P L D 1963 Dacca 880 (PLP)

These two Rules arise out of two proceedings started under section 26‑F of the Bengal Tenancy Act. As they were heard together in the Courts below, these Rules have also been heard analogously.

2. The application for pre‑emptions were made with regard to two kabalas dated 21/23‑5‑56 and 25‑2‑56, which purported to convey 13 items of properties in respect of one of which pre emption ‑ was asked for on behalf of opposite‑party Mohitosh Biswas. As no notice under section 26‑C of the Bengal Tenancy Act appear to have been served, the applications under section 26‑F of the Bengal Tenancy Act were made long after the dates of execution of registration of the kabalas but within three years thereof. It seems, the dispute in the Court below centred round the question as to whether in view of the admitted fact that opposite‑party Mohitosh Biswas arranged for these transactions by negotiations on behalf of the vendors helped in the matter of completion of the registration he could be said to lost his right of pre‑emption by reason of waiver, estoppel and acquiescence.

3. Both the Courts below found that the right of pre emption as conferred upon a co‑sharer tenant under section 26‑F of the Bengal Tenancy Act being a statutory right could not be said to have been waived by applicant Mohitosh Biswas. The prayer for pre‑emption was, accordingly, allowed.

4. The learned Advocate for the petitioners in support of these Rules has pressed two points before me. According to him, Mohitosh Biswas having more or less been a party to the transac tions virtually in the capacity of an agent of the vendors should be deemed to have relinquished his right of pre‑emption as a 6o‑sharer tenant and the Courts below committed an error in the exercise of their jurisdiction by ignoring this aspect of the case.

5. Mr. D. L. Rahman, the learned Advocate, appearing on behalf of the contesting opposite‑party has, however, pointed out that there is no evidence on record to show that Mohitosh Biswas actually gave out or made any representation to the effect that he would not claim pre‑emption although as a co‑sharer‑tenant he was entitled to do so.

6. The learned Advocate for the petitioners has conceded this and was unable to refer to any part of the evidence suggesting that after registration of the document when the right of pre emption can be said to have arisen Mohitosh made any representa tion to the effect that he would not enforce the right of pre emption or that upon such representation or conduct on the part of Mohitosh Biswas the purchasers, namely, the present petitioners, were induced to believe that such a right would never be exercised at the instance of Mohitosh who did so much by way of negotiat ing the same. The question as to whether a party has relinquished his right, if any, is a mixed question of fact and law and in the absence of proper evidence it is difficult to hold that simply because Mohitosh Biswas figured as an agent for the purpose of the transaction in question on behalf of the vendors concerned he held out that the right of pre‑emption, though accrued to him, would not be exercised. I am, therefore, of the opinion that it is not possible to disturb the findings of the Courts below on this score.

7. The learned Advocate for the petitioners has next contended that Mohitosh Biswas was a co‑sharer tenant with respect to several holdings effected by the kabalas in question but he asked for pre‑emption only with respect to item No. 2 of such properties. As such, he was trying to get an advantage by way of partial pre‑emption although the land required him to pre‑empt with regard to all such holdings in respect of which he appears to be a co‑sharer tenant. In other words, the learned Advocate's contention is that Mohitosh cannot be allowed to exercise his right of pre‑emption partially although he is otherwise entitled to exercise such right in regard to more than one property.

8. Mr. Rahman, appearing for the opposite‑party contends at the first instance that there is no bar in allowing a partial pre emption in a case like this. He has relied upon two decisions in the case of Manaranjan Chaterjee and another v. Pyari Mohan De and others (43 C W N 220) and Diam Hossain v. Haran Das Name Sudra (P L D 1962 Dacca 458).

9. The learned Advocate for the petitioners, on the other hand, relied upon two decisions in the case of Babul Haque v. Sm. Laljan Bibi and others (P L D 1958 Dacca 315) and Makhanlal Nag and another v. Reajuddin Sepai and others (P L D 1962 Dacca 545).

10. It appears from the application made before this Court that 13 items of properties were the subject‑matter of sale in each of the two kabalas. Out of these items, 44 decimals of land out of 2.44 acres of Plot No. 4 appertaining to Khatian No. 26 of Mouza Narandi was sought to be pre‑empted after depositing the price as stated in the kabala together with the statutory com pensation. Other plots appertaining to some other khatians, and it is definitely stated that Plots Nos. 5 and 6 appertaining to Khatian No. 23 of the same mouza, besides such other plots were also conveyed by this kabala. The various items of properties purported to have been conveyed by these kabalas have been separately valued therein. The relevant C. S. khatians have been put in along with the affidavit‑in‑reply. Plots Nos. 5 and 6 appertaining to Khatian No. 23 of mouza Harandi have been valued at Rs. 300 to one kabala and at Rs. 500 in the other kabala. Apart from the question as to whether Mohitosh Biswas is a co sharer tenant or not in regard to the properties other than those appertaining to Khatians Nos. 23 and 26 it appears on a reference to the relevant C. S. khatians that Mohitosh is a co‑sharer tenant surely with respect to the holdings covered by these two khatians, namely, Khatians Nos. 23 and

26. It is not necessary at the present stage to go into the question as to whether he was a co‑sharer tenant with respect to the other holdings as well. It will be sufficient for our present purpose if it is found that he was a co‑sharer tenant at the relevant time when the kabalas were registered in regard at least to the holdings appertaining to Khatians Nos. 23 and

26. It is not disputed that Mohitosh Biswas while applying for pre‑emption deposited only that such amount which would be enough for the purpose of pre‑empting the plot appertaining to khatian No. 26 alone. If, therefore, it appears upon a proper construction of the relevant section that partial pre‑emption is not permissible in law then for want of sufficient deposit at the proper tone in terms of subsection (2) of section 26‑F of the Bengal Tenancy Act the application for pre‑emption must be thrown out as a whole.

11. Mr. D. L. Rahman has relied upon the decisions in the cases of Dian Hossain v. Haran Das Name Sudra and Monoranjan Chaterjee and another v. Pyari Mohan De and others. It appears that some other decisions in the case of Babu Haqe v. Sm. Laljan Bibi and others ((1956) 8 D L R 362), Surabala Basu v. Rukmini Kanta Barman Roy and another (42 C W N 288), as also the decision in the case of Behari Lal Roy and others v. Pulin Behari Paul and another (38 C W N 654), were considered but the learned Judge while disposing of the case in 13 D L R 283 seems to have taken the view that change in law by the Amending Act of 1938 gives wider scope to the pre‑emptor for pre‑empting any part or share of a holding or a plot by deposing the price or value which has been mentioned by the vendor in the notice under section 26‑C of the Bengal Tenancy Act. In this view of the matter, it was held in that case that the pre‑emptor was entitled to ask for pre‑emption with respect to one of the two properties inasmuch as the prices thereof had been stated separately in the kabala. It does not appear as to what were the precise reasons which weighed with the learned Judge. Nor does it appear as to whether it was the subject for consideration in the light of the language employed in subsection (1) of section 26‑F of the Bengal Tenancy Act as to whether the pre‑emptor concerned could pick and choose and ask for pre‑emption arbitrarily and whether such an arbitrary choice on .the part of the pre‑emptor would be consistent with the scheme of pre‑emption as envisaged in section 26‑F of the Bengal Tenancy Act. In the case of Monoranjan Chaterjee and another v. Pyari Mohan De and others, learned Judge refers to two decisions in the cases of B21rari Lal Roy and others v. Pulin Behari Paul and another and Surabala Basu v. Rukmini Kanta Barman Roy and another, without giving much reason, be took the view that reading sections 26‑C and 26‑F of the Bengal Tenancy Act it would appear that there was no pro hibition under the Bengal Tenancy Act whereby the landlord was precluded from exercising the right of pre‑emption with respect to one of the holdings which have been sold. In Dian Hossain's case reported in 13 D L R 283 the landlord's position as envisaged under the old Act seems also to have weighed with learned Judge. The question, however, is as to whether after the Amending Act of 1938 it can be said that the Legislature permitted a co‑sharer tenant to ask for pre‑emption with respect to one of the several properties, having the character of occupancy‑raiyati right, in all of which he is interested as a co‑sharer tenant or whether such a co‑sharer tenant can arbitrarily or as of right ask for pre‑emption with respect to some and not of all such holdings.

