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Sashi Bhusan Singha Vs. Sankar Mahato - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata High Court
Decided On
Case NumberCivil Rule No. 1660 of 1949
Judge
Reported inAIR1950Cal252,54CWN936
ActsBengal Tenancy Act, 1885 - Section 26F and 26F(1); ;Bengal Agricultural Debtors Act, 1936 - Section 28
AppellantSashi Bhusan Singha
RespondentSankar Mahato
Appellant AdvocateRajendra Bhusan Bakski and ;Ashutosh Ganguli, Advs.
Respondent AdvocatePurna Chandra Basu, Adv.
Cases ReferredChandra Binode Kundu v. Ala Bux
Excerpt:
- .....the landlord is to register the names of all the transferees.10. further, in sub-section (6) the word 'transfer' is interpreted; and for section 26c 'transfer' does not include partition or a lease, or, until a decree or order absolute for the foreclosure is made, simple or usufructuary mortgage or mortgage by conditional sale. this limitation taken along with the very wide use of the term 'transfer' as appearing in sub-section (1) of section 26c indicates the purpose for which notice is to be issued, and the right of preemption given under section 26f is to be exercised.11. it is, no doubt, true that a particular word may be used in different senses over the different parts of the act, but the ordinary rule is that unless something specially appears from the section itself, the same.....
Judgment:

R.P. Mookerjee, J.

1. This is an application in revision against the orders passed by the lower Courts allowing an application under Section 26F, Bengal Tenancy Act.

2. The opposite party made an application on 17th September 1948 under Section 26F, Bengal Tenancy Act on the allegation that he was a cosharer with one Kshirode Das in respect of an occupancy holding which had been sold on 22nd March 1947 under the provisions of the Public Demands Recovery Act. Sasi Bhusan Singha, the petitioner before this Court, was a creditor of Kshirode Das and had obtained an award under the provisions of the Bengal Agricultural Debtors Act. The payments directed to be made under the award not having been made within the due dates steps were taken by the creditor under Section 28, Bengal Agricultural Debtors Act. The certificate sale which followed was confirmed on 23rd May 1947 but the opposite party alleged that he had no knowledge of the sale before 9th September 1948. The application for pre-emption under Section 26-F, Bengal Tenancy Act was filed on 17th September 1948.

3. Various objections were raised by the decree-holder auction purchaser, Sasi Bhusan Singha. It is not necessary for our present purpose to refer to all the different objections as only one of those has been urged before us. It is argued that the sale had taken place under Section 28, Bengal Agricultural Debtors Act, and the provisions of Section 26 F, Bengal Tenancy Act are not attracted in the case of involuntary sales. This objection had been disallowed by the Courts below.

4. Section 26 F, Bengal Tenancy Act provides that subject to exceptions mentioned in Sub-section (1) of that section

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

It is contended that all the exceptions as appearing in clauses (a) to (e) refer to voluntary transfers. There is no indication that the transfer referred to in this sub-section includes an involuntary transfer. It is further contended that the reference to Section 26-C in Sub-section (1) is only for the purpose of attracting such cases where a notice is to be given under Section 26 C of the Act, Section 26C does not control Section 26F.

5. In our view, such a restricted interpretation of Section 26F is not warranted. Reference may be made in this connection to the other parts of Section 26F and also to the provisions contained in Section 260 of the Act. Before we refer to the provisions contained in Section 26-G it may be noticed that in Sub-section (11) of Section 26F, it is provided:

'In this section 'transfer' does not include simple or usufructuary mortgage or mortgage by conditional sale until a decree or order absolute for foreclosure is made.'

If it were the intention of the Legislature to restrict the term 'transfer' only to cases of voluntary sales, there would have been no necessity of excluding simple or usufructuary mortgage or mortgage by conditional sale until a decree or order absolute for foreclosure is made. Let us take the case of a mortgage by conditional sale. Title passes on the final decree for foreclosure being passed. If the passing of such a decree for foreclosure is deemed to be a transfer under Section 26F, it is difficult to support the contention that only voluntary transfers were taken into consideration in this section. If a transfer which takes place on the passing of a decree absolute for foreclosure is not saved under Sub-section (11) of Section 26F, it cannot be contended that transfers by involving sales were not provided for in this section.

