P L D 1961 Dacca 321 (PLP)

MURSHED, J.‑These are three revisional applications under section 1 15 of the Code of Civil Procedure, and they have been heard together by me. They all raise a common point of law and this judgment will dispose of these applications made by the same petitioner.

2. The petitioner was a co‑sharer in respect of certain lands which were sold to opposite‑parties who are aboriginals resid ing in the District of Mymensingh. He filed three applications under section 26‑F of the Bengal Tenancy Act in order to exercise his right of pre‑emption under the said section. They were resisted on several grounds, the main ground being that the said applica tions were barred by the provisions of section 49‑K under Chapter VII‑A of the Bengal Tenancy Act. Chapter VII‑A of the Bengal Tenancy Act has imposed restrictions on alienations of land by aboriginals. It gives certain protection to aboriginals in respect of transfer of their lands. The Chapter commences with sec tion 49-A and ends with section 49‑0, and there are various provisions in this Chapter which place restrictions on certain kinds of transfers of the land of aboriginals. Section 49‑K imposes alt embargo upon Courts to order a sale of the right of an aboriginal tenure‑holder, raiyat or under‑raiyat in his tenure of holding, or in any portion thereof except in the manner provided under that section.

3. The learned Munsif, who decided these applications, held that section 49‑K of the Bengal Tenancy Act does not bar appli cations under section 26‑F of the said Act in respect of lands purchased by aboriginals. He, therefore, allowed the applications. Thereupon the opposite‑parties preferred three appeals which were heard and disposed of by Mr. B. Ahmed, Subordinate Judge, Mymensingh. The learned Subordinate Judge came to a finding that the aforesaid section 49‑K bars the applications under sec tion 26‑F of the Bengal Tenancy Act. The learned Subordinate Judge, consequently, set aside the order passed by the learned Munsif, and dismissed the applications. Against the aforesaid appellate order these revisional applications are directed.

4. Admittedly, the opposite‑parties are aboriginals, and it is also admitted that the provisions of Chapter VII‑A of the Bengal Tenancy Act, which includes section 49‑K, apply to them.

5. Mr. M. A. Aziz appearing for the petitioner has contended that in allowing application under section 26‑F of the Bengal Tenancy Act the Court is not called upon "to order a sale" of the land of the opposite‑parties. He has argued that section 49‑K has therefore, no application in reference to section 26 F of the Act. He has further contended that the right of pre‑emption given in section 26‑F does not involve a sale of the land by the opposite- parties. Mr. D. C. Bhattacharjee, who has appeared for the opposite‑parties before me, has on the other hand, contended that section 26‑F of the Bengal Tenancy Act provides for the exercise of a right of pre‑emption which is of the same kind as a right of pre‑emption under the Muhammadan Law. He has also contended that the operation of section 26‑F involves a sale of the disputed land to the applicants by the opposite‑parties. In these circum stances he has urged that section 49‑K of the said Act bars an application under section 26‑F when the purchaser of the occu pancy raiyati is an aboriginal. The substance of his argument is Section 49‑K of the Bengal Tenancy Act prohibits all Courts from passing any order for the sale of the right of an aboriginal tenure holder, raiyat, etc. It has, therefore, been argued that when an- aboriginal purchases an occupancy‑raiyati, he cannot be made to part with it by a co‑sharer of the vendor seeking to exercise a preferential right to purchase the same under the provisions of section 26‑F of the Bengal Tenancy Act. The basis of this argu ment rests on the contention that the right of pre‑emption under the said section 26‑F involves a sale from the purchaser to the pre‑empting co‑sharer applicant. The relevant provisions of sections 26‑F and 49‑K are set out hereafter.

6. Thus, the only pint which has been canvassed before me is whether sections 49‑k bars the operation of section 26‑F of the Bengal Tenancy Act when the prior purchaser is an aboriginal to whom Chapter VII‑A of the Bengal Tenancy Act applies ? The petitioner's contention is that, it does not, whereas the contention of the opposite‑parties is that, it does.' These applications there fore, pose a simple and straightforward question, but the point is of first impression, and is of great importance to the litigant public of this Province. In view of some conflict of opinions with regard to the real nature‑and character of the right of pre‑emption. I was asked to refer, this case to a large Bench. But, as I have formed a definite opinion on the point in issue, after giving a con siderable thought to it, I have decided to pronounce my judgment, and to dispose of these applications on the view that I have taken with regard to provisions of section 26‑F of the Bengal Tenancy Act.

