K.C. Chunder, J.
1. This rule was issued at the instance of a purchaser of a part of a holding against whom an order for pre- emption had been made on the application of a co-sharer tenant of the holding.
2. The facts are not in dispute except as to whether there was a partition or not. The facts briefly are that three sets of tenants were amongst themselves separately possessing the lands of the holding. The District Judge has held that there was a partition and he has relied upon an admission made in the sale deed which is the title deed of the pre-empting co-sharer tenant. The position was accepted by the District Judge namely that there was a partition of the lands of the holding. It must be said that the holding has not been split up Under Section 88 of the Bengal Tenancy Act and there has not arisen separate holdings. All the tenants remain co-sharer tenants of the holding. Section 26P, Bengal Tenancy Act, gives a right to co-sharers tenants of a holding the right to pre-empt in case one of such co-sharer tenants of the holding sells his share of the land. Against this, a decision of Mr. Justice G.N. Das sitting singly in the case of Debendra Nath v. Ganendra Nath : AIR1948Cal353 has been relied upon by Mr. Chakravarty for the petitioners. The learned District Judge rightly pointed out that in Mr. Justice Das's case there was a split up of the holding and creation of separate tenancies Under Section 88, Bengal Tenancy Act. Therefore the decision of Mr. Justice Das as far as it went was a correct decision on the facts of that case. In that case Mr. Justice Das is taken by Mr. Chakravarty to have proceeded upon the ground that Section 26F, Bengal Tenancy Act, will not apply in case the lands of the different co-sharers have been subdivided among themselves without the holding itself being split up. It may be pointed out that if such was in reality the decision of Mr. Justice Das, the decision is not in our opinion correct.
3. The section definitely gives the right of preemption to a co-sharer tenant so long as the tenancy in the holding remains a joint one. No-thing will be gained by speculating upon the object of the section. The object may not only have been to prevent outsiders coming into the property but also outsiders sharing the rights and liabilities of joint tenants or tenants in common. The section clearly says that a co-sharer tenant in a holding has the right of pre-emption. We fail to see how without the status of a co-sharer tenant being lost the right to pre-empt can be lost. There is a distinction in law between a co-sharer in a property and a co-sharer in a tenancy. To take a hypothetical case if the present owners of the property had been Mahomedans, then under the Muhammadan Law as co-sharers in the property they would have a right of pre-emption and a right which will be lost if the property is divided whether the tenancy remained a common one or not. But in the present case the law does not deal merely with property under joint ownership but tenancy of a holding held in common by several persons. Therefore so long as he does not either cease to be a tenant or the holding does not cease to be the holding of them all, the right of pre-emption still exists as shown by the clear words of the section. It is clear that Mr. Justice Das had not the section before him because as in quoting the section he was speaking of 'co-sharers of the holding'. Co-sharers in a holding and co-sharer tenants in a holding may not always be the same. In any case in view of the fact that the right is given to co-sharer tenants in a holding and as in spite of the partition of the property they remained co-sharer tenants in the holding, we consider that the District Judge rightly gave effect to the right of pre-emption of the opposite party. The rule is accordingly discharged with costs.
4. I agree.