Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Petitioner: YAKUB ALI MONDAL VS Respondent: AKHER ALI MONDAL (SHEIKH)
P L D 1956 Dacca 39
P L D 1956 Dacca 39
Before Ibrahim, J
YAKUB ALI MONDAL‑Petitioner
versus
AKHER ALI MONDAL (SHEIKH) ‑Opposite‑Party
Civil Rules Nos. 476, 477, 478 and 479 of 1952, decided on 16th February 1953.
Bengal Tenancy Act (VIII of 1885)-------
----S. 26‑F (4)‑Purchase by co‑sharer, whose interest is acquired by purchase is subject to right. of pre‑emption.
The right of pre‑emption under section 26F is available to a co‑sharer by purchase. Subsection (4) of section 26F makes the right of pre‑emption available to a co‑sharer by purchase ; but it does not enact that the right of pre‑emption cannot be enforced against a co‑sharer by purchase. Exception (1) (a) to section 26F does not extend the protection to a co‑sharer whose existing interest has accrued by purchase. A purchase made by a co‑sharer, whose existing interest was acquired by purchase; is subject to' the right of pre‑emption. The co‑sharer can join in the application for a proportionate share within the prescribed time under subsection (4) (a). If he fails to do so, there is no other remedy.
Hirendra Lal Sarkar v. Sm. Kanakalata Choudhurani and others 46 C W N 849 and Sonamaddi and others v. Pramada Sudari Sarkar and others 41 C W N 1251 ref.
B. C. Das for Petitioner.
F. Karim for Opposite‑Party.
ORDER
IBRAHIM, J.‑These four Rules arise out of four applica tions for pre‑emption under section 26F of the Bengal Tenancy Act.
Opposite parties Akher Ali and Debitannessa, who were the petitioners in the application for pre‑emption out of which case No. 477 of 1952 arises, are the son and daughter, respec tively, of Munshi Mondal. Munshi Mondal and his brother Baduli kot‑mortgaged the land to the petitioner on the 22nd of December, 1931. On the 19th of April, 1939, the heirs of Munshi and Baduli, who died in the meantime, sold them to the petitioner. Two of. the executants, namely, Debitannessa and Harmuz, son of Baduli, were minors. The kabala was executed on their behalf by their mothers. After attaining majority, Harmuz and Debitannessa sued the transferee for recovery of their shares on the ground that the sale was void, so far as their shares were concerned. The suit was dismissed for default. Harmuz then sold his share to the opposite party (previous transferee) on the 6th of January, 1951.. The applications for pre‑emption relate to this sale. Rules 476, 478 and 479 arise out of the applications filed by Akher Ali alone, and Rule 477 comes out of the application filed by Akher Ali and Debitannessa.
It is admitted now that Akher Ali has no locus standi to maintain the application out of which Rule 477 arises. This is because of the fact that the sale, to which the applica tion relates, was the sale of the entire holding, and, as such, Akher Ali had no interest in the holding after the sale. But it is not disputed that Debitannessa is entitled to maintain the application, as her right was not affected by the previous sale.
Rule 477 is, therefore, discharged.
As regards the other Rules, the learned Subordinate Judge held that only a part of the holing had been sold by the kabalas of the 19th of April, 1939, with the result that Akher Ali continued to be a co‑sharer, and, as such, his application could not be thrown out on the ground that he was not a co‑sharer. But it is contended that the opposite parties also became co‑sharers in the holding by their previous purchase on the 19th of April, 1939, and that the applications are not maintainable against them. It is argued that an application for pre‑emption under section 26F of the Bengal Tenancy Act does not lie against a co‑sharer, even though the co‑sharer has acquired his existing interest by purchase. In support of this reference has been made to Hirendra Lai Sarkar v. Sm. Kanakalata Choudurani and others (46 C W N 849). This case does not support the proposition ; what has been held there is that the right of pre‑emption under section 26F is available to a co‑sharer by purchase. That is not the same thing as to say that the right of pre‑emption is not available against a co- sharer by purchase. Subsection (4) of this section makes the right of pre‑emption available to a co‑sharer by purchase but it does not enact that the right of pre‑emption cannot be enforced against a co‑sharer by purchase. Exception (1) (a) to section 26F does not extend the protection to a co‑sharer whose existing interest has accrued by purchase. A purchase made by a co‑sharer, whose existing interest was acquired by purchase, is subject to the right of pre‑emption. The law, however, gives him an opportunity under sub section (4) (a) to join in the application for a proportionate share within the prescribed time. But if he does not do so, he has no other remedy, In Sonamaddi and others v. Pramad Sundari Sarkar and others (41 C W N 1251) it was held:
"When a co‑sharer landlord of an occupancy holding purchases the holding another co‑sharer landlord is entitled to exercise his right of pre‑emption in respect of the whole holding unless the purchaser co‑sharer joins in the applica tion for pre‑emption under subsection (4) (a) of section 26F of the Bengal Tenancy Act."
The right of pre‑emption is now available to the tenants and not to the landlords. But the principle that governs the application of the present section 26F is the same.
These Rules also are accordingly discharged.
I make no order as to costs in any of these four Rules.
K. M. A. Rules discharged.