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Petitioner: ABDUL KADER PRODHANIA ALIAS BEPARI VS Respondent: MUHAMMAD SERAJ KHAN
P L D 1965 Dacca 538
P L D 1965 Dacca 538
Before Sikandar Ali, J
ABDUL KADER PRODHANIA alias BEPARI‑Petitioner
Versus
MUHAMMAD SERAJ KHAN AND OTHERS‑Respondents
Civil Rule No. 1399 of 1961, decided on 14th May 1964.
Bengal Tenancy Act (VIII of 1885),
Ss. 26‑F & 26‑C--- Unnotified co‑sharer tenant entitled to make application for pre-emption within 3 years from date of kabala‑Similarly application tender subsection (4) of S. 26‑F by remaining co‑sharer within 3 years from date of kabala‑Not barred by limitation --Retirement of original applicant under subsection (1) of S. 26‑F from case either by withdrawal or by default‑Does not defeat right of other co‑sharer joined as co‑applicant under subsection‑ (4) of S. 26‑F‑Co‑applicant, in such case, instead of getting pre -emption proportionate to his share, can get entire subject‑matter including share of retiring original applicant‑Court under obligation, in such contingency, to call upon co‑applicant to make further deposit to cover entire requisite amount payable under S. 26‑F (1)‑Such further deposit should be made to credit of original applicant and not to credit of transferee‑‑Defect, however, mere irregularity not affecting co‑applicant's right of pre‑emption or rendering his application untenable‑Court accepting deposit a day later than period fixed for purpose‑Period for deposit, treated as extended by implication.
Civil Revision Case No. 32 of 1963 (unreported); A. C. Ghose's Bengal Tenancy Act, 1943 Ed., p. 300; Civil Revision No. 410 of 1962. (unreported); Sidheswari trosad Roy Chowdhry v. Gendu Mia 61 C L J 27; Jatindra Kumar Chakraborty v. Chandra Kumar and others 38 C W N 616; Jotis Chandra Biswas and another v. Jadu Nath Sikdar and others A I R 1937 Cal. 377; Pudmanad Singh and others v. Anant Lai Misser and others 4 C L J 421 and Raghunandan Sahay and others v. Ram Sundar Prasad A I R 1935 Pat. 299 ref:
A. M. Fazlul Wahab for Petitioner.
Nurul Haq Bhulyan for the Opposite‑Parties
JUDGMENT
This Rule arises out of a proceeding under section 26‑F of the Bengal Tenancy Act. It appears that opposite‑party No. 3 Nibaran Chandra Dey initiated the said proceeding by an application filed on the 29th of September 1959, under section 26‑F of the said Act seeking to pre-empt the subject‑matter of a transfer evidenced by a kabala which was executed on 6‑12‑56 and registered on 7‑12‑56. The subject‑matter of the said transfer is an area of 24 acres comprised in C. S. Plot Nos. 1021 and 1022 appertaining to an occupancy holding as recorded in C. S. Khatian No. 793 of Mouza Upadi under Police Station Matlab within the District of Commilla and the consideration of the transfer appears to be a sum of Rs. 300. No notice under section 26‑C of the Bengal Tenancy Act was served upon the co‑sharers tenants. Thereafter on the 22nd of February 1960, the original petitioner in the present revisional proceeding, namely, Abdul Kader Pradhania alias Bepari, who is since dead and has been substituted by his legal representatives, filed an application on the 2nd of December 1959, under subsection (4) of section 26‑F of the Bengal Tenancy Act (hereinafter referred to as the Act) for proportionate pre‑emption with respect to an area of `19 acres out of the said' 24 acres. Along with that application he also filed Chalan in triplicate for deposit of the proportionate sum of Rs. 220 due on account of the consideration money and statutory compensation with regard to the share claimed by him whereon the Court below directed deposit of the said amount by 4‑12‑59. The Chalan was thereafter passed by the Court's Sheristadar on 4‑12‑59 and was then submitted as required under the Rules to the Accountant, from whom the same was received back on the following day, .that is, 5‑12‑59. The said petitioner thereon made the deposit