5a. This interpretation is, however, further supported if reference is made to the provisions contained in Section 26-C of the Act. In Sub-section (1) of Section 26-F, reference is made to Section 26-C, no doubt, for the purpose of determining the period within which an application for the exercise of the right of pre-emption is to be filed. But if reference is made to some of the provisions contained in Section 26-C of the Act, it will be patent that this latter section has to be read along with Section 26-F.

6. The opening words in Sub-section (1) of s. 26C refer to 'every transfer' and the exceptions made to such transfers as

'in the case of a bequest or a sale in execution of a decree or of a certificate signed under the Bengal Public Demands Recovery Act, 1913'

unmistakably indicate that the term 'transfer' as used in this subjection is in the widest sense. The transfer referred to includes not only a sale effected by acts of parties, but also those effected through Court.

7. The service of notice is made incumbent in the case of all transfers as provided for in the different sub-sections following Sub-section (1). Sub-section (1) provides for the service of the notice of the transfer at the time when the document is registered under the Registration Act. Sub-section (2) provides for cases where title passes by a bequest, and no probate is to be granted or letters of administration issued until steps are taken for the service of notice of such a transfer. The notice in this case, however, is limited to a notice to the landlord and not to the other co-sharers.

8. Sub section (3) provides that a Court or Re-venue Officer shall not confirm a sale of either the entire or portion of a holding until the purchaser or the mortgagee files copy of a notice to be served and takes other steps as required under Sub-section (1).

9. Sub-section (4) specifically provides in respect of cases where a portion or a share of an occupancy holding is transferred and is in the following terms:

'If the transfer of a portion or share of such a holding be one to which the provisions of Sub-section (1) of Section 26F apply, there shall be filed notices giving particulars of the transfer in the prescribed form together with process fees prescribed for the service thereof on all the co sharer tenants of the said holding who are not parties to the transfer.'

It will be noticed that Sub-section (4) is made applicable only in such cases where the provisions of Sub-section (1) of Section 26P are attracted. Notices to the co-sharers must be given under Sub-section (4). Taken along with Sub-section (5) the-duty is cast upon the Court or the Revenue Officer or the Registering authority, as the case may be; and the duty of the landlord is to register the names of all the transferees.

10. Further, in Sub-section (6) the word 'transfer' is interpreted; and for Section 26C 'transfer' does not include partition or a lease, or, until a decree or order absolute for the foreclosure is made, simple or usufructuary mortgage or mortgage by conditional sale. This limitation taken along with the very wide use of the term 'transfer' as appearing in Sub-section (1) of Section 26C indicates the purpose for which notice is to be issued, and the right of preemption given under Section 26F is to be exercised.

11. It is, no doubt, true that a particular word may be used in different senses over the different parts of the Act, but the ordinary rule is that unless something specially appears from the section itself, the same meaning is implied by the use of the same expression in every part of an Act. In ascertaining the meaning to be attached to a particular word in a section of an Act, the proper course would be, in the first instance, to ascertain what meaning is possible from a consideration of the section itself. If a particular section unmistakably shows a special meaning to be attached to a particular word, it is not open to refer to other portions of the Act to interpret that word in a different meaning. If, however, a clear meaning cannot be ascertained from the section itself, other sections may be looked at to fix the sense in which the word is there used. See the observations of Jessel M. R. in Spencer v. Metropolitan Board of Works, (1882) 22 Ch. D. 142 : (52 L. J. Ch. 249).

12. It is not, however, overlooked that the same word may be used in different senses in the same statute, and care has to be taken to find out whether any special meaning is to be given to any particular word in any particular section.

13. As indicated already in Section 26F of the Act, there is no indication that the word 'transfer' is used in any restricted sense. It is used in the general and ordinary sense, and if any assistance can be obtained from Sub-section (11) the only conclusion that can be drawn is that the intention of the Legislature was not to limit the scope of the word 'transfer' in any particular manner. If without reference to any other section in the Act the interpretation of the word 'transfer' is to be based, we think that it is the wider meaning and not any restricted one which can be put upon the word 'transfer.'

