R.C. Mitter, J.
1. This rule has been directed against an order for pre-emption made by the Munsiff, First Court, Basirhat under the provisions Section 26-F, Ben. Ten. Act. The facts are not in controversy at all.
2. There is putni taluk in which the petitioner before me had two anna share, opposite party No. 1 four anna share, and opposite parties Nos. 2 to 22 the remaining ten anna share. Under this taluk is the occupancy holding which is the subject-matter of the application for pre-emption. In June 1929 the putni was sold for arrears of rent and was purchased at the rent sale by the petitioner. Ostensibly by the rent sale he became the six-teen anna owner of the putni. Then on 12th January 1933 the petitioner himself purchased the occupancy holding. Opposite party No. 1 who is a lady instituted a title Suit No. 653 of 1933 for a declaration of her title to four anna share in the putni and for reconveyance of her share. It seems that her case was that the putni sale was brought about by the fraud of the petitioner. That suit terminated in a decree made by the trial Court on 16th April 1934. The terms of the decree are as follows:
That this suit be decreed in part with proportionate costs in favour of the plaintiff and against defendant 1 on contest and ex parte against others. Let it be declared that the plaintiff had four anna share in the putni and that the auction-purchase of the same by defendant 1 would enure to the benefit of all the co-sharers of the putni at the time of the sale. It is further ordered that on plaintiff's paying into the Court the sum of Rs. 101-4-0 with interest at six per cent, per annum from the date of the sale within two months from this date, defendant 1 shall convey the four anna share of the putni to the plaintiff by a registered kobala and that the plaintiff shall also pay the costs of the reconveyance.
3. This decree has not been set aside yet, but I am told that it is now the subject-matter of a second appeal which is pending in this Court. The plaintiff in that suit who is opposite party No. 1 deposited the sum of Rs. 101-4-0 and all other sums that she was required to deposit in Court in terms of the said decree, but the reconveyance has not yet been executed by the petitioner. On 8th May 1934 opposite party No. 1 made an application for preemption. Neither the petitioner nor opposite parties Nos. 2 to 22 joined in her. application for pre-emption. Opposite parties Nos. 2 to 22 never eared in having a share in the holding by the exercise of the right of pre-emption: and the petitioner took up the attitude that he was the sole landlord in respect of the occupancy holding. He did not put his claim in the alternative form, namely, that if he is not adjudged as the sole landlord he should be allowed to pre-empt as a co-applicant. The lower Court granted a decree for pre-emption in favour of opposite party No. 1 to the extent of sixteen annas.
4. Mr. Mitter for the petitioner has raised two points. He says that till the reconveyance mentioned in the decree of the title suit is executed opposite party No. 1 has no interest in the putni and she is not a co-sharer landlord. I cannot accept that proposition. The effect of the decree is that the beneficial interest in four anna share of the putni, is in opposite party No. 1 and has all along been in her. She has done what she was required to do under the decree, and I do not think that petitioner can merit by his default, i. e., by not executing the reconveyance. The petitioner cannot take advantage of his own default and resist the application for pre-emption.
5. The second point taken by Mr. Mitter is that the order for pre-emption should have been in favour of his client also, because he was the owner of the putni to the extent of two anna. I cannot give effect to this contention having regard to the clear provisions of Section 26-F, Sub-section (4)(a), viz., even when a co-sharer landlord is the transferee, he is to join as co-applicant in the application for pre-emption made by other co-sharer landlords and if he does not so join he shall not have any further power of purchase under Section 26-F. I accordingly overrule both the points urged before me and discharge the rule with costs; hearing fee one gold mohur.