7. The question is : What is the nature of the provisions of section 26‑F of the Bengal Tenancy Act? Mr. Bhattacharjee has contended that it represents a sale by the opposite‑parties to the applicant. He has argued that the provisions of section 26‑F of the Bengal Tenancy Act correspond to the exercise of a right of pre‑emption under the Muhammadan Law. In support of this contention he has cited before me the case of Gobardhan Bar v. Gunadhar Bar (A I R 1941 Cal. 78). In the aforesaid case B. K. Mukherjee, J., has observed.(at page,80 of the report) as follows :‑ "The view I am taking does not militate in any way, with the general principles relating to the law of pre‑emption. Under the Muhammadan law also, no right of pre‑emption can arise unless the sale is complete, and there is a total cessation of the vendor's right to the property. It may be pointed out here that the right of Shafa as recognised by the Muhanrmadan Law as well as the right of re‑purchase created by section 26‑F, Bengal Tenancy Act are not rights of pre‑emption in the sense in which they were used by the Roman lawyers. Pre‑emption, according to Roman Law, connoted an obligation on the part of the intending vendor to sell preferentially to the pre‑emptor if he offered as good condition as any intending vendee. The right of purchase that is created by section 26‑F Bengal Tenancy Act, like the right of pre‑emption under the Muhammadan Law, attaches an obligation to a particular status which binds the purchaser from the person obliged to hand over the property purchased to the obligee on receiving the price paid by him for it with or without additional compensation." It will be noticed that Mukherjee, J . in the above case has not said that under section 26‑F the purchaser is obliged to sell the property to the applicant. He has merely stated that the purchaser is obliged to hand over the property to the applicant on receipt of the price paid by him. Mr. Bhattachariyya has further cited before me a decision of a Full Bench of the Calcutta High Court in the case of Furman, Khan v. Bhurut Chunder Shah Chowdhury and others, Shaikh koodrutulla v. Mohinee Mohun Shaha and others and Ram Coomar Roy v. Jan Mahomed (13WR21(FB)=4BLR134). In the aforesaid Full Bench case the question was: Whether in the absence of a local custom with regard to pre‑emption amongst Hindus, the Mohammadan Law of pre‑emption, on the ground of co partner ship or vicinage would apply, when the person claiming the right of pre‑emption and the vendor are both Mohammadans but the purchaser is a Hindu.? Barnes Peacock, C. J., Kemp arid Mitter, JJ., held that it does not, and Norman and Macpherson, JJ., held that it does. In considering the above question,' Mitter, J., observed that a right of pre‑emption under the Mohammadan law does not postulate a defect in the title of the vendor, and that it partakes the nature of a re‑purchase from the purchaser. He has observed as follows: ‑ "These passages conclusively prove that the right of pre emption is nothing more than a mere right of re‑purchase from the purchaser, who is recognised for all intents and purposes as the full legal owner of the property; drat it is a right which arises not from any antecedent defect of title in the vendor, but comes into existence after the right to the property has com pletely passed to the purchaser; and lastly. that it is a right of an extremely feeble nature solely and exclusively based upon considerations of `apprehended inconvenience' to the pre‑emptor, if the purchaser is not compelled to part with it on receiving back the full amount of purchase‑money which he had paid to his vendor." Barnes Peacock, C. J., while concurring with the aforesaid judg ment, did not express his concurrence with all the arguments of Mitter, J. He merely proceeded on the footing that it would not be in consonance with equity, justice and good conscience to make a Hindu purchaser of a property from a Mohammadan, subject to a right of pre‑emption from another Muslim co‑partner or neigh bour of the vendor. To him it was a question of conflict of laws, and he held that the Muhammadan Law being a personal law, should not be applied to a Hindu purchaser in such circumstances, specially because the right of pre‑emption does not involve a defect in the title of the vendor. Barnes Peacock, C. J., has indicated in the judgment pronounced by him that he had taken the opposite point of view until he had seen the judgment delivered by Mitter,J. It is clear that had grave doubts about the correctness of the majority opinion of the Full Bench. Kemp, J., concurred with the answer given by Mitter, J only on a consideration' of principles of conflict of laws. Norman and Mecpherson JJ. held the con trary view. It will be seen that in the aforesaid case the nature of pre‑emption under Muhammadan Law came to be discussed inci dentally while deciding the main question which was posed before the Full Bench. Even on the question posed before it, the Full Bench by a mere majority came to the decision reached by it. Mr. Bhattacharyya has also cited before me the case of Deonandan Prashad Singh and another v. Ramdhari Chowdhury and others (21 C W N 786PC=AIR1916PC179). I will notice, shortly, that this case does not support the contention of Mr. Bhattacharyya that the transaction represented by sec tion 26‑F is a sale from the prior purchaser to the applicant. Upon this decision Mr. Bhattacharyya has argued that an appli cation under section 26‑F of the Bengal Tenancy Act involves a compulsory sale, by the opposite‑party, of the disputed land to the applicant.

