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Asmatali Sharip Vs. Mujaharali Sardar and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy;Limitation
CourtKolkata
Decided On
Reported inAIR1948Cal48
AppellantAsmatali Sharip
RespondentMujaharali Sardar and ors.
Cases ReferredIn Sakti Saran v. Radharaman Mandal
Excerpt:
- .....exercise of the right, but merely-imposes a limit of time with regard to applications filed by co-sharers served with notice of the transfer. the right accrues as soon as the transfer is made. the first point therefore is decided in favour of the petitioner.15. the second point that is raised on behalf of the opposite party does not seem to present much difficulty. the right of pre-emption exercisable by a co-sharer tenant has been created for the first time by section 26(f), bengal tenancy amendment act of 1938, and the section itself lays down as to how the right is to be enforced. in these circumstances the remedy by way of application as provided for by the section should be deemed to be exclusive, and the ordinary right of suit must be held to be barred. as lord tenterden c.j......
Judgment:

B.K. Mukherjea, J.

1. This Rule is directed against an appellate judgment of K.M. Islam Esq., and Sub-Judge, Barisal dated 24th March 1946 by which he affirmed an order of dismissal made by the Munsif 5th Court of that place, of an application, presented by the petitioner Under Section 26(f), Bengal Tenancy Act.

2. The facts material for our present purposes lie within a short compass and may be stated as follows:

3. There are two occupancy holdings recorded in Khatians 12 and 38 of a certain mouza, which belonged jointly to the petitioner and opposite parties 4-7. On 23rd January 1942, the opposite parties 4 and 5 transferred their interest in both the holdings by way of out and out sale to opposite parties 1-3, the consideration money being stated to be Rs. 100 in one of the kobalas and Rs. 200 in the other. It is admitted that no notice Under Section 26(c)(4), Bengal Tenancy Act was served upon the petitioner. On 16th December 1943, the petitioner presented an application for purchase of the share conveyed to opposite parties 1-3 Under Section 26(f), Bengal Tenancy Act, and it was stated in the application that he came to be aware of the sale for the first time on 30-11-1943. The application was resisted by the purchasers on a two fold ground. It was said in the first place, that the applicant was not a co-sharer tenant and hence had no locus standi to present the application. The other ground taken was that the application was time barred.

4. The trial Court decided the first point in favour of the petitioner and held that he was a co-sharer tenant and hence entitled to apply for pre-emption Under Section 26(f), Bengal Tenancy Act. On the other point, however, the decision was against him and it was held that as the petitioner was aware of the sale long before November 1943 and did not come to Court within four months from the date of his knowledge, the application was time barred. On appeal this decision was affirmed by the Sub-Judge, Barisal. The petitioner has now come up on revision to this Court.

5. The rule originally came up for hearing before one of us sitting singly and it was referred to a Division Bench. As the case involves certain points of law with regard to which there appear to be no clear provisions in Section 26(f), Bengal Tenancy Act, it has been heard by this bench of three Judges, along with other cases involving similar points, under the direction of the Hon'ble the Chief Justice.

6. The questions requiring decision in this case are certainly not free from difficulty, and before we advert to the arguments that have been advanced by the learned Advocates appearing for the parties, it would be necessary we think, to examine carefully the language of the Section itself. Section 26(f) was first introduced into the Bengal Tenancy Act, by Bengal Act 4 IV of 1928, which made all occupancy holdings transferable in law subject to 'the conditions prescribed by the Amending Act. As it was then framed, Section 26(f) gave a right of pre-emption to the immediate landlord of the occupancy holding, when the holdings was transferred by the tenant, except in certain cases specified in the section and the procedure for enforcing the right was laid down in the Section itself. This was changed in 1938, and by Bengal Act, 6 [VI] of 1938 the landlord's right of pre-emption was taken away and in place of that a right of preemption was given to co-sharer tenants, when a portion or share of the holding was transferred by the other co-sharers. The substantive provision of the old Section 26(f) was dropped altogether, but subject to necessary alterations the language of the old Section was repeated in the new and practically the same procedure was laid down for enforcing the right of pre-emption by a co-sharer tenant which was to be adopted by the landlord under the old Section.

