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Lokeman Ali Vs. Abdul Motaleb and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1947Cal327
AppellantLokeman Ali
RespondentAbdul Motaleb and anr.
Cases ReferredGirija Nath v. Ahamadali Sardar Reported
Excerpt:
- .....19-2-1944. abdul motalib again transferred these lands to opposite party 2 samsuzzoha. petitioner shek lokman ali made an application under section 26f (1) within four months of the transfer to abdul motalib but after the transfer by abdul motalib to samsuzzoha and deposited the amount of the consideration money for which abdul motalib purchased, together with compensation. he made both abdul motalib and samsuzzoha parties to the application. a preliminary objection was taken by samsuzzoha that he was not a necessary party and this objection was allowed. samsuzzoha's name was struck off; shek lokman ali's application was allowed as against abdul motalib only, and the latter was allowed to withdraw the money in deposit 'subject to equities that may be available against him'. shek lokman.....
Judgment:
ORDER

Lodge, J.

1. This Rule was issued to show cause why an order passed under Section 26F, Bengal Tenancy Act should not be set aside or modified. The material facts are not in dispute. The petitioner Shek Lokman Ali was one of a number of co-sharers in possession of a rayati holding recorded in khatian No. 110 of Mouza Kaspai in the district of Birbhum having acquired his interest by purchase by a kobala, dated 12-2-1944, but registered on 5-6-1944. C.S. Plot No. 409 is one of the plots comprised in that rayati holding. Other lands of the holding were transferred by other cosharers to opposite party 1 Abdul Mota-lib by a registered kobala, dated 19-2-1944. Abdul Motalib again transferred these lands to opposite party 2 Samsuzzoha. Petitioner Shek Lokman Ali made an application under Section 26F (1) within four months of the transfer to Abdul Motalib but after the transfer by Abdul Motalib to Samsuzzoha and deposited the amount of the consideration money for which Abdul Motalib purchased, together with compensation. He made both Abdul Motalib and Samsuzzoha parties to the application. A preliminary objection was taken by Samsuzzoha that he was not a necessary party and this objection was allowed. Samsuzzoha's name was struck off; Shek Lokman Ali's application was allowed as against Abdul Motalib only, and the latter was allowed to withdraw the money in deposit 'subject to equities that may be available against him'. Shek Lokman Ali appealed; this appeal was dismissed with costs.

2. It seems to me clear that the petitioner Shek Lokman Ali being a cosharer tenant of the occupancy rayati holding both at the time of the transfer to Abdul Motalib and at the time of the transfer by Abdul Motalib to Samsuzzoha, and the transfers to Abdul Motalib and to Samsuzzoha not being within the exceptions mentioned in Section 26F(1), Bengal Tenancy Act, the petitioner Shek Lokman Ali is entitled to invoke the provisions of Section 26F and apply to the Court for the portion transferred to Abckil Motalib and to Samsuzzoha to be transferred to himself. Shek Lokman Ali was a cosharer of Abdul Motalib's vendors at the time of the transfer to Abdul Motalib; and he could certainly invoke the provisions of the section against Abdul Motalib at least up to the time when Abdul Motalib trans, ferred his interest to Samsuzzoha. Shek Lokman Ali, if he did not or ould not exercise his right against Abdul Motalib, became a cosharer with the latter and at the time of the transfer to Samsuzzoha could if he desired have exercised the right granted by the section as against Samsuzzoha alone. The question is whether when Shek Lokman sought to exercise his rights, under .the section in respect of the transfer to Abdul Motalib, other transferees from Abdul Motalib would be bound. In other words, did Samsuzzoha purchase the share of Abdul Motalib subject to the exercise of a right of pre-emp. tion by the cosharers of Abdul Motalib's vendors? The Courts below seem to have held that he did not.

3. There is no reported case exactly on all fours with this case. But there is a decision of Edgley J. in Civil Revn. case No. 788 of 1945 Girija Nath v. Ahamadali Sardar Reported in : AIR1947Cal126 which deals with the ease of a subsequent transfer by the first transferee, the distinction between that case and the present being that the subsequent transfer was made after the application was made under Section 26F in that case, but before that application in the present case. Edgley J. observed:

As soon as a transfer of a share in a holding is effected a right to pre-empt immediately accrues to the cosharer-tenants, and any subsequent transferee of the property must take it subject to that right.

4. It was suggested in argument before me that Edgley J.'s decision was based on an extension of the doctrine of lis pendens, and was applicable only to cases where the subsequent transfer was made after an application under Section 26P had been filed. I am unable to agree with this view. The decision of Edgley J. seems to me based on the obvious fact that any other interpretation of the section would enable a transferee to defeat the object of the Legislature. This argument applies with equal force whether the subsequent transfer is made before or after the application under Section 26F is made. A prior transferor might transfer to a relative for a greatly enhanced consideration immediately after his own transfer and thus defeat the object of the Legislature; or he might make a gift of the right so acquired, to his own son and thus defeat the object of the section unless the view adopted by Edgley J. be accepted. The provisions of Section 26F(7)(a) also seem to indicate that it was the intention of the Legislature to prevent a transferee dealing with the property to the prejudice of a possible pre-emptor. I am therefore of opinion that the decision of Edgley J. is equally applicable to the facts of the present case; and I respectfully agree with that decision. It follows that Samsuzzoha bought the property from Abdul Motalib subject to the right of Shek Lokman Ali to pre-empt; and that when Shek Lokman exercised his right within the time prescribed by law, he was entitled to recover the property from Samsuzzoha. It also follows that Samsuzzoha was a proper party to the proceedings.

5. There was a suggestion that inasmuch as the transfer to Samsuzzoha was made before Samsuzzoha knew of Shek Lokman Ali's interest, Samsuzzoha could not have bought subject to a right on the part of Shek Lokman Ali to pre-empt. I can see no force in this argument. Samsuzzoha knew that he was purchasing a share in an occupancy rayati holding; he knew that his vendor had a cosharer or cosharers; he knew that his vendor had acquired his interest by transfer shortly before the transfer to Samsuzzoha. He must have known therefore that some person had a right to pre-empt when his vendor obtained the property by transfer. The fact that he did not know the identity of the person who had the right to pre-empt makes no difference, in my opinion, to the rights of the parties. The rule is, therefore, made absolute. The order of the Munsif striking off the name of Samsuzzoha is set aside and it is ordered that the petitioner do get the lands mentioned in the schedule by way of pre-emption and that opposite party Samsuzzoha be bound by this order. Petitioner will recover costs of all Courts from opposite parties 1 and 2. Hearing fee one gold mohur.


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