G.N. Das, J..
1. This rule is directed against an order for pre-emption made by Mr. N.L. Shome, Subordinate Judge 2nd Court, Alipore, and dated 25-6-1947, passed in Miscellaneous Appeal No. 135 of 1947 affirming an order of Maulvi S. Ali Munsif, 1st Court, Diamond Harbour, passed in Miscellaneous Judicial Case No. 271 of 1946 (26F).
2. The facts shortly stated are that an occupancy holding recorded in R.S. Khatian No. 54 of Pargana Sunderbans District 24-Parganas was purchased in 1910 by three brothers Murari Mohan Bera, Hari Narayan Bera and Kedarnath Bera.
3. By a deed of partition dated 25-1-1926, between Murari Basanta Kumari, widow of Harinarayan, and Kedar Nath the said holding together with other lands was partitioned; the disputed holding was allotted only to Murari and Kedar Nath in demarcated shares.
4. Kedarnath was later on adjudged an insolvent by the District Judge, 24-Parganas in Insolvency case No. 37 of 1930 and the estate of the insolvent became vested in the Official Receiver. On 5-7-1936, the Official Receiver in the course of administration sold the demareated. share of Kedarnath to the petitioner Debendranath Sen and the petitioner alleges to have got into possession. No formal deed of sale was executed at the time.
5. In 1938, Murari instituted a proceeding Under Section 88, Bengal Tenancy Act being Misc. judicial case No. 613 of 1938 for distribution of the rent of the holding; in this application the Official Receiver was not made a party, only the landlord and the heirs of Kedarnath were made parties. By an order dated 15-5-1939, rent of the said holding was distributed the order coming into force on and from 1346 B.S.
6. On 16-7-1944, Murari sold his allotment of the disputed holding to the opposite party Jnanendra Nath Bera under a registered kobala Ex. 5. The kobala recites the partition of 1926.
7. On 10-2-1946, the Official Receiver executed and registered a kobala in favour of the petitioner in respect of the sale dated 5-7-1936. This was marked as Ex. 5A.
8. On 6-5-1946, the opposite party staried a proceeding Under Section 26F, Bengal Tenancy Act, for pre-emption. The application was allowed by the Munsif and his decision was affirmed on appeal.
9. The purchaser Debendranath Sen moved this Court in revision and obtained the present rule.
10. Mr. Lahiri appearing for the petitioner has urged the following points: (1) That the application for pre-emption did not lie inasmuch as the sale which was made by an Official-Receiver in course of administration, was really a sale by the Court and could not be regarded as a voluntary transfer giving rise to a right of pre-emption. (2) That the effect of the deed of partition between Murari, Basanta Kumari and Kedarnath was to sever their jointness and they ceased to be co tenants under the meanissg of Section 26F of the Act. (3) That the effect of the order Under Section 88, Bengal Tenancy Act, distributing the rent was to split up the holding and Murari, the vendor of the pre-emptor opposite party, ceased to be a co-sharer tenant and could not apply for pre-emption.
11. I shall now deal with the above contentions. The first point, in my opinion, does not bear examination. Under Section 28 (2), Provincial Insolvency Act, on the making of an order of adjudication, the whole of the property of the insolvent shall vest in the Court or in a Receiver as provided in the Act. Under Section 57 of the Act the Local Government may appoint a person (to be called Official Receiver) to be Receiver under the Act with specific local limits and every such person shall be the Receiver for the purpose of every order of a Court in insolvency appointing a Receiver or an interim Receiver. Under Section 59 of the Act a Receiver shall, with all convenient speed, realize the property of the debtor and distribute dividends amongst creditors and for that purpose may, inter alia, sell all or any property of the insolvent. Any act or decision of the Receiver is, Under Section 68 of the Act, subject to an appeal to the Court. It would, therefore, follow that the sale by an Official Receiver is his own voluntary act subject to superintendence of the Court and is not a sale by the Court. The distinction., between a sale by a Receiver appointed by a Court and a sale by the Court was thus stated by Fletcher J. in Golam Hossain v. Fatima Begum. ('12) 16 C.W.N. 394 'Sales by the Court are cases in which the Court makes a title to the purchaser and the Court confirms the sale and issues a sale certificate. The second case is where the Court authorizes a trustee or a receiver or other person holding property to sell the property and the sale is made out of Court. The Court while authorizing or directing the sale does not make any title in the purchase and in such a sale the Court does not grant a sale certificate nor does it confirm the sale.