8. I shall now proceed to discuss whether pre‑emption involves a sale from the transferee to the applicant for the exercise of this right. In this connection it would be useful to refer to a decision of a Full Bench of the Allahabad High Court in the cases of Gobind Dayal v. Inayatullah and Brij Mohan Lal v. Abul Hasan Khan (I L R 7 All. 775). In this case of the Full Bench included Mr. Justice Mahmood. The point before the Full Bench was the same as that before the Calcutta Full Bench. The Allahabad Full Bench unanimously decided that a Muhammadan could, exercise his right of pre‑emption against a Hindu purchaser from a Muhammadan co‑partner of neighbour. Mahmood, J., who delivered the main judgment, has exhaustively dealt with arguments of Matter, J., in the aforesaid case, and has given his reasons for dissenting from the opinion expressed by Mitter, J. He has defined the right of pre‑emption in the following terms (which occur at page 799 of the report): "I think I am strictly within the authorities of that law when I say that pre‑emption is a right which the owner of certain immovable property possesses, as such, for the quiet enjoyment of that immovable property, to obtain, in substitution for the buyer, proprietary possession of certain other immovable pro perty, not his own, on such terms as those on which such later immovable property is sold to another person. I could easily support every word of this definition by original Arabic texts of the Muhammadan Law itself, but I will confine myself only to such texts as bear immediately upon the main propositions involved in this case. I may, however, observe that the nature of the right, as appears from the definition which I have given partakes strongly of the nature of an easement, the 'dominant tenement' and the 'servient tenement' of the law of easement being terms extremely analogous to what I may respectively call the 'pre‑emptive tenement' and 'pre‑emptional tenement' of the Muhammadan Law of pre‑emption. Indeed, the analogy goes further for, I shall presently show that the right of pre‑emption like an easement exists before the injury to that right can give birth to a cause of action for a suit, sale in the one case corres ponding to the invasion of the easement in the other." Mahmood, J., has further observed (at pages 808, 809 and 810) as follows:‑ "I have now to deal with the argument that the right of pre emption under the Muhammadan Law is a mere right of repur chase, not from the vendor, but from the vendee. I trust what . I have already said goes far to show this conclusion cannot be right. If by the expression 're‑purchase' is meant the institution of a new contract of sale other than that entered into by the vendor and the vendee, the hypothesis becomes obviously erroneous . . . . . . . . . Further, if pre‑emption is only a right of 're‑purchase' from the vendee who, ex‑hypothesis has under the sale, derived an absolute, title, unhampered by the pre‑emp tive right there, is no reason which would prevent the vendee from insisting that the term of the new sale should be other than 4hose under which he himself purchased. That this would he the necessary consequence of the hypothesis, seems to me to be as clear as the proposition that every absolute owner is at full liberty to sell or not to sell his property, and that if he chooses to sell it, he can make his own terms as to the bargain of sale. That such a result is not only warranted by the Muhammadan Law of pre‑emption, but would positively strike at the very root .of the right itself, seems to me to be too obvious to require any explanation. But the Muhammadan Law of pre‑emptio4 involves no such anomalous inconsistencies of reasoning, because the right of pre‑emption is not a right of 're‑purchase' either from the vendor or from the vendee, involving any new contract of sale ; but it is simply a right of substitution entitling the pre‑emptor, by reason of legal incident to which the sale itself was subject, to stand in the shoes of the vendee in respect of al the rights and obligations arising from the sale under which he has derived his title. If it is, in effect, as if in a sale deed the vendee's name were rubbed out and the pre‑emptor's name inserted in its place." In another Full` Bench decision of the Allahabad High Court in the case of Deoki Nandan v. Sri Ram (I L R 12 All. 234). Mahmood, J., has reiterated the principles laid down by him in the former Full Bench case, I L R 7 All.

