B.K. Mukherjea, J.
1. This Rule is directed against an appellate judgment of S.K. Sen Esq., District Judge of Tippera, dated 21st July 1942, affirming an Order made by the Subordinate Judge, 2nd Court of that place by which he rejected an application presented by the petitioner undersection 26F, Bengal Tenancy Act. The material facts are not in controversy and may be shortly stated as follows: The lands in question are situated within the Brahmanberia Municipality and are included in two separate tenancies recorded under two separate khatians, one comprising C.S. plot 1335 and the other relating to C.S. dags 1336 and 1337. These lands were held originally by three brothers Kunja Kishore, Rajkishore and Krishnakishore, who had equal shares in them. The share of Rajkishore in both the tenancies passed by transfer to one Kalikishore Pal sometime in the year 1923 and on 28th November 1933, the one-third share of Krishnakishore in all these lands was sold by his heirs to the present petitioner Malatibala. The heirs of Kalikishore who got one-third share by purchase sold that share to Narendra Chandra Bhattacharjee, the opposite party No. 1, by a kobala which was executed on 14th July 1941. Notices of this transfer were given to all the cosharer tenants including the petitioner under section 26C, Bengal Tenancy Act, and within two months from that date the petitioner presented this application for pre-emption of that share under section 26F, Bengal Tenancy Act. The lands appertaining to the two tenancies have been described separately in the two schedules attached to the petition. The claim for preemption was resisted by the purchaser opposite party substantially on the ground that the tenancies in question related to homestead lands and consequently could not attract the provisions of section 26F, Bengal Tenancy Act. The trial Court gave effect to this contention and rejected the application. On appeal the judgment has been affirmed and it is against this appellate judgment that the present Rule has been obtained.
2. Mr. Das who appears in support of the Rule has raised a two-fold contention. He has argued first of all that in an application under section 26F, Bengal Tenancy Act, the Court can only proceed on the basis that the lands sold constituted an occupancy holding and the entire scope of the enquiry under the section is restricted to matters which are specified in Clause 1 and 2. The Court is not competent to investigate as to whether the nature of the tenancy is different from what is stated in the deed of conveyance or the notice that is issued under section 26C, Bengal Tenancy Act, and no such question can be submitted for determination of the Court. The second point taken is that the transferee cannot go back upon the statements made in the notice of transfer as to the nature of the tenancy and he having invited the cosharer tenants to act on the statement cannot turn round and defeat the application for pre-emption by alleging that the tenancy purchased is of a different nature.
3. In support of the first contention Mr. Das relied upon a decision of a Letters Patent Bench of this Court which is to be found reported in Prosanna Kumar Roy v. Adyasakti Dasi : AIR1942Cal586 . This was a case under section 26F, Bengal Tenancy Act, as it stood prior to the recent amendment of 1938. Here a portion of a raiyati holding was sold by a tenant to the plaintiff respondent and the description in the kobala was that it was an occupancy holding. On notice being served upon the appellant landlord under section 260, Bengal Tenancy Act, the latter made an application for pre-emption under section 26F as it then stood. This application was allowed and thereafter the respondent instituted a suit in the Court of the Munsif at Katwa for a declaration that the land purchased by her appertained to a mokarari holding and that the Order of pre-emption made by the Court was void for want of jurisdiction. The first Court dismissed the suit. On appeal to the Court of the District Judge of Burdwan the appeal was allowed and the plaintiff's suit was decreed. This decision was affirmed by Sen J. on second appeal and by Nasim Ali J. and Blank J. on further appeal under Clause 15, Letters Patent. The decision of the Letters Patent Bench was that the Order made in the section 26F proceeding did not operate as res judicata in the subsequent suit as the question relating to the nature of the tenancy, could not be raised or decided in the proceeding under section 26F, Ben. Ten. Act, the foundation of which was the admission of the purchaser in the purchase deed that the property sold was an occupancy holding. Dr. Basak appearing for the opposite party contended that since the above ease was decided the provisions of section 26F, Ben. Ten. Act have been amended by the amending Act of 1938 and Clause 10 of the pre-sent amended section gives a right of appeal from every decision made under that section. This, it is argued, shows that the proceeding is no longer of a summary character and the enquiry is not restricted to the matters specified in Clause 1 and 2 of the section but embraces all questions of title which could be raised and decided in a suit. We do not think that the introduction of Clause 10 which gives a right of appeal is by itself sufficient to show that the intention of the Legislature was to extend the scope of enquiry under section 26F, Ben. Ten. Act. We think however that it is not free from doubt as to whether the powers of the Court in dealing with an application under section 26F, Ben. Ten. Act, are confined exclusively to matters specified in Clauses 1 and 2. The judicial opinion is not quite uniform on this point. Mitter J. was against putting a rigid interpretation upon the section and he differed from the view taken by Henderson J. in several cases: Mohini Mohan v. Radha Sundari : AIR1935Cal481 . It is not necessary for us to express any final opinion on this point for in our opinion the petitioner is entitled to succeed on the second point raised on her behalf.
4. It cannot be disputed that when a pur-chaser purchases a property which is specifically described as an occupancy holding and gives notice to the cosharer tenants under section 260, Ben. Ten. Act, and on the faith of the representation contained in the notice the cosharer tenants apply for pre-emption under section 26P and deposit the money which is required to be deposited under that section, a plea of estoppel may be legitimately taken and unless it is shown that the applicant for pre-emption had previous knowledge as to the real character of the tenancy the purchaser would be precluded from alleging or proving that the tenancy was of a nature different from what it was represented to be. This view is supported by a decision of Mitter J. in Mohini Mohan v. Radha Sundari : AIR1935Cal481 referred to above which follows an earlier decision of a Division Bench of this Court in Surendra Nath v. Notan Behary : AIR1931Cal483 . The learned District Judge who heard the appeal in the present case has not disputed this proposition of law. What he has held, in substance, is, that in this case no estoppel can be pleaded against the purchaser as the petitioner or rather her husband was cognisant of the entries in the settlement records which described both the tenancies as residential tenancies. In our opinion these findings are not sufficient for the purpose of negativing the plea of estoppel. In the first place the knowledge of the husband is really not material; it must be proved and found as a fact that the petitioner herself was aware of the real state of affairs. In the second place the entries in the settlement record would at best raise a presumption. It is not conclusive, and the petitioner's husband states in his deposition that he was indeed aware of the entries in the settlement records but he knew the settlement records to be incorrect. If having regard to the other circumstances and other evidence relating to these tenancies the petitioner's husband did not choose to attach any importance to the entries in the settlement records, we do not think that it can be held definitely that he was aware that the holdings were really (not?) occupancy holdings. The result is that in our opinion it has not been proved that the applicant for pre-emption was aware of the fact that the tenancies sold did not constitute occupancy holding, within the meaning of the Bengal Tenancy Act.
5. The result therefore is that the Rule is made absolute. We set aside the Order of the Courts below and direct that the matter should go back to the trial Judge in Order that he might consider the question relating to sufficiency of the deposit made by the petitioner and dispose of the case in accordance with law. We make no Order as to costs for this rule. Future costs; will be in the discretion of the Court below. There will be no Order for pre-emption with regard to that portion of the lands described in Schedule 2 which are comprised in the mokarari holding.
6. I agree.