on that very date whereupon the learned Munsiff accepted the same and added him as a co‑applicant on 19‑12‑59. In the meantime, that is, on 17‑12‑59, the original applicant that is the opposite‑party No. 3 Nibaran here, filed an application seeking permission of the Court to withdraw from the case and praying for refund of the amount deposited by him. On 16‑1‑60, the learned Munsiff allowed this prayer and dismissed the case for non‑prosecution so far as the said applicant was concerned. The opposite‑parties Nos. 1 and 2 who are the transferees in respect of the disputed subject‑matter thereafter filed an objection and contested the claim of the present petitioner, that is, co‑applicant in the Court below. It appears that the co‑applicant then filed an application seeking permission of the Court to deposit a further sum of Rs. 110 and prayed for pre‑emption with respect to the entire subject‑matter of the transfer in question. Ultimately, on 22‑2‑60, the learned Munsiff overruled the objections raised by the transferees and allowed pre‑emption in favour of the co‑applicant with respect to the entire subject‑matter subject to his depositing the requisite balance of Rs. 110 by 12‑3‑60 which was duly done within time. The transferees, that is, the opposite‑parties Nos. 1 and 2, then preferred an appeal against this decision of the trial Court and the lower appellate Court in due course allowed the appeal and sent the case back for rehearing. The case was accordingly reheard and the learned Munsiff by his order, dated 12‑11‑60, dismissed the original application filed under subsection (1) of section 26‑F of the Act by the, opposite‑party No. 3 Nibaran for non‑prosecution but allowed the claim of the co‑applicant, that is, the original petitioner here, with respect to the entire land involved. This was again taken in appeal which was eventually allowed and the claim of the co‑applicant for pre‑emption dismissed. It is thereafter that the co‑applicant approached this Court under section 115 of the Code of Civil Procedure and obtained the present rule.
It appears that before the learned Subordinate Judge who heard the appeal, the claim of the Co‑applicant was resisted on several grounds‑one of which is that his application was out of time inasmuch as it was not filed within the period specified in section 26, subsection (4) (b) of the Act laying down that any of the co‑sharer tenants other than the applicant under sub section (1) but including the transferee if one of them, may within the period referred to in subsection (1) or within one month from the date of the application whichever is later apply to join in the said application. The learned Subordinate Judge rejected this contention on the ground that on notice under section 26‑C of the Act had been served upon the co‑sharer tenants and accordingly the application under subsection (4) in the present instance, though not within one month of the date of the application filed under subsection (1), was within three years from the date of the kabala, which is also a permissible time‑limit for a co‑sharer tenant without notice under section 26‑C of the Act to apply under section 26, subsection (4) of the Act. It is well‑settled that an unnotified co‑sharer tenant is entitled to make an application for pre‑emption under subsection (1) within a period of three years from the date of the kabala, from which it appears clearly to follow that an application under subsection (4) by such a co‑sharer, though beyond four months from the date of the original application under subsection (1) of the Act, must be held to be within time provided it is within three years from the date of the kabala in question. That is exactly the view taken by a Division Bench of this Court as well in Civil Revision Case No. 32 of 1963 (unreported) decided on 27th of November 1963. It would thus appear that the learned Subordinate Judge has decided the point correctly.