7. Section 26(f)(1) as it now stands, provides, that except in cases of transfer of certain kinds which are enumerated in Clauses (a) to (e).

one or more co-sharer tenants of the holding, a portion or share of which is transferred, may, within four months of the service of notice Under Section 26(c) apply to the Court for the said portion or share to be transferred to himself or themselves.

8. Sub-section (2) lays down that.

the application shall be dismissed unless the applicant or applicants at the time of making it, deposit in Court the amount of the consideration money or the value of the transferred portion or share of the holding, as stated in the said notice, together with compensation at the rate of ten per cent, of such amount.

9. The rest of the Section is not material for our present purpose.

10. The first question that has been raised before us is whether a co-sharer tenant upon whom no notice of transfer has been served has at all a legal right to pre-empt Under Section 26(f)(1), Bengal Tenancy Act. If the service of notice Under Section 26(c) is a condition precedent to the exercise of the right of pre-emption the present petitioner would be admittedly out of Court, as no notice of transfer was at all issued in this case.

11. If it be held that the right of pre-emption is not dependent on the service of the notice of transfer the next question which arises for consideration is whether the remedy laid down in Section 26(f) is available to a co-sharer tenant, who has not been served with a notice of transfer. Can it be said that in such cases the remedy is by way of an ordinary suit in the civil Court?.

12. If it be decided that for both the notified and the non-notified co-sharer the remedy is the same, viz., by way of application as provided for in the Section, the last and the most important question for consideration is, what is the period of time within which an application by a co-sharer not served with notice of transfer, has got to be filed? If there is no provision in the Section regarding the limit of time in such cases, is it necessary that the application must be filed within four months or within a reasonable period of his actually getting knowledge of transfer?.

13. We will take up these three points one after another. It does not admit of any dispute that the language of the Section is extremely unhappy, and it is a matter of surprise that although difficulties arising out of bad draftsmanship were pointed out, in more cases than one decided under the old Section 26(f) practically the same language was reproduced in the new Section without any attempt at removing the defects.

14. The first question is whether the right of pre-emption Under Section 26(f), Bengal Tenancy Act, can be exercised by a co-sharer tenant who has not been served with a notice of transfer Under Section 26(c) of the Act. The obvious intention underlying the Section is to prevent a stranger from entering into the family group of tenants, and if this intention is to be given effect, no distinction between notified and non-notified co-sharers can properly or legitimately be made. If the right to apply for pre-emption arises only when a co-sharer is served with notice Under Section 26(c), Bengal Tenancy Act, nothing would be easier for the purchaser than to withhold such notice and render the operation of the Section altogether nugatory. That the right of pre-emption given by Section 26(f) is not dependent on service of the notice of transfer would be apparent from the provision of Section 26(c)(4) itself which says that notice is to be given only in cases where the provisions of Section 26(f)(1) apply. The whole difficulty is created by the fact that the provision as regards time has been interpolated between two parts of the section, which confers on the co-sharer the right to apply for pre-emption. This is undoubtedly bad draftsmanship, but we think that having regard to the clear intention which the Legislature had in enacting Section 26(f) and the provision of Section 26(c)(4) itself, we should hold that the right to apply for pre-emption is given by Section 26(f)(1) to all co-sharer tenants irrespective of the fact whether the notice Under Section 26(c) is served or not. The provision relating to time is in our opinion a separate and an independent provision which is not an essential condition of the exercise of the right, but merely-imposes a limit of time with regard to applications filed by co-sharers served with notice of the transfer. The right accrues as soon as the transfer is made. The first point therefore is decided in favour of the petitioner.

15. The second point that is raised on behalf of the opposite party does not seem to present much difficulty. The right of pre-emption exercisable by a co-sharer tenant has been created for the first time by Section 26(f), Bengal Tenancy Amendment Act of 1938, and the Section itself lays down as to how the right is to be enforced. In these circumstances the remedy by way of application as provided for by the Section should be deemed to be exclusive, and the ordinary right of suit must be held to be barred. As Lord Tenterden C.J. observed in Doe d. Bishop of Rochester v. Bridges (1831) 1 B and Ad. 847 at p. 859.

Where an act creates an obligation, and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner. If an obligation is created but no mode of enforcing .its performance is ordained, the common law may in general, find a mode suited to the particular nature of the case.

