Mitter, Ag. C.J.
1. One Golap Khan was the owner of an occupancy holding. Before such holdings were made transferable by law, that is, before the amendment of the Bengal Tenancy Act in 1928, he sold the said holding to one Korman Munshi. There was no custom which made occupancy holdings transferable in that locality. Korman was not recognised as a tenant by the landlord but continued to be in possession of the land paying rent on Marfatdari receipts. He died leaving his two sons, Ismail, the opposite party before me, and Aftabuddin, as his heirs. They possessed his properties including the holding in suit in equal shares. The holding in suit was not partitioned between them. In March 1944 Aftabuddin sold his undivided eight annas in the said holding to petitioner 1, Amir Sardar, for Rs. 200. The opposite party came to know of the said sale in Augrahan-1351 (November, December 1944) and shortly thereafter filed on 3rd January 1945 an application for preemption under Section 26P, Ben. Ten. Act, as amended in 1928. He duly deposited Rs. 220 only in Court. To that application as originally filed, the purchaser, Amir Sardar only was made a party. Amir Sardar, however, had executed a sale deed on 14th December 1944 in favour of Mohar Ali Molla (petitioner 2 before me) in respect of the undivided eight annas share of the holding which he had purchased from Aftabuddin. The kobala mentioned Rs. 300 as the consideration. Mohar Ali Molla was later on added as opposite party 2 to the application for pre-emption; the case of opposite party 1 being that the kobala executed by Amir Sardar in his favour was a fictitious one and so he was a benamdar of Amir Sardar.
2. The learned Munsif held that the application made under Section 26F, Ben. Ten. Act, was not barred by time. The learned District Judge on appeal affirmed that finding and that point has not been further pursued before me. The learned Munsif, however, held that the opposite party before me, Ismail, had no locus standi to make the application, because neither he nor his father had been recognised as tenant by the landlord, and that, in any event, the deposit made by him was a short deposit as he ought to have deposited Rs. 330, that is to say, the amount of the price mentioned in the kobala which Amir Sardar had executed in favour of Mohar Ali Molla on 14th December 1944 plus 10 per cent. He did not decide the question as to whether that kobala represented a genuine or a fictitious transaction. The learned District Judge on appeal reversed that decision and has made an order for preemption against both. Amir Sardar and Mohar Ali Molla are the petitioners in this rule. They raise two points before me. They are (i) that the opposite party Ismail has no locus standi to apply under Section 26F as he is not a 'cosharer tenant' and (ii) that in any case, petitioner 2 Mohar Ali Molla ought to be dismissed from these proceedings and that whatever rights the opposite party would obtain by reason of an order for pre-emption in his favour against petitioner 1 has to be tried out in a suit or other proceeding between the opposite party and petitioner 2 and not in these proceedings. In support of the first point reliance has been placed by the petitioners on the decisions in Abdul Majid v. Altab Ali : AIR1940Cal548 and Altab Ali v. Abdul Majid : AIR1941Cal716 and in support of the second point reliance has been placed on two unreported judgments delivered in Kesaraddi Dafadar v. Alekaddi Civil Revn. No. 1854 of 1944 and Biswari Sana v. Basinath Saha Civil Revn. No. 2247 of 1945.
3. In Abdul Majid v. Altab Ali : AIR1940Cal548 Edgley J., sitting singly held that a person who had purchased a share of an occupancy holding before the amendment of the Bengal Tenancy Act of 1928 had come into force and who had not been recognised by the landlord, was not a 'cosharer tenant' within the meaning of Section 26P, and so could not apply for pre-emption. He remanded the case in order that the lower Court may come to a finding as to whether applicant for pre-emption had been recognised by the landlord or not. After remand the lower Court came to the finding that he had been recognised by only one of several Cosharer landlords and on that finding dismissed the application for preemption. It was against this order that this Court was moved and the decision in that rule is the one reported in Altab Ali v. Abdul Majid : AIR1941Cal716 . This decision had to proceed on the basis of the inter partes judgment reported in Abdul Majid v. Altab Ali : AIR1940Cal548 , and the only point that was open for consideration and considered was whether recognition of such a person by only one of several cosharer landlords was sufficient for the purpose of enabling him to apply under Section 26F. The only decision therefore which has a bearing on this point is the decision reported in Abdul Majid v. Altab Ali : AIR1940Cal548 . That decision is not binding on me and I am not prepared as at present advised to agree with it.
4. A sale of an occupancy holding or any portion thereof made before the Amending Act of 1928 passed title in the holding to the purchaser notwithstanding the fact that there was no custom of transferability and the landlord had not recognised the transferee Such a purchaser, in my judgment, would come within the definition of a tenant as given in Section 3, Clause (17), for factually he holds the land under another person-he has not the fee simple, and he is liable to pay rent. The fact that the landord may refuse to recognise him and to accept rent from him, does not take the case out of the words of the definition. Even if such a purchaser does not come within the words of that definition the scope and purpose of Section 26F would have to be considered, for the definition of 'tenant' as given in Section 3, Clause (17) is subject to context. In my opinion, the intention of the legislature in enacting Section 26P was to give the right of preemption to a cosharer in the occupancy holding. This intention is indicated by Clause (a) of Sub-section (1) of Section 26P itself. In my view the phrase 'Cosharer tenant' occurring in Section 26P means a 'cosharer in the tenancy.' The word 'tenant' has been used in contradistinction to the word 'landlord' to whom the right of pre-emption had been given by the old Section 26F and which the (present section has supplanted. These are some of the reasons which induce me to dissent from the decision in Abdul Majid v. Altab Ali : AIR1940Cal548 . In the case before me, there is also the distinguishing feature, namely that where both the applicant for preemptions and the vendor of Amir Bardar stand on the same level, for they, as the sons of the unrecognised purchaser of the occupancy holding, namely of Korman Munshi, came to own the holding. I accordingly overrule the first point.
5. The two unreported judgments which I have noticed above lay down two propositions namely that the subsequent purchaser is not a proper or necessary party to an application for preemption made by a cosharer tenant under Section 26F, and the righte of the person applying for pre-emption as agaiust him cannot be determined in the pre-emption proceedings. I respectfully dissent from both the propositions. In my judgment, he is not only a proper but is a necessary party, and the order for pre-emption made against the original purchaser would bind and be effective against him. The right of pre-emption given to a cosharer tenant arises as soon his other cosharer sells to a stranger purchaser, that is to say, to person other than a cosharer in the tenancy whose existing interest had accrued otherwise than by purchase; and the effect of the order for pre-emption is to vest in the pre-emptor from the date of that order 'the right, title and interest in the portion or the share of the holding accruing to the transfer from the transfer...free from all encumbrances created after the transfer.' A sale by the purchaser from the cosharer tenant to another is no doubt not an encumbrance, but, in my opinion, the latter takes the property with the infirmity attaching to the title of his vendor's title and from the date of the making of the order for pre-emption his title also would be destroyed. Any other view would put it in the power of a transferee from a cosharer tenant to defeat the right which the statute gives to the other cosharer tenant to pre-empt him on the terms laid down in Section 26F. The subsequent purchaser is therefore vitally interested in the proceedings for pre-emption and so is not only a proper but is a necessary party. I do not see either the expediency or propriety of driving the parties, namely the applicant for preemption in whose favour the order had been made and the subsequent purchaser to another proceeding. For these reasons, I prefer to follow the decisions given in Girja Nath v. Ahmed Ali : AIR1947Cal126 and Lokeman Ali v. Abdul Motaleb : AIR1947Cal327 . The result is that this rule is discharged but in the circumstances of the case without costs.