The next point taken before the appellate Court is that a co‑applicant cannot maintain his application under section 26‑F subsection (4) of the Act after the withdrawal or abandonment by the applicant of his original application under section 26‑F subsection (1) of the Act nor is there any sanction in law for the Court concerned to allow the co‑applicant to deposit the balance over and above the amount already deposited by him to make up the entire amount of consideration money and statutory compensation payable to the transferees, after allowing the co‑applicant to withdraw the case and get refund of the amount deposited by him. The learned Subordinate Judge has negatived; this contention as well and held and in my opinion, rightly that an application filed under subsection (1) gives a right to the other co‑sharers tenants to join as co‑applicants and once they file an application to join as such and make the deposit, as directed by the Court, they shall be deemed to be co‑applicants under subsection (1) and that this right cannot be defeated by subsequent withdrawal of the original application. He has further held that the Court is perfectly competent to allow a co‑applicant to make a further deposit necessary to cover the requisite amount payable under subsection (1) of section 2,6‑F a of the Act in a case where the original applicant for any reason ceases to pursue his application. In other words, although the right to make an application under subsection (4) is dependent on an application under subsection (1) a co‑sharer in whose favour that right has once accrued and who has actually exercised that right, no longer remains at the mercy of the applicant so as to continue or quit according as the latter chooses to continue or quit. He may co‑exist with the applicant, if the applicant pursues his application, just as he may stand on his own if the latter for any reason likes to retire. The soundness of this view taken by the learned Subordinate Judge has not been challenge before me. It is, therefore, not necessary for me to enter into a detailed discussion. Nevertheless, I would like just to observe that the retirement of the original applicant from the case either by withdrawal or by default, far from making the position op the co‑applicant precarious or untenable, appears rather to raise, his entitlement in the sense that instead of getting pre‑emption proportionate to his share, he can, if he so wishes, get the entire subject‑matter, which, as the applicant continued, would have been available to them both together. In this connection I may also quote from A. C. Ghose's Bengal Tenancy Act, 1943 Ed, p. 300 the following:‑
"It would seem that the right of the co‑sharers to join a co‑applicants will not be defeated by the withdrawal or dismissal for default of the original application in the meantime; in such a case the intending co‑applicants will be given the carriage off the original proceedings."
As partial pre‑emption is not contemplated by section 26‑F of the Act, an applicant or‑co‑applicant or both together must take either the entire subject‑matter of the relevant instrument of transfer, comprised within the occupancy holding or holding; in which they are interested, or nothing at all. So in a case where the applicant happens to retire, the necessity of further deposit by the co‑applicant, who has earlier deposited only i part of the amount payable under subsection (1) is obvious. It would, therefore, become an obligation rather than a mere option on the part of the Court concerned in that contingent' to call upon the co‑applicant to make further deposit necessary in view of the amount of the consideration for the dispute transaction and the statutory compensation payable thereof, One point worthy of note in this connection, however, is that such deposit just as the original deposit by a co‑applicant has to be made, as the express language of subsection 4 (b) shows, to the credit of the applicant. The scheme of the section, therefore, appears to be that in the event of the claim of pre‑emption being allowed, the amount deposited by the original applicant while making his application under subsection (1) will go to the transferee or transferees and he shall be reimbursed either in full of in part, as the case may be, out of the deposits made by the co‑applicant or co‑applicants. In this view of‑the matter, therefore, neither the order of the Court concerned allowing the original applicant, that is, opposite‑party No. 3 Nibaran here, to get refund of the amount deposited by him, nor the act of deposit made by the co‑applicant to the credit of the transferees, instead of making the same to the credit of the applicants, can be said to be in strict conformity with the requirements of the relevant provisions. These are, however, defects of a technical nature, which, in my opinion, cannot affect the claim for pre‑emption made by the co‑applicant nor render his application untenable. Civil Revision No. 410 of 1962, (unreported) decided by me sitting singly on the 27th of E February 1964, also related to a case, in which the deposit had similarly been made to the credit of the transferee and not to the credit of the applicant, as required under the law. Therein having referred to the said defect, I observed and held as follows:‑
"Nevertheless the appellants made the deposit, which was adequate, within the time and the requisite amount in full was thus available to the Court for payment to the applicant and it was also competent to direct such payment in spite of the fact that the amount stood to the credit of the opposite‑party No. 1. In this view of the matter the defect, referred to above, may at most be said to be an irregularity but not, in my opinion, such as may invalidate the deposit and thereby render the application of the opposite‑parties Nos. 2‑4 incompetent."
I am not persuaded to take a different view on the present occasion as well.
Although the lower appellate Court, thus found the above points in favour of the petitioner, that is, the co‑applicant, it, however, held against him on the other point canvassed by the parties, namely, the validity of the deposit made after the expiry of the period fixed by the Court, and accordingly dismissed his claim.