16. The same principle was enunciated by Willes J. in Wolverhempton New Water Works Corporation v. Hawksford (1859) 6 C.B. (N.S.) 336 and was followed by the Judicial Committee in Attorney-General of Trinidad and Tobago v. Gordon Grant and Corporation (1985) 1935 A.C. 532. As we have held that even a co-sharer who has not been served with notice of transfer comes within the provision of Section 26(f)(1), Bengal Tenancy Act, the only way by which be can enforce his right to apply for preemption (is?) as laid down in the Section.

17. It was contended by the learned Advocate for the opposite party that Sub-section (2) of Section 26(F) which insists on the applicants' depositing the consideration money as stated in the notice of transfer, would go to show that the provision of this Sub-section was never intended to be made applicable to a co-sharer not served with notice. This is undoubtedly another defect in draftsmanship, and the Legislature seems to have assumed that notice of transfer would in all cases be served upon the co-sharers of the vendor. We do not think however that it would be impossible for a non-notified co-sharer to comply with the provision of Sub-section (2) of Section 26(f). All that the Sub-section says is that that the application shall be dismissed in limine unless the applicant deposits in Court the value of the property or the amount of consideration money as stated in the notice Under Section 26(c) together with 10% of the sum as compensation. The value of consideration money specified in the notice must, subject to any clerical or arithmetical error which Courts can always rectify, be the same as the value of consideration stated in the instrument of transfer, The applicant even though he might not get any notice under Section 26(c) must be acquainted with the contents of the deed of transfer before he files the application, and it would be a sufficient compliance with the requirement of Sub-section (2), if the amount stated in the conveyance is deposited. In our opinion, the language of Sub-section (2) of Section 26(f) is not such as to compel the inference that the legislature did not intend to make the remedy by way of application available to a co-sharer who was not served with a notice Under Section 26(c).

18. The third and the most material point which arises for our consideration is as to what is the period of limitation when an application for pre-emption is made by a co-sharer tenant who has not been served with a notice of transfer Under Section 26(c).

19. Section 26(f)(i) as stated above, imposes a bar of time with regard to applications by co-sharers who are served with notice of transfer. They have got to come within 4 months from the service of notice. The Section says nothing about co-sharers not served with notice though with regard to them as we have said above, the right to apply does not depend upon service of the notice of transfer. Under old Section 26(f) which related to the right of pre-emption exercible by the landlord, the landlord had to come within 2 months of the service of notice under. Section 26(c), Bengal Tenancy Act, and, it was held in a number of cases, all of which were decided by Judges sitting singly that if the landlord was not served with a notice of transfer, he was bound to apply within a reasonable time of his knowledge of the transfer. The first decision on this point is that of D.N. Mitter J. in Surjya Kumar v. Munshi Noab Ali : AIR1932Cal289 . This was followed by Costello J. is Baikuntha v. Shamsul Hug : AIR1934Cal662 and noticed without dissent by Section K. Ghosh J. in Brijendra Kumar v. Syamanessa Bibi : AIR1934Cal830 .

20. So far as the present Section 26(f) is concerned it was held by Henderson J. in Ayetennessa v. Jahar Ali ('41) 45 C.W.N. 735 that the same principle would apply and that a co-sharer tenant, who was not served with notice should apply within a reasonable time from his knowledge of the sale.

21. What is reasonable time would of course have to be determined on the facts and circumstances of each particular case, but as a matter of practice, the rule that is generally followed by lower Courts is, that the applicant must come at least within 4 months from his knowledge of the transfer, and any delay beyond that is considered to be unreasonable. We have to consider whether the view taken in the cases referred to above can be accepted as correct. A suggestion was put forward by the learned Advocate for the opposite party, that although the legislature has not specifically prescribed any period of limitation within which an application by a non-notified co-sharer is to be filed, the Court should in such cases take the period of limitation to be the same as in the case of notified co-sharer viz., 4 months, and the only difference would be that the starting point instead of being reckoned from the service of notice would be courted from the date of knowledge of the transfer. It is argued that the object of the notice is to acquaint the co-sharer of the fact of the sale, and is he has got knowledge aiunde he cannot claim more than months from the date of his knowledge.