12. Subsection (1) of section 26‑F of the Bengal Tenancy Act provides that one or more co‑sharer tenants of the holding, a portion or share of which is transferred, may within four months of the service of the notice under section 26‑C, apply to the Court for the said portion or share to be transferred to himself or themselves. The co‑sharer tenant concerned may exercise his right of pre‑emption by applying to the Court for the portion or share covered by the kabala to be transferred to himself. I cannot be disputed in view of section 14 (2) of the Bengal General Clauses Act, 1899 that the words "holding", "portion" "share", though used in the singular, should include the plural. It, therefore, follows upon a reasonable construction that the word "holding" or "portion" or "share" according to the facts of each case or in the context of the transaction in question might mean holdings, portions or shares as well. In the kabala under con sideration it appears that portions of several holdings were intended to be conveyed and Mohitosh Biswas happened to be interested as a ca‑sharer tenant in more than one such holding. The clause one or more co‑sharer tenants . . . . may apply . . . for the said portion or share to be transferred to himself or themselves would, in my view, therefore, imply that a person, if he is a co‑sharer tenant, may apply to the Court for such portion or portions or share or shares to be transferred to himself as they appear to have been conveyed by the instrument concerned. Subsection (1) of section 26‑C of the Bengal Tenancy Act requires that every transfer shall be made by registered instrument and that a registering officer shall not accept for registration any such instrument unless the sale price, or where there is no sale price, the value of the holding or portion or share thereof transferred is stated therein. Here also in view of section 14 (2) of the Bengal General Clauses Act, referred to above, the transaction in question might include holdings or portions or shares as well.

13. The learned Advocate for the opposite‑party contended before me that the very fact that there were so many properties intended to be conveyed by the kabala in question would show that there was no single transactions as there were (13 items of) properties mentioned in the instrument. In that view of the matter, the learned Advocate further contended that although apparently the instrument seemed to be one kabala yet in fact, it was more than one kabala and, therefore, Mohitosh Biswas was entitled to ask for pre‑emption in regard to one such trans action.