14. If there had been any doubt about the scope of the word 'transfer' in Section 26F such doubt is dispelled if we refer to the provisions contained in Section 26C. Although it cannot be strictly stated that Section 26C controls Section 26F, the two sections have to be read together at least for certain purposes as the service of notice provided for in Section 26C gives the cause of action for making an application under Section 26F. We do not overlook the fact that even when a notice has not been served, it is open to a co-sharer to take advantage of the transfer and to make an application for enforcement of the right as laid down in Section 26F within three years from the date of sale. Article 181, Limitation Act has been held to be attracted in such a case. See Asmat Ali v. Mujahar Ali : AIR1948Cal48 . The cause of action, therefore, which gives rise to the exercise of the right under Section 26F, Bengal Tenancy Act is not merely the service of notice, but the transfer of a portion of the occupancy holding. The different kinds of transfer which are referred to in Section 26C subject to the exceptions as contained in Section 26F have to be taken note of.

15. There is no doubt in our mind that Section 260 as it now stands, includes all kinds of transfer. Further, when in Sub-section (1) of Section 26F certain exceptions are being indicated in cls. (a) to (e), such exceptions must be taken to be exceptions to the general connotation of the term 'transfer.'

16. The word 'transfer' means the passage of a right from one individual to another. Such transfer may take place in one of three different ways. It may be by virtue of an act done by a transferor with an intention, as in the case of a conveyance or a gift, or, secondly, it may be by operation of law, as in the case of forfeiture, bankruptcy, intestacy, etc. Or thirdly, it may be an involuntary transfer effected through Court, as in execution of a decree for either enforcing a mortgage, or for recovery of money due under a simple money decree. The word 'transfer' in its ordinary sense would include all these different kinds of transfer. Reference may in this connection be made to the ordinary dictionary meaning as appearing in Murray's Oxford Dictionary, vol. II, p. 257 : 'to convey or make over title, right or property by deed or legal process.' Reliance, however, was placed by the learned Advocate for the petitioner on the meaning of the word 'transfer' as appearing elsewhere in the same dictionary--'conveyance from one person to another of property.' In the latter place, there is no indication as to how the transfer takes place; there is change of title from one to another but the method adopted is not indicated. Making over or transferring the right which is in one to another may take place as indicated already in one of the three different ways.

17. In the absence of any words of limitation, a word is to be interpreted in the ordinary dictionary meaning. Even if there was any doubt about the ordinary meaning, from such indications as have been noticed and as appear in Sub-section (11) of Section 26F, and the connotation of the term as appearing in Section 26C we would have held that the limited interpretation attempted to be put on that word 'transfer' in Section 26F is not justified.

18. In this connection, reference may also be made to the observations made by the Full Bench in Dayamayi v. Ananda Mohan, 42 Cal. 172 : (A. I. R. (2) 1915 cal. 242) and the decision of the Special Bench in Chandra Binode Kundu v. Ala Bux, 48 Cal. 184:(A. I. R. (8) 1921 cal. 15). It will be remembered that while formulating the different propositions of law, the Full Bench laid down certain principles when dealing with the question of the transferability of an occupancy holding. Transfers, whether voluntary or involuntary, were both taken into consideration. Particularly in the judgment of Mookerjee A. C. J., in the Special Bench case referred to above, the first proposition, as stated by the Full Bench, was modified and the difference between voluntary and in-voluntary sales was fully considered; it was laid down that involuntary alienation stood on the same footing as the question of voluntary alienation, and that no differentiation had been made, as detailed in the historical analysis of the case law on the point, between voluntary and involuntary sales. The Bengal Tenancy Act does not provide in the sections referred to any difference between voluntary and involuntary sales. It will not be proper to introduce such a differentiation in Section 26F of the Act unless such differentiation is clearly indicated in the section itself, and there is no such indication.

19. This Rule is accordingly discharged. There will be no order for costs in this Court.

Lahiri, J.

I agree.


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