This suggestion we feel unable to accept. It is against sound canons of construction to enlarge the scope of a statute of limitation by importing into it words which are not found there. It was held by their Lordships of the Privy Council that a statute of limitation like all others, ought to receive such a construction as the language in its plain meaning imports, and we can not by a process of so-called equitable construction, extend a rule of limitation to cases, which might be within the reasons but not within the words of the Statute, Mahomed Bahadur Khan v. Collector of Bareilly ('74) 21 W.R. 318; vide the observation of Tindal C.J. in Hyde v. Johnson (1836) 2 Bing N.C. 776. We do not think that it is permitted to us to substitute the words 'knowledge of transfer' for the words 'service of notice' as used in the Section. It is well settled that a casus omissus or a mistake made by the framers of the statute would not be remedied by a Court of law. A case which has been omitted is not to be supplied merely because there seems no good reason why it should have been omitted, and the omission appears consequently to be unintentional (vide Maxwell on Interpretation of Statutes, Edn. 7, p. 12). For the same reasons the doctrine of reasonable time which was enumerated in the cases noted above, seems to us to be unacceptable. In case of equitable relief, the Court might refuse the prayer of an applicant who has unduly slept over his rights. This principle can certainly be applied when orders, which are more or less discretionary with the Court to pass, are claimed by a litigant. If the claimant is guilty of undue delay by which the other side has been prejudiced the Court is always competent to refuse to make an order. It cannot be said however that the relief by way of pre-emption as provided for in Section 26(f), Ben. Ten. Act, is a discretionary relief and the Court is at liberty to refuse the prayer if in its opinion it is likely to cause injustice. In these circumstances if the Legislature either inadvertently or otherwise omitted to provide any period of limitation for applications of a particular type, we are unable to say that such applications should be refused if not made within a reasonable time. This would be to legislate and not to interpret the law as it stands. In our opinion therefore the view taken in the decisions referred to above is not sound and cannot be accepted.

22. Mr. Roy appearing on behalf of the opposite party conceded that if there is really a casus omissus regarding the period of limitation for application by co-sharers not served with notice of transfer, a Court of law would not be justified in importing the doctrine of reasonable time it, such cases. He contended however that the Legislature omitted Act provide for non-notified co-sharers at all in the section, and neither their right nor their remedy were specified. In such circumstances he says as the omission is unintentional and would obviously lead to injustice, a Court of law would be quite competent to create a right in favour of non-notified co-sharers, as a measure of equity, justice and good conscience, in exercise of its powers Under Section 37, Civil Court Act. As the right thus created is an equitable right, the Court would be at liberty to mould the provision of the Section in such a way as would be conducive to equity and justice. The argument no doubt is ingenious but as we have already held that the right of not notified co-sharers is created by the Section itself, and there is no omission on that point, the contention apparently loses all force.

23. The last thing we have to consider is whether in the absence of any specific provision in the Section itself regarding the period of time within which an application for pre-emption is to be filed by a non notified co-sharer, any rule of limitation, laid down by the Limitation Act is attracted to such cases. In our opinion such cases should be governed by Article 181, Limitation Act, which is the residuary Article applicable to all applications for which no period of limitation is provided for elsewhere in Schedule 1 to the Act or by Section 48, Civil P.C., 1908. We are not un-mindful of the fact that in a long aeries of decisions it has been held that the residuary Article is confined only to applications made under the Civil Procedure Code. The decision of the Bombay High Court in Bai Manekbai v. Manekji ('83) 7 Bom. 213 and that of the Calcutta High Court in Inre Ishan Chunder Roy ('81) 6 Cal. 707 are the earliest authorities on the point. The main reason given in both these decisions is that an examination of all the Articles in Schedule 1, Limitation Act, relating to applications shows that in every one of them the application is made under the Civil Procedure Code. A residuary Article, it is said should be construed ejusdem generis with the other Articles dealing with applications. The other ground put forward is that the preamble to the Limitation Act indicates that it is intended to apply not to all applications but only to certain applications. This view has been adopted in a large number of cases decided since then by the several High Courts in India: Ranbir Singh v. Drig Pal ('94) 16 All. 23 Teluk Singh v. Parsoteen Pershad ('95) 22 Cal. 924, Rahamat Karim v. Abdul Karim ('07) 34 Cal. 672, Abhoya Charan v. Saroja Sundari 2 A.I.R. 1915 Cal. 85, In Hansraj Gupta v. Dehra Dan Mussoori Electric Tramway Corporation Ltd. a question arose as to whether an application in the winding up by the Official Liquidator of a company, seeking to recover certain sums from certain persons as debtors is governed by Article 181, Limitation Act. Their Lordships of the Judicial Committee in course of their judgment referred to the long line of cases on the point, but they did not decide the question finally inasmuch as the application in the case before them was not time barred even if Article 181' applied. We think that it may be necessary at some time or other to examine closely the reasons upon which the decisions mentioned above purport to be based. It is quite true that a residuary Article must refer to applications of the same kind as these already specified, but it cannot be said that an application under one statute must necessarily be of a different kind from an application under another statute. Moreover Section 29, Limitation Act would seem to suggest that except where special provisions are made by special or local laws the law of limitation laid down in the Limitation Act could apply. Mr. Guha has drawn our attention to the fact that since 1940, all the applications specified in Schedule 1, Limitation Act, are not applications under the Civil Procedure Code and at least two Articles have been introduced, to wit, Articles 158 and 178 by the Arbitration Act of 1940 which relate to applications under the Arbitration Act. We do not think that it is necessary for purposes of this case to pursue this matter any further.