775. At the present moment, 1 am not called upon to decide as to whether the provi sion of section 26‑F of the Bengal Tenancy Act incorporates in toto the doctrine of pre‑emption in Muhammadan Law. If it does, I respectfully agree with the observations of Mahmood, J., in the cases of Gobind Dayal v. Inayatullh and Brij Mohan Lal v. Abul Hasan Khan in that a right of pre-emption is not a right of re‑purchase "either from the vendor or from the vendee, involving any new contract of sale, but it is simply a right of substitution, entitling the pre‑emptor, by reason of a legal incident to which the sale itself was subject, to stand in the shoes of the vendee in respect of all the rights and obligations arising from the sale under which he has derived his title." Mahmood, J. has been cited with approval by the Judicial Committee of the Privy Council in the case of Deonandan Prashad Singh and another v. Ramdhari Chowdhury and others. Lord Buckmaster L. C. in delivering the opinion of the Board has observed as follows:‑ "A person claiming an order of pre‑emption cannot be regarded in the same light as an ordinary purchaser of an estate. His right is, when an estate has been sold, to acquire the property from the purchaser at the price paid. If the necessary formali ties are observed, and the purchaser assents to the claim, posses sion is given by mutual consent and no difficulty arises ; but if the claim be disputed and suit must be brought, the parties are regulated by the Code of Civil Procedure, which in this respect embodies the principle of the Muhammadan Law. Section 214 of the Code of 1882 is in these words : `

214. When the suit is to enforce a right of pre‑emption in respect of a particular sale of property, and the Court finds for the plaintiff, if the amount of purchase money has not been paid into Court, the decree shall specify a day on or before which it shall be so paid, and shall declare that on payment of such purchase money, together with the costs (if any) decreed against him, the plaintiff shall obtain possession of the property, but that if such money and costs are not so paid the suit shall stand dismissed with costs.' "It, therefore, follows that where a suit is brought it is on payment of the purchase money on the specified date that the plaintiff obtains possession of the property, and, until that time, the original purchaser retains possession, and is entitled to the rents and profits. This was so held in the case of Deoki Nandan v. Sri Ram, and there Mr. Justice Mahmood, whose authority is well recognised by all, stated that, it was only when the terms of the decree were fulfilled and enforced that the persons having the right of pre‑emption become owners of the property that such ownership did not vest from the date of sale, notwithstanding success in the suit, and that the actual substitution of the owner of the pre‑emption property dates with possession under the decree." It is clear from the above that Judicial Committee of the Privy Council has approved the definition of pre‑emption given by Mahmood, J., to the effect that it is really a substitution of owner ship in respect of the pre‑empted property. In this connection it would be useful to consider some definitions of the term "pre‑emp tion." In Tomlin's Law Dictionary it is defined as the "right of first buying of a thing". In the Imperial Dictionary it has been defined as follows: "The word. `pre‑emption' is derived from `pre-emptio'; it is the act of buying before another". In Sweet's Law Dictionary the right of pre‑emption is defined as the "act of buying before another."

9. In the light of the aforesaid observations, it will be con venient to discuss the provisions of section 26‑F of the Bengal Tenancy Act. It will be noticed that section 26‑F does not describe the right of a co‑sharer of the transferor as that of "pre‑emption", but there can be no doubt that the right is something in the nature of a right of pre‑emption. I shall now discuss the nature of this right. The relevant portions of this section read as follows :‑ "(1) (e) . . . .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 . . . . . . . (2) The application shall be dismissed unless the applicant or applicants at the time of making it, deposit in Court the amount of the consideration money or the value of the transferred portion or share of the holding, as stated in the said notice, together with compensation at the rate of ten per centum of such amount. (5) The Court shall thereafter make an order allowing the applications under subsection (1) of such applications [whether they applied under subsection (1) or subsection (4)) who have made the deposits required by this section, and directing that the deposits made under subsections (2) and (3) shall be paid to the transferee or, to such other persons as the Court thinks equitable ... ... (7) From the date of the making of the order under subsection (5)‑ (a) the right, title and interest in the portion or share of the holding, accruing to the transferee from the transfer shall subject to the provisions of section 22, and to any orders passed under subsection (6), be deemed to have vested, jointly and free from all incumbrances which have been annulled or created after the date of the transfer, in the co‑sharer tenants, whose applications to purchase have been allowed under this section. (8) When a transferee is divested of his right, title and interest under the provisions of subsection (7), be shall for the purposes of clauses (a), (c) and (d) of section 156 be deemed to be a raiyat ejectment commencing on the date on which the application under subsection (1) was made . . . . The above provision of section 26‑F should be read along with section 26‑B and 26‑C of the Act. Under section 26‑B the hold ing of an occupancy‑raiyat is made transferable subject to the right given to a co‑sharer of the transferor by virtue of section 26‑F of the Act. Section 26‑C provides for a compulsory notice to the said co‑sharer in case of such transfer. Section 26‑B reads "The, holding of an occupancy raiyat or a sharer or a portion thereof, together with the right of occupancy therein shall, subject to the provisions of this Act, be capable of being trans ferred in the same manner and to the same extent as other immovable property."

