P L D 1958 Dacca 315 (PLP)

Grounds No. 2‑For that in view of the fact that Rs. 600 was paid as consideration money for whatever lands or share passed by the kabalas the Courts below acted illegally and with material irregularity in allowing the pre‑emption in face of the statutory prohibition contained in subsection (2) of section 26F of the Bengal Tenancy Act." Mr. Nandi appears on behalf of the petitioner, while the Opposite parties are represented by Mr. Mofakher. Mr. Nandi has Argued on behalf of the petitioner that under the Statute the applicants for pre‑eruption were bound to deposit the entire consi?deration money, and not any share thereof. Mr Mofakher appearing on behalf of the applicants for pre‑emption has again contended that under section 26F, sub‑clause (2), of the Bengal Tenancy Act the applicants for pre‑emption were only bound to deposit the entire consideration money or the value for the trans?ferred portion or share of the holding, and have actually deposited the proportionate value of the share of Abdus Samad in the holding, and, as such, the deposit was quite sufficient in the eye of law. He has again contended that in case, the deposit is not considered sufficient he is prepared to deposit the balance, and he has cited several authorities in support of his contention. Sub‑clause (2) of section 26F of the Bengal Tenancy Act lays down: "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 of share of the holding as stated in the said notice together with compensation at the rate of 10 per cent of such amount " , In this case no notice was served as Abdus Samad purported to sell the entire holding to the petitioner under two kabalas, dated the 4th July 1943, and 5th July 1943. The applicants for pre‑emption claimed to be co‑sharers of Abdus Samad to the same holding, and the case was remanded for decision of the two points, whether the deposit was sufficient , if not, whether the applicants were entitled to deposit the balance at this stage. The value as stated in the notice is ordinarily the same as the value stated in the conveyance itself. Mr. Mofakher has laid great stress on the clause "or the value of the transferred portion 'or shape of the holding". He contends that this clause indicates that the applicants can deposit the value or share of Abdus Samad in the holding. This argument has not much substance in it and must be rejected. The meaning of this clause will be evident if we refer to section 26C of the Bengal Tenancy Act. Section 26C of the Act lays down "Every transfer shall be made by registered instrument, except in the cases of a bequest or a sale in execution of decree or of a certificate signed under Bengal Public Demands Recovery Act, 1913 ; and a Registering Officer snail 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, and unless it is accompanied, etc., etc." So, where there is no sale price, the value of the holding or portion or share thereof transferred must be stated in the conveyance. Here the sale price is specifically mentioned in the two conveyances and under Statute the application for pre‑emption will not be entertained unless the applicants deposit in Court the amount of the consideration money at the time of making the application itself. This is a statutory provision which must be carried out. The right of pre‑emption by a co‑sharer raiyat is a special right created by special Statute, and a special summary procedure has been laid down by the Legislature for its enforcement. One primary condition for enforcing the right is that the applicant for pre?-emption under subsection (2) of section 26F must deposit the entire consideration money or the value of the transferred portion or share, as the case may be, at the time of making the application, and, in the absence of any such deposit, the Court is not bound, under a summary procedure laid down by the Act; and entitled tot entertain the application at all. A departure from this principle may lead to conflict and confusion in the minds of people seeking to enforce the right. 1f the applicants are permitted to deposit the proportionate value of any share, it may lead to confusion in some cases, for, actual share may be different from the share which the applicants might conceive at the date when the application is filed. Pre‑emptor's right is a right to purchase from the purchaser the Tatter's interest under the sale. If the purchaser has misconceived the extent of the share purchased by him, that does nit make it possible for the pre‑emptor to apply without depositing the entire consideration money. "There is no direct authority on this point, but there are some cases which iced some support to the principle indirectly, which l have discussed above. In the case of Nut Mohammed Sheikh v. Seraj Shaikh (56 C W 14 775), the .question was that whether the pre‑emptor had a right to claim any refund of the purchase money in case the pre‑emptee had not the interest which he purported to have in the properties on the basis of his purchase, His Lordship Justice P. N. Mukherjee held "Section 26F of the Bengal Tenancy Act