24. In our opinion, an application contemplated by Section 26(f), Bengal Tenancy Act, can be regarded as an application under the Civil Procedure Code, or at any rate an application for the making of which the Civil Procedure Code gives authority: Hindusthan Bank Ltd. v. Mehraj Din 7 A.I.R. 1920 Lah. 51. Under Section 143, Bengal Tenancy Act, subject to any rules to the contrary that the High Court may frame with the approval of the Provincial Government, the Code of Civil Procedure is applicable to all suits under the Act. The same procedure is attracted is applications and other miscellaneous proceedings by virtue of the provision of Section 141, Civil P.C. Section 144(3), Bengal Tenancy Act, further lays down that all applications by landlord or tenant which are authorized to be made under the Act shall be made to the Court which would have jurisdiction to entertain a suit for the possession of the tenure or holding in connection with which the application is made. The entire proceeding in an application Under Section 26(f) is thus regulated by the Civil Procedure Code and we have no hesitation in holding that the residuary Article 181, Limitation Act would be applicable to such applications, except so far as any special provision has been made in regard to them in the Section itself. In Sakti Saran v. Radharaman Mandal : AIR1934Cal396 it was held by Costello J. that Article 181, Limitation Act, applies to an application Under Section 26J, Bengal Tenancy Act, and no question seems to have been raised that the application was not under the Civil Procedure Code. Even under the old Bengal, Tenancy Act, it was held by a Division Bench consisting of Sir Francis Maclean C.J. and Banerji J. that an application to set aside a sale Under Section 173 was governed by the residuary Article there being no period of time prescribed for such application in the Act itself.

25. We hold that an application by a non-notified co-sharer for pre-emption Under Section 26(f), Bengal Tenancy Act, is governed by Article 181, Limitation Act, and the applicant has three years time from the date of transfer when the right to apply accrues.

26. The result is certainly anomalous and might lead to hardship in individual cases. It was obviously the intention of the Legislature that these applications should be made within a short time after the sale, and disposed of as soon as possible. The Legislature however is itself to blame for creating the anomaly and it is up to it to remedy the defect as soon as it can. We can only express the hope that the purchaser would be very careful to see that notice of transfer Under Section 26(c) is duly served on the co-sharers, and, in this way alone, he can prevent the latter from availing themselves of the larger period of limitation. In the case before us, the petitioner upon whom no notice of transfer was served came to Court within three years from the date of sale. The application therefore was within time and could not be held to be time barred.

27. The result is that the rule is made absolute, the judgments of the Court below are set aside, and the case sent back to the trial Court, in order that an order for pre-emption may be made in favour of the petitioner in accordance with law. The petitioner would be entitled to coats of the trial Court. Each party shall bear his costs in this Court as well in the lower appellate Court.

Ormond, J.

28. Having had the benefit of reading the written judgment of my learned brother, I need say no more than that I entirely agree.

G.N. Das, J.

29. I agree.


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