14. It is not disputed that in the present case the transfer in question is one in the shape of kabala which is commonly understood as deed of sale. The word "sale" has been defined under section 54 of the Transfer of Property Act as a transfer of ownership in exchange of price paid or promised or part paid and part promised. It thus appears that the subject of sale is the ownership which might otherwise seem to be an abstract right though for all practical purposes it has to be regarded as a very tangible right in regard to an immovable property. A person being an owner of several properties or several shares or portions of one or more holdings is capable of transferring such ownership and that is usually regarded as a transaction of sale. The ownership is single, though in respect of more than one property. I am, therefore, of the opinion that although a deed of sale of conveyance might include several properties and might be operative in that way, yet in the absence of any clear provision to the contrary it should be constructed as one single transaction. Upon this view, I am inclined to think that these two kabalas which purported to convey about 13 items of properties should be regarded as one single transfer of ownership within the meaning of section 54 of the Transfer of Property Act. The word "transfer" as used in section 26‑C should also be construed in the same sense and upon a proper construction of the language employed in subsections (1) and (4) of section 26‑C along with subsections (1) and (2) of section 26‑F in so faras the words "trans fer and transferred" have used, it should be held that the Legislature, while intending to discourage strangers and encourage (sic)! provided that a right of pre‑emption at the instance of remaining] co‑sharer tenants surely did not mean that the applicant fort pre‑emption under section 26‑F of the Bengal Tenancy Act should have the liberty, while exercising his right of pre‑emption, to make a choice of his own and to take an arbitrary selection of one property out of several properties although he is in a position to ask for pre‑emption as a co‑sharer tenant with respect to all of them. If the intending pre‑emptor does not like a stranger to be a co‑sharer tenant with respect to one particular holding it i difficult to understand how he might like the same stranger in regard to another part of the property conveyed by same instru ment. I do not, therefore, think that the language as employed in section 26‑F of the Bengal Tenancy Act does not permit a co‑sharer tenant, while asking for pre‑emption, to pick and choose. Reading subsections (1) and (2) together it also becomes quit clear that the amount of the consideration money or the value of the transferred portion or share of the holding together wit compensation at the rate of 10 % has to be deposited by the co sharer tenant concerned to avail of the right of pre‑emption all contemplated in section 26‑F of the Bengal Tenancy Act. In the present case it being not disputed that no notice in terms of section 26‑C of the Bengal Tenancy Act was served the considera tion money as stated in the kabala has to be taken and the con sideration money to be deposited in terms of subsection (2). As already indicated above, the words "transfer", "portion" or "share" and "holding" should in appropriate cases be used in the plural sense. It will, therefore, be quite consistent to take the view that the applicant or applicants should appear to be co‑sharer tenants in regard to all such transfers, portions or shares of the holding or holdings and must deposit along with application that entire amount of the consideration money together with the statutory compensation which would be sufficient for the purpose of pre‑empting all properties capable of pre‑emption at the instance of such applicant or applicants. In this view of the matter, I am inclined to think that applicant Mohitosh Biswas wanted to pick and choose and sought for pre‑emption with respect to only one of the properties although he was capable o asking for pre‑emption in regard to more than one such property This being not permissible in law, the application seeking for a partial pre‑emption could not succeed and was liable to be dismissed.

15. The learned Advocate for the opposite‑party has sub mitted that the question of partial pre‑emption was not raised at any stage before this and it is necessary that further investigation should be made in the light of averment made in paragraph 6 of the supplementary affidavit in so far it has been stated that the applicant was possibly a co‑sharer tenant at the time when the record‑of‑right was prepared but since then there had been sub division of the tenancies according to law.

16. These two cases were heard on the 20th and 30th November 1961, and sufficient time has been given to the parties to come up with proper materials in support of their respective cases. No circumstances as required under section 88 of the Bengal Tenancy Act seem to have been specifically indicated. It is not stated that there was any consent in writing as required under section 88 of the said Act, or that any sub‑division was affected on the basis of any written consent given by the landlords and the entire body of the co‑sharer tenants. What is stated is that there was a sub‑division of the tenancies in presence of all the landlords and co‑sharers including the vendors of the petitioners in Baisakh, 1352 B. S. In the absence of any clear statement in the supplementary affidavit that there was any consent in writing in the terms of section 88 of the Bengal Tenancy Act, I do not think, any useful purpose will be served by asking the Courts below to make further investigation in that behalf. The supplementary affidavit in this respect seems to be too vague and evasive. I am, therefore, not prepared to accept the theory that there was any sub‑division of the tenancies as submitted by the learned Advocate for the opposite‑parties. The onus of proving such sub‑division surely lay upon Mohitosh Biswas and it cannot be ignored that he had full knowledge of the kabala in question when he decided to make applications in terms of section 26‑F (1) of the Bengal Tenancy Act. It was his duty to ask for pre‑emption either with respect to all the holdings in which he was a co‑sharer tenant he ought to have made some statement indicating that he ceased to be a co‑sharer tenant in regard to the properties appertaining to Khatian No. 23 or other khatians and that he was a co‑sharer tenant only with regard to Khatian No.

26. I do not think, in these circumstances, it to be necessary to embark upon a fresh investigation on this question.

17. The result, therefore, is that these two rules are made absolute with costs, the judgments and orders as passed by the Courts below are set aside and the applications for pre‑emption as made in terms of section 26‑F of the Bengal Tenancy Act are dismissed. The hearing fee of these two rules is assessed at one gold Mohar in each. S. B./A. H. Rules made absolute.