recognises the princi?ple of caveat emptor, and is inconsistent with the idea of refund of the pre‑emption money of any part thereof in case of defect in the pre‑emptee's title. A claim for refund cannot, accordingly, be allowed in view of the terms of section 26F (7) of die Bengal Tenancy Act. Even apart from Statute, a claim for refund based on defect of the pre‑emptee's title is foreign to the subject of pre‑emption. Pre‑emption implies involuntary transfer, and in case of involun?tary transfer, the rule is that the transferee takes the transfer at his own risk. There is no question of any contract, and there is thus no scope for any application of the doctrine of refund for failure of consideration." It must be remembered that section 26F only contemplates a transfer of the holding for the transferred portion or share thereof. In other words, it only contemplates that the pre‑emptor shall be entitled to acquire by pre‑emption whatever has been transferred to the original transferee, and not what has been transferred to and divided up to suit the convenience of the pre‑emptor. The applicant under section 26F cannot get relief without depositing the entire amount of consideration money mentioned in the conveyance, and paid by the purchaser of the properties together with the statutory compensation, and any person seeking to exercise that right must, under the law, pay the purchaser all that has been paid by the purchaser for. transfer of the entire interest of the tenant. It was contended by Mr. Mofakher on behalf of the opposite parties that if the applicants are to deposit the entire consideration money, there may be hardship in his case because they would have to deposit the value of their own share. Their may be hardship in a case or two, but it has been pointed out by their Lordships in the case of Nural Hossain Malik and another v. Mihilal Sheikh and others (A I R 1948 Cal. 144) It is a well‑settled rule of law that it is better that hardship would be caused in one or two individual cases than that the certainty of the law, particularly of Statute law, should in an way be disturbed by artificial constructions. When the language B of a provision is clear, it cannot be strained or twisted by the Court in order to make it yield what is thought to be beneficial meaning." I am, therefore, of opinion that the deposit in this case, not being of the entire consideration money, was not sufficient, and, as such, the application for pre‑emption must be dismissed. The second question is whether the applicants can be allowed to deposit the balance of the consideration money at this stage. Mr. Mofakher has drawn my attention to the case of Jatindra Kumar Chakraborti v. Chandra Kumar and others (38 C W N 616) in support of his contention. In that case it was held "Where on a certain day the landlord filed an application under section 26F of the Bengal Tenancy Act, and also filed along with it challans for the deposit of money required, but the challans were passed and the deposit of money was made on a subsequent day , held that the application was in order." Mr. Nandi has again drawn my attention to the case of Nural Hossain Malik and another v. Mihilal Sheikh and others,, to which 1 have already referred, and where their Lordships Chakravatli and Ellis, JJ., held : . . "An application for pre‑emption under section 26F must be dismissed if the deposit contemplated by the section is not made at the time of making the application, but is made subsequently, though within period of limitation. The application, however, will not be dismissed if the circumstances are such that the deposit may be deemed to have been made at the time of making the application." In this case the applicants have deposited only share of the purchase‑money and they have not deposited the balance. The principle of the decision in Jatindra Kumar Chakraborti v. Chandra Kumar and others does not apply to the facts of this case. In Nural Hossain Mallik and another v. Mihilal Sheikh and others, referred to above, his Lordship Chakravarti, J., has discussed the authorities on the point and has found that there is clear statutory provision in subsection (2) of section 26F of the Act that the application shall be dismissed unless the applicants deposit the entire consideration money, etc. It is only in some exceptional cases where the circumstances are such that the deposit may be deemed to have been made at the time of making the application that some indulgence was shown to the applicants, and their Lordships held that the only way in which the Court can deal with the application, "when it finds that there was no deposit accompa?nying it, is to dismiss it at once, except in cases where the circumstances are such that the deposit may be deemed to have been made at the time of making the application. I respectfully agree with the above decision and hold that the applicants in the circumstances are not entitled to deposit the balance. As a result, the Rule Is made absolute with costs and the application for pre‑emption stands dismissed. Z. A. S.??????????? Rule made absolute.