1. In this case an application for preemption was allowed by, both the Courts below but it is contended that the order was wrong having regard to the circumstances of the case which are briefly as follows:
2. On 25-3-1942, a share in a certain holding was transferred by the heirs of Umar Sardar to Pramatha Nath Kundu for a consideration of Rs. 500. Subsequently, on 28-6-1943, this same share was transferred by Pramatha Nath Kundu to the petitioner Girija Nath Kundu for the sum of Rs. 1000. On 16 7-1943, the co-sharer tenants applied for the pre-emption of the transferred property under Section 26F, Bengal Tenancy Act, as against Pramatha Nath Kundu. This person subsequently informed the Court by a petition dated 4-9-1943, that the property in respect of which pre-emption was sought had already been transferred to Girija Nath Kundu on 28-6-1943. Thereafter the co-sharer tenants made Girija Nath Kundu a party to the proceedings and ultimately obtained an order allowing their application for pre-emption and a direction to the effect that the amount of Rs. 550, which had been deposited by them on 16-7-1943, under the provisions of 26F(2), Bengal Tenancy Act, should be paid to Girija Nath Kundu.
3. The main contention of the petitioner in this case is that it was not competent for the Courts below to allow pre-emption on the basis of the transfer to Pramatha Nath Kundu on 25-3-1942, because he (Girija) had subsequently bought the property from Pramatha Nath Kundu, and this being the case, he contends that preemption proceedings, if any, should have been taken by the co-sharer tenants in respect of the conveyance dated 28-6-1943, and that the petitioner should have deposited the sum of Rs. 1100 under Section 26F(2) of the Act which would have been available to Girija Nath Kundu if the application for pre-emption had ultimately been allowed.
4. The learned advocate for the opposite party supports the judgment of the learned Subordinate Judge on the ground that the co-sharer tenants were entitled to apply for pre-emption on the basis of the original transfer dated 26-3-1942, and that any subsequent transfer could not affect the rights which accrued to them by virtue of the first transfer.
5. The provisions of the Bengal Tenancy Act as they stand, do not expressly deal with the rights of co-sharer tenants in respect of transfers subsequent to the original transfer which gives them right to pre-empt. Under Section 26F(1) the co-sharer tenants of a holding are allowed to apply to the Court for the transfer to them of the portion or share of the holding which has been transferred and as a condition precedent, it is stated in Section 26F(2) that:
the application shall be dismissed, unless the applicant or applicants at the time of malting 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 centum of such amount.
6. It seems, therefore, reasonable to suppose that it was the intention of the legislature to allow the co-sharers to pre-empt by depositing the amount of the consideration money which passed at the time of the original transfer, and there can be little doubt that the object of this section would be defeated if co-sharer tenants were required to institute fresh pre-emption proceedings in respect of every subsequent transfer which might be made between the date of the original transfer and the date of their application and to deposit in each case the amount of the consideration money paid in respect of such transfer.
7. As soon as a transfer of a share in a holding is effected a right to pre-empt immediately accrues to the co-sharer tenants and any subsequent transferee of the property must take it subject to that right. If at any time after an application for pre-emption has been made it comes to the notice of the co-sharer applicants for pre-emption that the property has been again transferred there is nothing in the section as it stands, to prevent the subsequent transferee from being made a party to the proceedings, as was done in the case with which we are now dealing, and it seems to me that Section 26F(5) of the Act was expressly framed to provide that in certain suitable cases the money which had been deposited might be paid to a subsequent transferee. It is however significant that Section 26F(5) only expressly refers to the original deposits made under Sub-sections (2) and (3) and the Act does not appear to contemplate the payment to any subsequent transferee of any sum in excess of the original deposits.
8. As far as Girija Nath Kundu is concerned, I do not think that he is entitled in these proceedings to recover more than the sum of Rs. 550-and it will be for him, if so advised, to seek his remedy in respect of the balance of the consideration money paid by him on 28-6-1943, by a properly constituted suit. Having regard to the above considerations this rule must be discharged. I make no order as to costs.