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(Minor) Khoka Bairagi and ors. Vs. Bhabani Dasi W/O Nagendra Nath Mandal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1945Cal380
Appellant(Minor) Khoka Bairagi and ors.
RespondentBhabani Dasi W/O Nagendra Nath Mandal and anr.
Cases ReferredBehary Lal v. Pulin Behary
Excerpt:
- .....was not made a party until 17th june 1943 by which time the period of limitation had expired. the learned subordinate judge held that this was immaterial as the application itself was filed within the time allowed. the reason he gave was that the only object of serving a notice on the transferee is to enable him to show what sums had been expended by him subsequent to his purchase. if that argument were well-founded it might be possible to' support the view taken by the learned subordinate judge. it is, however, fallacious. it is certainly open to the transferee to contest the application on the allegation, for example, that the applicant is not a cosharer. in holding that the provisions of section 29(2), limitation act, do not apply the learned subordinate judge has overlooked the.....
Judgment:
ORDER

Henderson, J.

1. This rule is directed against an order allowing pre-emption on an application made by opposite party NO. 1 which was rejected by the Munsif on the ground of limitation. The original transferee died before the application was made. Petitioner 3 is one of her heirs but she was not made a party until 17th June 1943 by which time the period of limitation had expired. The learned Subordinate Judge held that this was immaterial as the application itself was filed within the time allowed. The reason he gave was that the only object of serving a notice on the transferee is to enable him to show what sums had been expended by him subsequent to his purchase. If that argument were well-founded it might be possible to' support the view taken by the learned Subordinate Judge. It is, however, fallacious. It is certainly open to the transferee to contest the application on the allegation, for example, that the applicant is not a cosharer. In holding that the provisions of Section 29(2), Limitation Act, do not apply the learned Subordinate Judge has overlooked the provisions of Section 185, Ben. Ten. Act.

2. Dr. Pal contended that, even if the claim for pre-emption is barred against petitioner 3, it should be allowed against the other petitioners to the extent of their shares. This argument raises the question whether partial pre-emption can be allowed. The section must be construed, strictly against the pre-emptor and if there is any doubt, the benefit of it must go to the transferee. There is no specific provision for partial pre-emption; indeed the words used are 'the said portion or share.' Furthermore, there is no provision for apportionment of the consideration money. I have no doubt that the intention of the Legislature was that such partial pre-emption should not be allowed. This was the view taken of the old section, vide Behary Lal v. Pulin Behary ('34) 21 A. I. R. 1934 Cal. 691, and I can find nothing to suggest that a new policy has been adopted in the amended section. The result is that the rule must be made absolute, the order of the lower appellate Court set aside and that of the Munsif restored. I make no order as to costs.


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