10. It will thus be seen that the provisions of section 26‑F' of the Bengal Tenancy Act quoted above, make it clear that the right of pre‑emption specified in the said section is nothing but "a right which the owner of certain immovable property possesses, as such for the quite enjoyment of that immovable property, to obtain, in substitution for the buyer, proprietary possession of certain other immovable property, not his own, on such terms as those on which such latter immovable property is sold to another person," and that "it is simply a right of substitution, entitling the 'pre‑emptor, by reason of a legal incident to which the sale itself was subject to stand in the shoes of the vendee in respect of all the rights and obligations arising from the sale under which he has derived his title. It is, in effect, as if in a sale deed, the vendee' s name were rubbed out and the pre‑emptor's name inserted in its place." The right given to a co‑sharer by section 26‑F, is some thing sui generis, and it stands in a class apart. It would be incorrect to describe as a re‑sale by the transferee to the co‑sharer applicant. It is not a re‑purchase of the property from either the vendor or the vendee. It is a right to acquire the property at the same price as given by the transferee. Under section 26‑F of the Bengal Tenancy Act the Court has to pass an order allowing the application, and when such an order has been made by the Court, then the right, title and interest in the portion or share of the holding accruing to the transferee automatically vest in the applicant (pre‑emptor), and the transferee opposite -party is also automatically divested of such right, title and interest. In other words, as soon as the application under section 26‑F of the Bengal Tenancy Act is allowed, the applicant stands substituted in the place of the transferee opposite‑party as if in a sale deed the name of the transferee is rubbed off, and that of the applicant is put in its place. It is perfectly evident that the transaction covered by section 26‑F of the Bengal Tenancy Act exactly fits in with definition of the right of pre‑emption as given by Mr. Justice Mahmood. I would also recall the observations of Lord Buck master, L.C., in the case of Deonandan Prashad Singh and another v. Ramdhari Chowdhury and others, that "a person claiming an order of pre‑emption cannot be regarded in the same light as an ordinary purchaser of an estate". Of course, the result, of the operation of section 26‑F involves an automatic transference of the right of the vendee opposite‑party to the pre‑empting applicant ; but it would be doing a great violence to the connotation of the term "sale" to describe the transaction to be a sale from the vendee to the pre‑empting applicant. This will be further evident from the following analysis of the provisions of section 26‑F of the Bengal Tenancy Act : (i) subsection (1), gives a co‑sharer tenant a right, when a portion or a share of the holding is trans ferred, to apply to the High Court for the said portion or share to be transferred to himself ; (ii) under section (2) the appli cant is required to deposit the price paid by the prior transferee together with a compensation of ten per cent on such price ; (iii) under subsection (5) the Court is required to make "an order allowing the application"; (iv) thereafter under subsection'(7) the right, title and interest in the said portion or share of the holding automatically vests in the co‑sharer tenant whose application has been allowed. This necessarily involves an automatic divesting of the right, title and interests of the prior transferee.

11. It is thus evident that the applicant stands automatically "substituted" in the place of the transferee opposite‑party. Under section 26‑F, the applicant is given the right to stand in the shoes of the transferee as if he was the original purchaser and not the transferee. There is no "sale" from the transferee to the applicant. By a fiction of law the successful applicant under section 26‑F is treated as a person who had purchased the property prior to the transferee with this difference that the property vests in the appli cant on and from the date when his application is allowed.