As has already been stated above, the relevant instrument of transfer was registered on 7‑12‑56. No notice under section 26‑C of the Act was admittedly served upon any of the co‑sharers tenants. The original application under subsection (1) of section 26‑F of the Act was filed on 29‑9‑59. The co‑applicant thereafter preferred his application under subsection (4) on 2‑12‑59, that is, beyond one month from the date of the original application but within three years from the date of the kabala. Along with that, he also made a prayer for deposit of the requisite amount and Chalan in triplicate was also filed on the same date. The learned Munsiff thereon directed him to make the deposit by 4‑12‑59. The Chalan, as already mentioned‑above, was passed by the Sheristadar on 4‑12‑59 and was thereafter received back from the Accountant on the following day, that is, 5‑12‑59, and the co‑applicant appears to have made his deposit on that very day. In these circumstances, the learned Subordinate Judge has taken the view that as the Court fixed the time for deposit till 4‑12‑59, but the deposit could not be made, for whatever reason that might be, within that date, and as the petitioner concerned did not move the Court for an extension of the period, already fixed by it, or the Court on its owner also did not extend the same, the deposit made on 5‑12‑59, that is, after the expiry of the period specifically fixed by the Court, cannot be said to be valid and in that view of the matter, he has dismissed the petitioner's claim.
Mr. Fazlul Wahab on behalf of the petitioner, that is, the co‑applicant in the Court of the first instance, has attacked this on the contention that as 5‑12‑59 was also within three years from the date of the kabala, within which his client was legally entitled to come under subsection (4) and as further the Court accepted the deposit made by his client and added him on that basis as a co‑applicant, the period fixed by the Court ought to have been treated as extended and the deposit held to be valid. In other words, he wants to say that in the circumstances disclosed it must be taken as a case of implied extension. In support of this proposition he has referred to certain authorities wherein this principle of implied extension has been given effect to.
Mr. Nurul Haq Bhuiyan, on the other hand, contends that those authorities related to the old law, which was different, and are as such wholly irrelevant to this. Mr. Fazlul Wahab's short reply is that in spite of the difference of an inconsequential nature that the old law conferred the right of pre‑emption upon the landlords including the co‑sharers landlords, the present provisions vest the same in the co‑sharers tenants, the two provisions are substantially identical and as such there can be no reason why the principle enunciated in those authorities should not be applicable to the instant case as well. To me this contention appears to have much force. It will be worthwhile to quote here the relevant provisions of the old law, which, as embodied in section 26‑F subsections (1) and (2) of the Act, ran:
"(1) Except in the case of a transfer‑
(a) to a co‑sharer in the tenancy whose existing interest has accrued otherwise than by purchase,
(b) in execution of a decree or a certificate signed under the Bengal Public Demands Recovery Act, 1913, for arrears or rent due in respect of the holding or dues recoverable as such,
(c) by exchange, or
(d) referred to in the second proviso to section 26‑D, the immediate landlord of the holding or the transferred portion or share may, within two months of the service of notice issued under section 26‑C or 26‑E, apply to the Court that the holding or portion or share thereof shall be transferred to himself."
"(2) 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."
As already indicated these have since been repealed and the new provisions, made in their place, in so far as these are relevant to my present purpose, are as follows:‑
"26‑F. Subsection' (4) ‑ (a). When an application has been made under subsection (1), any of the remaining co‑sharer tenants, including the transferee, if one of them, may within the period referred to in that subsection or within one month of the date of the application, whichever is later, apply to join in the said application; any co‑sharer tenant, who has not applied under either subsection (1) or this subsection shall not have any further power of purchase under this section."
"26‑F. Subsection (4) (b). Such application to join as a co‑applicant shall be dismissed unless within such period as the Court may fix, not extending beyond the period referred to in clause (a), the applicant deposits in Court for payment to the applicant or applicants under subsection (1), such sum as the Court shall determine as the share to be paid by him for the purposes of subsection (2). If such deposit is made, the Court shall grant the application to join, and thereafter such applicant shall be deemed to be an applicant under subsection (1)."