12. In Abdul Hashim v. Amar Krishna. 6 A.I.R. 1919 Cal. 193 which dealt with the case of a sale by an Official Receiver, Fletcher and Cuming JJ. held that a conveyance by the receiver was not outside the operation of Section 54, T.P. Act and the title of a purchaser under a sale by the Official Receiver required to be perfected by a proper conveyance as required by the Transfer of Property Act.
13. A Bench of five Judgea of the Madras High Court had to consider the question in Basava Sankaram v. Narasimhalu. 14 A.I.R. 1927 Mad. 1 It was held by four of the learned Judges that a sale by an Official Receiver was really a private sale and not a sale by operation of law. Kumarswamy Shastri, Offg. C.J. at pp. 143-144 observed that no leave or sanction of the Court is required in case of a sale by an Official Receiver and such a sale is not a sale by operation of law. Ramesam J. stated that an Official Receiver is not an agent of the Court and a sale by him is not a sale by the Court. Venkatasubba Rao J. thus expressed himself at p. 156:
When the property vesta in a receiver on insolvency there is a transfer by operation of law but when a receiver transfers the property to an alienee, the alienation is a voluntary transfer and is as such an act of parties as any transfer by a private individual.
Curgenven J. at p. 159 observed that such a sale is frequently a matter of discretion and so a voluntary sale on the part of the receiver, as the purchase is on the part of the buyer and, although the receiver may be a public officer, the transaction is not the less an act of parties on that account.
14. Krishnan J. who dissented, stated at p. 148 that a sale by an Official Receiver is in the nature of a court sale:
In such sales there is no covenant for title. What the Official Receiver sells is merely the title of the insolvent, if any, and the purchaser takes what he can get.. Compulsory sales in invitum by Court or by its officer stand on a very different footing from private sales.
15. In my opinion, a sale by an Official Receiver acting under the powers conferred on him by Section 59 of the Act though subject to supervision by the Court on an appeal Under Section 68 of the Act is a voluntary act of the receiver resting on his sound discretion and he merely finds out the best purchaser by an auction who purchases on their own terms and volition. It is thus a voluntary transfer and is subject to the provisos of Sections 26A, 26C and 26F, Bengal Tenancy Act.
16. The right to pre-empt Under Section 26F of the Act accrues on the transfer: Jatindra Nath De v. Jetu Mahto 33 A.I.R. 1946 Cal. 339 at p. 514. The date of accrual of the right is not the date of execution of the deed of sale or any earlier date but the date when the deed of sale is registered and title effectively passes: Gobardhan Bar v. Gunadhar Bar. : AIR1941Cal78 .
17. The fact that the bid was held by the Official Receiver and the price was paid in July 1936 or that possession was made over to the purchaser (i.e. the petitioner) does not affect the liability of the petitioner to be pre-empted when the title of the property validly passed to the latter on the registration of the kobala by the Official Receiver on 10-2-1946, This is the material date for finding out the persons who are entitled to pre-empt. The opposite party claims that he was a co-sharer tenant of the holding on that date and hence entitled to preempt. To this the purchaser (petitioner) raises two rejoinders as stated in grounds (2) and (3). In the first place it is said that the effect of the partition in 1926 was to sever the joint status of the vendors of the petitioner and of the opposite party. In the second place it is said that the order passed in the proceedings Under Section 88, Bengal Tenancy Act, had the effect of severing the status as co-sharer tenants.
18. The first rejoinder therefore raises the question viz. whether co-sharer tenants who have amicably partitioned their lands, cease to be co-sharers, irrespective of the fact whether or not the landlord recognizes the partition. This depends on the meaning to be put upon the words 'one or more co-sharers in the holding.
19. The word 'holding' is defined in Section 3 (5), Bengal Tenancy Act, to mean 'a parcel or parcels of land or an undivided share thereof, held by a raiyat or an under-raiyat and forming the subject of a separate tenancy;[whether the raiyat or under-raiyat has held the land before or after the commencement of the Bengal' Tenancy Amendment Act 1928;].