12. It, therefore, follows that section 49‑K of the Bengal Tenancy Act does not apply to an application under section 26‑Fl of the said Act. I would further discuss his point from another point of view. Section 49‑ K of the Bengal Tenancy Act reads as follows :‑ "Notwithstanding anything in this Act, no decree or order shall be passed by any Court for the sale of the right of an aboriginal tenure‑holder, raiyat or under raiyat in his tenure or holding, or any portion thereof, nor shall any such right be sold in execution of any decree or order ." It is patent from the language in which the aforesaid section is couched that the only embargo on the powers of the Courts is, that no decree or order shall be passed by any Court for the sale of the right of an aboriginal tenure‑holder. The provision of section 49‑K must be interpreted in accordance with the express terms of the section; it should not be stretched inferentially or by analogy beyond the plain meaning of words that are used in the said section. As we have seen above, the aforesaid section prohibits the Court from making an order for the sale of the right of an aboriginal tenure‑holder, raiyat or under‑raiyat in his tenure or holding. If we now turn to section 26‑F of the Bengal Tenancy Act, we. will find that in dealing with an application under the said section, the Court is not called upon to order a sale of the right of an aboriginal tenure‑holder raiyat and under‑rail at in his tenure or holding. The Court has to satisfy itself that the applicant is a co-sharer in respect of the land, and that he has deposited the requisite amount of money under subsection (2) of the said section, and then it shall pass an order allowing the application. No order for the sale of the land of the transferee opposite to the pre empting applicant is passed by the Court.

13. It is clear that under various provisions of the Bengal Tenancy Act, for instance under section 65, the Court may be called upon to pass a decree or order for the sale of the right of an aboriginal tenure‑holding, raiyat or under raiyat in his tenure or holding, but section 49‑K of the said Act prohibits the Court from making such an order. It cannot be said that in accordance with the terms of section 49‑K the Court is prevented from making an order subsection (5) of section 26‑F of the Bengal Tenancy Act the result of which would be to cause an automatic transference of the right of an aboriginal tenure‑holder; raiyat or under‑raiyat in his tenure or holding. We have already seen that such transference does not amount to a sale strictly speaking, and, in any event, the Court does not pass an order for the sale of the right of the aboriginal. From the express provisions of section 49‑K, it is clear that this section applies only where the Court is required to order a "sale" of the right of an aboriginal. There is no provision in this section to the effect that no order shall be passed by any Court, the result of which will be to cause a transference of the right of an aboriginal, no matter how such transference takes place. To hold that section 49‑K prevents the Court from allowing an appli cation under section 26‑F would be to read into the former section something which is not provided there.

14. Mr. Aziz has argued that the provision of the Bengal Tenancy Act under Chapter VII‑A, beginning from section 49‑A to section 49‑0, provide for various protections against the transference of the rights of an aboriginal. He has further argued that none of the aforesaid, provision contemplates the creation of a special privilege for an aboriginal so that when he purchase's a share of the interest of a raiyat, he would be free from the inci dents and obligations that are normally attached to such a purchase. He has contended that the sale of a portion or a share of the hold ing of an occupancy‑raiyat is itself subject to the provisions of section 26‑F, and that this is clear from the provisions of sec tions 26‑B and 26‑C (4) of the Act. Mr. Aziz has elucidated his point by saying that the aforesaid provisions of section 49-K do not intend to confer any licence on an aboriginal to purchase a share or a portion of the holding of an occupancy raiyat, free from the obligations that are normally attached to such purchase by virtue of the provisions of section 26‑B, 26‑C, and 26‑F of the Act. In my opinion there is substance in the contention of the learned Advocate for the petitioner. It is; however, unnecessary to dwell on this point any longer.

15. I hold that the exercise of a right of pre‑emption under section 26‑F of the Bengal Tenancy Act, does not involve "a sale" by the transferee opposite‑party to the transferor applicant. I further hold that under section 26‑F the Court is not called upon to order a sale of the right of the transferee opposite‑party. My conclusion, therefore, is that section 49‑K of the Bengal Tenancy Act does not govern section 26‑F of the said Act, and does not bar the operation of section 26‑F in a case where the transferee of a share or portion of the holding of an occupancy‑raiyat is an aboriginal to whom the provision of the said section 49‑K applies.

16. For the reasons stated above, these Rules are made absolute. The order passed by the lower Appellate Court is set aside, and that passed by the learned Munsif is restored. The applications of the petitioners under section 26‑F of the Bengal Tenancy Act are, accordingly, allowed. I, however, make no order as to costs of these applications. K. B. A. Rules made absolute.