I shall now proceed to refer to the authorities relied on by the learned Advocate for the petitioner. The first of these is the case of Sidheswari Prosad Roy Choudhry v. Gendu Mia (61 C L J 27). That related to a case in which the landlord applicant made his application within two months of the service of the notice on him under section 26‑C of the Act. He did not, however, deposit with the application which he made on the 14th of February 1930, the amount of the consideration money as he was required to do by the notice which was served on him together with compensation at the rate of 20 % of such amount under the provisions of section 26‑F clause (2) of the Act. In these circumstances, the application, though made on the 14th was treated as one made on the 15th, that is, the date on which the deposit was made, and, it was held inter alia:‑
"Section 26‑F of the Bengal Tenancy Act should be construed liberally, the intention of the Legislature is that the deposit should be made within two months of the date of notice in order to make the application within the purview of section 26 clause (2) of the Bengal Tenancy Act.
An application for pre‑emption made under section 26‑F of the Bengal Tenancy Act should not be dismissed on ground that the deposit contemplated by section 26‑F, clause (2) of the Act is made on the day following the day of application if both the application and the deposit were made within time, i.e., within two months of the service of notice under section 26‑C of the Bengal Tenancy Act."
The next decision on which reliance has been placed is the case of Jalindra Kumar Chakraborty v. Chandra Kumar and others (38 C W N 616). In this case the landlord filed an application under section 26‑F of the Act on a certain day and also filed along with it Chalans for the deposit of money required; but the Chalans were passed and the deposit of money was made on a subsequent day. Herein also the application was held to be in order. In reaching this conclusion it was observed:‑
"The second point was, ‑as I have said before, that the learned Munsif in view of the provisions of section 26‑F, sub section (2) of the Bengal Tenancy Act, ought to have dismissed all the three applications when the money that was required to be deposited had not been actually deposited. It appears, however, that along with their applications the landlords produced challans in implicate and were ready with the money that was required under the provisions of this Act. The landlords in the circumstances did all that they had under the law to do and if they did all that they had to do towards making a deposit, what they actually did on the date when the applications were filed was in my judgment a deposit that was contemplated by the law to have been made by the applicants. It is to be remembered in this connection that these applications were made long before the last date for making them. It is to be remembered also that the learned Munsiff, after registering the applications, permitted the money to be deposited which was nothing more than an office procedure for passing the challans. As I have observed at the outset, there is no real substance in either of the two points which were urged before me on behalf of the petitioners."
Lastly, Mr. Wahab has relied upon the case of Jotis Chandra Biswas and another v. Jadu Nath Sikdar and others (A I R 1937 Cal. 377) wherein, too, the same principle was followed and it was thus observed:‑
". . . where an application for pre‑emption is made on a certain day, and the deposit of necessary amount is made only on the following day, and if the application is brought to the notice of the Court after the deposit, both the application and the deposit being within two months of the service of notice, the application is quite in order."
Having regard to the facts and circumstances of the present case, I see no reason why the principles laid down under the above mentioned authorities should not be applicable to the present case before me as well.
Mr. Nurul Haq Bhuiyan however, contends that the decision in each of the cases cited above was mainly based on the consideration that the applicant in each of them was found to have done all that he could do which according to him cannot be said with regard to the present petitioner. Regard being had to the facts, as has already been set out above. I find myself unable to appreciate this argument. The petitioner made his application within time and along with it also submitted Chalan in triplicate, as required, with a prayer for permission to make the necessary deposit. The Chalans were not even received back by him from the office of the Court concerned till after the expiry of the period fixed by the Court for the deposit in question. It is important to note that the petitioner's application under subsection (4) of section 26‑F of the Act was not rejected immediately on the expiry of the said period, that is, on 5‑12‑59. As a matter of fact, his application was not even put up on that date or to be more accurate before 19‑12‑59, on which date too the learned Munsiff adjourned the same awaiting receipt of the Chalan. Then on 16‑1‑60, he accepted the deposit and added the petitioner as a co‑applicant by his order of date running as follows:‑
"Challan received.‑Money deposited. Petition filed by one Abdul Kadir Pradhania alias Bepari for adding his name as co‑applicant is put up today. Prayer is allowed; amend the main petition and register accordingly. Let the petition be made part of the main petition. Fix 20‑2‑60 for pre‑emptor hearing. Parties to come ready…
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