The words in square brackets were inserted by Act VI B.C., of 1938. The word 'tenant' is defined in Section 3(17) of the Act to mean
a person who holds land under another person, and is or but for a special contract would be, liable to pay rent for that land to that person....
20. Both these definitions are controlled by the opening words of section. unless there is something repugnant in the subject or context.
21. It is argued on behalf of the opposite party that the partition amongst the co-tenants does not affect the landlord. This may be conceded. But Section 26F of the Act, as it stands after the Act of 1938, merely adjusts the rights of co-tenants inter se. It has no reference to the landlord. The landlord need not be made a party to the proceedings; the effect of an order for preemption is to substitute the pre-emptor in place of the old co-tenant, but the joint and several liability of the pre-emptor and the other co-tenants remain. Section 26F (2) and (7) merely adjust the rights of the co-tenants inter se. partition among co-tenants is binding among the co-tenants who join in the partition and is effective against the whole world except the landlord: see Dayamoyee v. Ananda Mohan 2 A.I.R. 1915 Cal. 242 Chandra Benode v. Ala Bux 8 A.I.R. 1921 Cal. 15 In my opinion, the partition of 1926 operated to sever the joint status of Murari and Kedar Nath. Hence their successors, viz., the petitioner and the opposite party could no longer be regarded as co-tenants, when the opposite party made the application for preemption. This view receives support from the following observation of Mitter A.C.J. in Amir Sardar v. Ismail Hossain Sardar : AIR1947Cal405 .
In my opinion the phrase 'co-sharer tenant' occurring in Section 26F means co-sharers in the tenancy.
22. The view taken by me is also supported by the decision of Chakravarty and Ellis JJ. in Goas Ali v. Lalmia. : AIR1948Cal27 . In the latter case, an unrecognized purchaser of a share in an occupancy holding before 1-4-1929 made a further purchase of another share of the holding whereupon an application for pre-emption was made by another co-sharer in the holding; this application was rejected by this Court on the ground that the purchaser was a co-sharer in the tenancy and was protected Under Section 26F (1)(a) of the Act. Chakravartti J. observed as follows at p. 94:
In view of the scope of the section, it appears to us that by the terras 'co-sharer in the tenancy' and 'co-sharer tenant' the Legislature meant persons who could claim to be regarded as co-sharers against the tenants.
23. The case in Dalil Bepari v. Radha Nath. : AIR1947Cal367 . on which reliance is placed on behalf of the opposite party deals with the question whether an unrecognized transferee of a share of a non-transferable occupancy holding has locus standi to make an application Under Section 26P of the Act and does not directly touch on the question now in controversy. I may add that on the point decided in the case last cited there is a divergence of opinion in this Court.
24. In the above views the second point must be answered in favour of the petitioner.
25. The second rejoinder concerns the effect of distribution of rent Under Section 88 of the Act. The Sub-section by its terms puts an end to the joint and several liability of the co-tenants from the date specified in the order. I agree with the view taken by Henderson J. in Nirmal Chandra Roy v. Jogendra Nath ('44) 49 C.W.N. 161 Where it was held that the effect was to disrupt the old tenancy and to create new tenancies. The Courts below have got round the above difficulty by holding that as the Official Receiver in whom the interest of the co-tenant Kedarnath had become vested, was not made a party, the order Under Section 88 of the Act had no legal effect. It is not clear on the materials on record whether the Official Receiver had paid rent or the landlord's fee and got recognition from the landlord and whether the petitioner after the sale by the Official Receiver in 1936 had paid rent or got recognition. The contrary state of facts would appear from Ex. 1. It is to be noted, however, that it was Murari predecessor-in-interest of the opposite party, who made the application for distribution of rent and it must be assumed that he made the proper persons parties to the proceeding. This contention must also be answered in favour of the petitioner.
26. The result, therefore, is that this rule must be made absolute, the orders of the Court below set aside and the application for preemption filed by the opposite party dismissed. The petitioner is entitled to his costs in all the Courts. Hearing fee in this Court being assessed at 2 gold mohurs.