P L D 1962 Dacca 458 (PLP)

5. Mr. M. A. Aziz, learned Advocate, appearing on behalf of the petitioner purchaser has urged that in view of the decision in the case of Babu Haque v. Sm. Lal Jan Bibi and others ((1956) 8 D L R 362), partial pre‑emption, as has been allowed in this case, is not permitted by law and the application for pre‑emption ought to have been rejected. Mr. M. A. Aziz has also relied upon the decisions in the case of Surabala Basu v. Rukmini Kanta Barman Roy and another (42 C W N 288) and in the case of Behary Lal Roy and others v. Pulin Behary Paul and another (38 C W N 654).

6. Mr. U. K. Roy, learned Advocate, who has appeared on behalf of the opposite‑party‑pre‑emptor, has urged that the cases reported in 38 C W N 654 and 42 C W N 288, referred to above were decided under the old law before the amendment of the Bengal Tenancy Act 1938 and the facts of the case reported in 8 D L R are quite distinguishable from the facts of the present case. He has also urged that the facts of the cases reported in 42 C W N and 38 C W N referred to above are also distinguish able from the facts of the present case and none of these cases is applicable to the facts of the present case. Mr. Roy contends that in this particular case the vendors sold lands described in 2 Schedules in the kabala. The land of Schedule 1 appertains to one holding and the lands of Schedule 2 of the kabala which are the disputed lands appertain to different holdings and the vendors sold lands of each Schedule for a. specific price mentioned in the kabala, that is, they sold Schedule 1 land for a considera tion of Rs. 400 and Schedule 2 lands, that is, the disputed lands, for a consideration of Rs. 600 and the purchaser opposite‑party paid the said price as mentioned in the kabala for each of the Schedules. No notice was, however, served as to this transaction upon the applicant for pre‑emption stating the sale price to be Rs. 1,

000. The applicant for pre‑emption, that is, the opposite- party before me came to learn about this transaction and preferred to pre‑empt the disputed lands which were sold for a consideration of Rs. 600 as mentioned in the kabala on depositing such amount with the statutory compensation and as such this case is covered by subsection (2) of section 26‑F of the Bengal Tenancy Act, that is, amendment Act 1938 (Bengal Act VI of 1938). Subsection (2) of section 26‑F 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 transfer red portion or share of the holding, as stated in the said notice, together with compensation at the rate of ten percentum of such amount." Thus one primary condition of pre‑emption is that the applicant for pre‑emption under subsection (2) of section 26‑F of the Bengal Tenancy Act, 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 under its summary procedure laid down in the Act, cannot entertain the application at all. As has been stated above, it is the common case of both the parties that no notice of such transfer as contemplated under section 26‑C of the Bengal Tenancy Act was ser ved upon the applicant‑pre‑emptor. If such notice was served and the price of the properties sold to the purchaser was mentioned to be Rs. 1,000 in that case the applicant, would be bound to deposit the entire amount as mentioned in the notice although he seeks to pre‑empt one of the two schedules transferred to the purchaser. This view is supported by the decision reported in 8 D L R

362. That was a case in which one of the co‑sharers sold the entire holding to the opposite‑parties in which the applicants' pre‑emptors had 7/15th share of the holding by inheritance and the vendor co‑sharer had only the remaining share. The applicants pre‑emptors sought pre‑emption in respect of the share of the vendor and deposited the value thereof proportionate to his share. Chakraborti, J., observed as follows: "Section 26‑F, 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 and divided up to suit the convenience of the pre‑emptor. The applicant under section 26‑F, cannot get relief without deposit ing 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."

7. In my opinion, the facts of this case are quite distin guishable from the facts of this particular case. So far as the other two case, namely, the case reported in 38 C W N 654 and the case reported in 42 C W N 288 are concerned, it may at once be stated that those cases were decided under the old law. In the case of Behary Lal Roy and others v. Pulin Behary Paul and another, Costello J., observed at page 656 of the report as follows "Section 26‑F only contemplates a transfer to the immediate landlord of the holding for the transferred portion or share thereof; in other words it only contemplates that the landlord shall be entitled to acquire by pre‑emption whatever has been transferred to the original transferee and not what has been transferred and divided upto suit the convenience or pocket of the landlord. In my opinion the landlord must take the whole of what is transferred or nothing". . ., ,., This principle was followed by Chakraborti, J in, the case reported in 8 D L R referred to above. In the case of Surabala Basu v. Rukmini Kanta Barman Roy and another referred to above, S. K. Ghose, J. observed: "It is contended that since the sale was of two lots, each lot represents a separate transaction and, therefore, the petitioner is not‑liable to exercise his right of pre‑emption in respect of both lots and that he can be given the option to pre‑empt one of the lots. It seems to me however that the right of pre -emption in section 26‑F arises out of a notice under section 26‑C or 26‑F, which refers to one transfer. The property covered by that transfer may be a "portion or share", but whatever it is, the whole property transferred must be the subject‑matter of the application under section 26‑F. In the present case it appears that the two lots comprise one holding but they were divided for the sake of convenience. I think the decision in the case of Behary Lal Roy v. Polin Behary Paul should be followed and the petitioner must pre‑empt both the plots or his application must be refused". It is, therefore, clear that the decision in 38 C W N 654 as referred to above was followed by S. K. Ghose, J., in the case of Surabala Basu v. Rukmina Kanta Barman Roy referred to above. In both these cases the landlord sought to pre‑empt under section 26‑F of the Bengal Tenancy Act as is stood then. Sub section (2) of section 26‑F of the Bengal Tenancy Act prior to the amendment Act of 1938 (Bengal Act VI of 1938) stood as follows "The application shall be dismissed, unless such landlord at the time of making it; deposits in Court the amount of the consideration money or the value of the property, as the case may be, as stated in the notice served on him, together with compensation at the rate of ten per cent of such amount." Whereas subsection (2) of section 26‑F of the amendment Bengal Tenancy Act of 1938 runs as follows "The application shall be dismissed, unless the applicant or applicants at the making of 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."

8. Thus the change in law by the amending Act, 1938 gives wider scope to the pre‑emptor for pre‑empting any part of share oh a holding or a plot by depositing 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 particular case as has bee already stated two schedules of lands were transferred to the purchaser (petitioner before me). These two schedules appertained to different holdings. The price of schedule 1 land was mentioned as Rs. 400 and the price of schedule 2 lands, which are the disputed lands was mentioned as Rs. 600 in the deed of sale. The pre‑emptor admittedly got no notice of the sale. On learning about the transfer he took certified copy of the kabala and finding the price of each schedule specifically mentioned in the kabala applied for pre‑emption of the disputed lands which are the schedule 2 lands of the kabala. So, in my judgment, it is not a case of partial pre‑emption. So the principles of law relied upon by the learned Advocate for the petitioner do not at all apply to the facts of the present case. In the 8 D L R case, the pre‑emptors put their own valuation in respect of the share of the lands they sought to pre‑empt which might be more or less and even the share of the vendor might be different from the share which the applicants misconceived when the application was filed. In that view of the matter it was held "that section 26‑F 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 and divided up to suit the convenience of the pre‑emptor" In this particular case before me as has been already stated, the pre‑emptor did not divide up the property sold to suit his convenience, rather it was the vendor who sol two different properties at two different prices and the vendee, L namely, the opposite‑party before me paid those different prices for different properties. I, therefore, hold that it is not a case of partial transfer as urged by Mr. M. A. Aziz. The Rule is accordingly discharged. Hearing fees assessed at one Gold Mohar. K. B. A. Rule discharged.