamid cannot be allowed to raise this question for the first time before us as it involves investigation into question of fact which the other side had no opportunity to meet‑no such point having been raised before the trial Court or the Appellate Court. The Rule is accordingly discharged without any order as to costs. S. M. MURSHED, C. J.‑I agree. K. H. A. Rule discharged.