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Sm. Umasashi Debi Vs. Sm. Radha Binodini Devi W/O Panchanon Hazra Choudhury and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1940Cal513
AppellantSm. Umasashi Debi
RespondentSm. Radha Binodini Devi W/O Panchanon Hazra Choudhury and ors.
Excerpt:
- .....the kobalas the present section 26f, bengal tenancy act, was not in force. under the old section a cosharer tenant had no right to claim a re-transfer of a share of the tenancy sold to a stranger. this right was in the immediate landlord of the transferor. the present section 26f which confers the right on a cosharer tenant to claim a transfer to him of the share of a tenancy sold to a stranger by another cosharer came into force on 18th august 1938 after the execution of the kobalas. the fact that the kobalas were registered on 31st august 1938 after the new section came into force does not, according to the view of the lower appellate court, help the petitioner inasmuch as section 47, registration act, says that a registered document shall take effect from the date of execution and not.....
Judgment:
ORDER

Sen, J.

1. These two rules raise a common question for determination. They have been heard together and this order will govern both the rules. I shall take up for consideration Rule 1603 of 1939. The petitioner is a cosharer in an occupancy holding. Her coaharers sold their share to the opposite party No. 1 who is a stranger by two kobalas dated 14th June 1938. On 31st August 1938 the kobalas were presented for registration and registered. On 23rd January 1939 the petitioner applied under Section 26F, Bengal Tenancy Act, that the share sold to the opposite party No. 1 be transferred to her. The learned Munsif refused the application. The petitioner appealed to the District Judge who upheld the decision of the Munsif. Hence this application in revision. The ground on which the application of the petitioner was refused is this. On the date of the execution of the kobalas the present Section 26F, Bengal Tenancy Act, was not in force. Under the old Section a cosharer tenant had no right to claim a re-transfer of a share of the tenancy sold to a stranger. This right was in the immediate landlord of the transferor. The present Section 26F which confers the right on a cosharer tenant to claim a transfer to him of the share of a tenancy sold to a stranger by another cosharer came into force on 18th August 1938 after the execution of the kobalas. The fact that the kobalas were registered on 31st August 1938 after the new Section came into force does not, according to the view of the lower Appellate Court, help the petitioner inasmuch as Section 47, Registration Act, says that a registered document shall take effect from the date of execution and not from the date of registration. The lower Court held that the title to the transferred property had vested in the transferee on the date of the execution of the kobalas and that the petitioner could not claim to divest him of such title by relying on a right which was not then in existence and which had come into existence by an amendment of the law effected after such right had vested.

2. The petitioner contended that this view is erroneous. The argument of the learned advocate on her behalf is that the transfer did not become effective till the date on which the kobalas were registered; on that date Section 26F was in force and the petitioner having applied within the time prescribed by Section 26F there was no bar in her way of getting a re-transfer. This is a case of first impression and it must be decided with reference only to the words of Section 26-F without the assistance of any judicial interpretation of the Section. There is no doubt that the sale to the opposite party No. 1 takes effect from 14th June 1938 (the date of execution) and not from the date of registration. Section 47, Registration Act, is quite clear on this. It says:

A registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made and not from the time of its registration.

3. The words used are 'shall operate' not 'shall be deemed to operate.' Therefore I hold that the transfer in favour of the opposite party 1 operates from the 14th June 1938 i.e., from before the amended Section 26F came into force. The next question is whether in this event the petitioner can get a retransfer under Section 26F, Ben. Ten. Act. Now what are the words of this Section? The relevant words are these:

Any one or more cosharer tenants of the holding, a portion or share of which is transferred, may within four months of the service of the notice under Rule 26C apply to the Court for the said portion to be transferred to himself or themselves.

4. The Section then goes on to say that if the application is in time and if certain deposits are made and other acts are performed the Court shall make an order allowing the application (26F(5)), It further provides that from the date of making the order

the right, title and interest in the portion or share of the holding accruing to the transferee from the transfer shall....be deemed to have vested....in the cosharer tenant.

5. The notice to be served under Section 26C is the notice which has to be supplied to the Registering Officer by the transferor for service on the cosharer tenants under Section 260(4), Ben. Ten. Act. To say that Section 26F, Ben. Ten. Act, conferred a right of pre-emption upon a cosharer from the date when the Section came into force and to argue from this that the conferment of such a right cannot have retrospective effect and cannot divest persons of rights which had already accrued is neither an accurate statement of the purport of Section 26F nor a sound argument of its effect on vested rights. It must be remembered that Section 260 was put into force at the same time as Section 26F. Section 260 imposed certain duties upon the cosharer tenant who had transferred his share in the tenancy. It laid down that the transferor must file notices with the Registering Officer and process fees so that the notices may be served on his cosharers and it said that unless this was done the transfer would not be registered. Section 26F gave the petitioner the right to apply after receipt of this notice for a re-transfer of the share sold to him provided he applied within four months of the notice.

6. The duties imposed upon the transferor by Section 26C and the rights conferred upon the cosharers by Section 26E came into effect on 18th August 1938. On that date Section 26F in clearest terms gave one cosharer the right to make an application to divest a stranger transferee of his title acquired by purchase from another cosharer. It directed in clear terms that the application should be made after receipt of the notice of registration and not before. The right to make the application would arise upon receipt of this notice. Before that the cosharer was not required to do anything nor could he do anything. The Section provided that if such an application is made and certain requisites were performed the Court was bound to order a re-transfer. The Section did not say anything about the date of execution of the deed of transfer. What has to be ascertained is whether all the conditions mentioned in Section 26F have been satisfied in this case. In my opinion, they have been satisfied. On the date on which the application was made a part of the holding had been transferred by a cosharer to a stranger, the transfer was registered after the new Section 260 came into force, a notice under Section 260 was served on the petitioner and the application was made within four months of the receipt of the notice.

7. The other requisites provided in Section 26F have admittedly been satisfied. There remained, in my opinion, no alternative in the Court but to perform its duties under the Section and direct a re-transfer to the petitioner. The question whether the Section has retrospective effect does not really arise. It is not necessary for the petitioner to claim that the section has retrospective effect. She claims that on 18th August 1938 she was given the right to apply for a re-transfer to her of the share of the tenancy sold to the opposite party No. 1 and she asserts that there are no reasons why she should be deprived of the right which the Section expressly grants to her. I consider that there can be no answer to this claim. The provision contained in Section 47, Registration Act, whereby a transfer is made to relate back to the date of the execution of the document does not really touch the question which has to be decided. I agree that the transfer to the opposite party must be taken to have been made on 14th June 1938; I agree that the right to the property vested in the opposite party on that date but this will not affect the right expressly given to the petitioner by Section 26F, Ben. Ten. Act, to get the property transferred to her by making an application to this effect within four months of the date of the receipt of the notice of registration of the deed. In this view, the order passed by the learned Court below must be set aside and the application for re-transfer must be allowed. The rule is made absolute with costs. Hearing, fee one gold mohur. This decision will also affect Rule 1832 of 1939. The point involved there is exactly the same. That rule is also made absolute with costs. Hearing fee one gold mohur.


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