Skip to content


Reazaddi Bepari and anr. Vs. Yakub Bepari and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1941Cal416
AppellantReazaddi Bepari and anr.
RespondentYakub Bepari and ors.
Excerpt:
- .....disputed holding. the jote in question was sold to defendant 2. there was an application for pre-emption by defendants 3 to 10 which was allowed. the holding was then settled with the plaintiffs the share of defendant 10 being 7 pice. defendant 10 subsequently put forward a case that his real share was 8 annas and settled the balance with defendants 1 and 2. this claim of defendant 10 was put forward on the curious ground that, inasmuch as the jote was held jointly under two touzis and defendant 10 was the only one of the proprietors of one touzi applying for pre-emption his share must be 8 annas. that case has now been abandoned; but the claim to enhance the share of defendant 10 is put forward in a modified form. the shares of the applicants for pre-emption were as follows:.....
Judgment:

Henderson, J.

1. This appeal is by defendants 1 and 2. The question raised is the share of defendant 10 in the landlord's interest of the disputed holding. The jote in question was sold to defendant 2. There was an application for pre-emption by defendants 3 to 10 which was allowed. The holding was then settled with the plaintiffs the share of defendant 10 being 7 pice. Defendant 10 subsequently put forward a case that his real share was 8 annas and settled the balance with defendants 1 and 2. This claim of defendant 10 was put forward on the curious ground that, inasmuch as the jote was held jointly under two touzis and defendant 10 was the only one of the proprietors of one touzi applying for pre-emption his share must be 8 annas. That case has now been abandoned; but the claim to enhance the share of defendant 10 is put forward in a modified form. The shares of the applicants for pre-emption were as follows: Defendants 3 to 5-2 annas 13 gandas 1 krant; defendants 6 to 9 - 5/6/2/2; and defendant 10 - 1/15. It is now contended that the shares should be increased proportionately until a total of -16- is reached and that the appellants are entitled to possession of the difference between this share and 7 pice. I agree with the Courts below that the claim is entirely misconceived. It implies that the interest of the pre-emptor depends upon his original share in the landlord's interest. Against this contention Mr. Sen Gupta relied upon Section 45, T. P. Act. Against that contention it was argued that this section has no application, because the transfer was an involuntary transfer. I can find nothing in the section itself to suggest that it ought to be limited in this way, nor would there be any sense in any such provision. If it is to be so limited the section has no application to execution sales.

2. On the other hand, if the section does not apply by its terms, there are indications in Section 26 (f), Ben. Ten. Act, which indicate that the same principle applies. If there is only one applicant from among the joint landlords, he obtains the whole interest. This right depends not on his share in the landlord's interest but on the fact that he provided the whole of the consideration. Again, under, Sub-section (i) a cosharer may apply to join in an application; but he must de-posit the amount which the Court fixes as his share of the consideration and expenses. The share which might be claimed by the other cosharers who have not joined in the application would pass to the original applicant. Hence, it is clear that the shares after pre-emption will depend not on the original shares but on the amount of consideration money respectively contributed. In the present case, there is a finding that the contract between defendants 3 to 10 was that the share of defendant 10 would be 7 pice. There is a further finding that the amount actually contributed by him was slightly less than the proportionate share would be. In view of these findings, it is quite impossible to say that the share of defendant 10 can be more than 7 pice. The appeal is accordingly dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //