1. This is a petition for revision of an order of a lower appellate ct. allowing an appeal in fact from an order of a learned Munsif who allowed in fact the petitioners' applications for pre-emption under Section 26F, Bengal Tenancy Act.
2. The facts in the case are somewhat complicated. But the relevant facts can be stated as follows. In the year 1935 the property in dispute was attached before judgment by the pltf. in a suit. On 29-5-1936 the suit ended in a compromise decree. But as the defts. failed to carry out the compromise an application was made in 1937 for execution of the decree. Shortly after this application the defts. applied to the Debt Settlement Board for a settlement of the debts owed by them to the pltf. among others. The usual order was made under Section 34, Bengal Agricultural Debtors Act, staying all proceedings in respect of debts pending in civil cts. The application for execution therefore of the compromise decree was stayed. On 10-6-1939, the parties arrived at a compromise of the matter pending before the Debt Settlement Board & it was agreed that the defts. should convey to the pltf. certain properties during the month of Assar, 1346, in discharge of all their Indebtedness to the pltf. On June 18 an award was made by the Debt Settlement Board embodying these terms & on 15-9-1939, this award was registered.
3. It is clear that the award brought to an end the proceedings before the Debt Settlement Board & the debt which was the subject-matter of the earlier suit & which was the subject-matter of the proceedings was settled on the terms of this award. It is quite clear, I think, that after this award there was no debt existing between the defts & the pltf. & that there was nothing to execute. The Pltf's. rights thereafter were governed by the award of the Debt Settlement Board which embodied the agreement entered into between the parties.
4. The defts. failed to transfer the properties as agreed upon before the Debt Settlement Board & eventually the pltf. had to bring a suit for specific performance of this agreement. That suit was ultimately decreed, but the defts. refused to execute any document of transfer. On 23-9-1946, the Ct. on behalf of the defts. executed a deed of sale or conveyance of the property in dispute in favour of the pltf. & this document was registered on 26-3-1947. There was a transfer by this deed of sale of certain property & two co-sharers brought proceedings to pre-empt this sale. One application was allowed by the learned Munsif & the other dismissed. The learned Subordinate Judge affirmed the decision allowing the application of one applicant & reversed the learned Munsif with regard to the decision on the other application & allowed it in part.
5. The purchaser who was the pltf. in the original proceeding has now preferred this revision & on his behalf Mr. Sitaram Banerjee has taken a number of points. In the first place he contended that Section 26F, Bengal Tenancy Act would not apply to this case at all because the conveyance here was conveyance by the Ct. & not by a co-sharer. It is true that in this case the conveyance or deed of sale was executed by the Ct. merely because the defts. had refused to carry out a decree for specific performance. The Ct. executed the transfer not as owners of the property as obviously the Ct. had no title at all. The Ct. merely executed this transfer as an agent as it were of the deft. & the transfer is in fact & in law a transfer by the deft. who was a co-sharer. That being so there is no substance in this contention.
6. Mr. Banerjee then argued that one of the claimants for pre-emption was not a co-sharer at the date of the sale sought to be pre-empted, by reason of the fast that that applicant based his claim to pre-empt on a sale in his favour which Mr. Banerjee contends was . void. This applicant claimed to be a co-sharer by reason of sales in 1941 & 1944 & Mr. Banerjee contends that both these sales were void by reason of the fact that an attachment existed on the property at the date of these sales. As I have already stated the property in question was attached before judgment in 1935, but it seems to me that that attachment came to an end certainly on 15-9-1939 when, the award of the Debt Settlement Board was registered. That award put an end to the whole of the litigation & discharged any right which the pltf. had against the deft. & which had led to the attachment before judgment. There had been an attachment before judgment & a decree & an application to execute the decree. Then came the Debt Settlement Board proceedings which resulted in the execution application being stayed. Up to that stage the attachment subsisted. But eventually the parties settled their differences & the deft. agreed to transfer certain property to the pltf. in full discharge of his indebtedness. Prom that moment the pltf. had no claim against the deft. upon which an attachment before judgment could be based & this agreement incorporated in a registered award of the Board created entirely new rights between the parties. The old rights were extinguished & so was the attachment before judgment. That being so there was no attachment in existence either in 1941 or 1944 & the applicant's title to pre-empt could not be said to be affected by reason of this attachment.
7. Lastly, Mr. Banerjee contended that the applications were barred by limitation. It is clear that the point of limitation was never taken before the learned Munsif or the lower appellate ct. But if it is clear on the face of the record that the applications were barred by limitation, I am bound by reason of Section 3, Limitation Act to give effect to limitation.
8. The document was executed, as I have said, on 23-9-1946, & the applications for pre-emption were made on 11-11-1949 more than three years from the date of sale. Of course there was no notice given to the co-sharers of this sale & Mr. Banerjee contends that any claim to pre-empt this sale was barred by limitation after the expiry of three years from the date of sale. He relies upon a Special Bench decision of this ct. in 'Asmatali Sharip v. Mujaharali Sardar', (52 C. W. N. 64), In which it was held that the right of pre-emption given to a co-sharer tenant by Section 26F Bengal Tenancy Act is not dependent on a notice being served on him under Section 26C. The right is given to all co-sharer tenants irrespective of whether they are served with a notice or not & the right accrues as soon as a transfer is made. The procedure for a co-sharer tenant who has not been served with a notice to avail himself of the right is by way of an application as contemplated under Section 26F. Article 181, Limitation Act, applies to the case of an application under Section 26F by a co-sharer tenant who has not been served with a notice under Section 26C & his application would be in time if made within three years of the sale.
9. Mr. Banerjee's contention is that the application was made more than three years from the date of sale, & if the date of sale be 23-9-1946, that is, the date upon which the document was executed by the Ct., the application was beyond three years.
10. Mr. Janah on behalf of the opposite party has however contended that in cases of pre-emption the relevant date is not the date of the conveyance or transfer of the property but the date of registration. The property sought to be pre-empted can only be transferred by a registered instrument by reason of the provisions of the Bengal Tenancy Act. A mere execution of a deed of transfer would not give a co-sharer a right to pre-empt. His right to pre-empt would only arise when there had been an effective transfer, that is when the deed of sale had been registered. Normally registration dates back & makes the sale effective from the date of the execution of the document. Mr. Banerjee therefore argues that though these sales have to be registered, once they are registered the date of sale for the purposes of limitation must be the date of the execution of the document.
11. If Mr. Banerjee were right a somewhat unfortunate result would follow. Pour months are given for execution of documents such as deeds of sale. If a deed of sale was executed but not registered for four months no proceedings could be brought for pre-emption within those four months, because there would be no effective transfer giving rise to a right to pre-empt. However, if the moment the document was registered the sale became an effective sale from the date of execution of the document, then time would begin to run from the execution of the document though for four months of that period the co-sharer seeking to preempt would have no right whatsoever to pre-empt. That being so, the period of three years laid down by the Pull Bench might well be cut down to two years & eight months by reason of days in registering documents.
12. It appears to me that this Ct. has laid down that the starting point for limitation in the case of pre-emption is not the date upon which the document is executed, but rather the date upon which it is registered. In short this Ct. has held that there is no effective sale for the purposes of pre-emption until registration.
13. The matter was considered by a Bench of this Ct. in the case of 'Gobardhan Bar' v. 'Gunadhar Bar', (44 C. W. N. 802). In that case property had been sold before the Act of 1938 amending the Bengal Tenancy Act came into force. The deed of sale was not registered however until the Amending Act came into force & the question arose whether the old Act as amended in 1938 applied to the transaction. The Bench held that the Amending Act of 1938 was not retrospective & therefore could not be construed as applying to any transactions which took place before the Act was passed & further the Amending Act could not be held to take away any rights which had accrued to parties before it was passed. The Bench nevertheless held that the Amending Act of 1938 applied to the case because though the sale deed was executed before the Amending Act was passed, it was not registered until after the passing of the Act & that there was no effective sale for the purposes of pre-emption until after the Act was passed. That being so it could not, be said that the pre-emptor had any rights before the Amending Act was passed & there was no question of taking away accrued rights. At p. 804 Mukherjee J. who delivered the judgment of the Bench observed :
'I am inclined to hold that the date of registration is the material date & both under the old Act as well as under the new, no right could possibly accrue in favour of the landlord or the co-sharer tenants as the case may be, until the document of transfer was registered.
A transfer of occupancy holding can be made only by a registered document & no title would pass to the transferee unless registration is effected. ...... Not only there was no valid or complete transfer till the document was registered, but so long as it was not registered, the landlord's right to apply for pre-emption did not arise. If, therefore, the document was not presented for registration till after the expiry of the old Act, there was no accrued right in favour of the landlord which could be said to have been saved by the repealing enactment. Then again, as in the present case, if the document is registered after the new Act came into force, the provision of the new Section 26C would certainly be attracted to it.'
It seems to me clear that in this case the Bench held that a co-sharer or a landlord had no right to pre-empt until the deed of sale had been registered. Limitation is a period during which a person who can sue must sue or be barred for his delay. Limitation cannot begin to run before a person has a right to sue or to take proceedings. Therefore it is clear that in cases where no notice of a transfer is given there can be no right to claim pre-emption until registration. If it be held that the period of limitation begins to run from the date of the execution of the deed of sale, then it is tantamount to holding that the period of limitation begins to run before a co-sharer has a right to pre-empt.
14. A similar view was taken by Das J. in the case of 'Debendra Nath Sen' v. 'Ganendra Nath Bera', '53 C. W. N. 107. The learned Judge held that the date of accrual of the right of pre-emption 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 & title effectively passes.
15. It is to be observed that both Mukherjee & Das JJ. were members of the Special Bench & I think I can safely presume that they never intended the decision of the Special Bench to be in conflict with their other decisions. If the decision of the Special Bench be taken literally it might be argued that it was held that limitation would be three years from the date of sale, that is, the actual date of the execution of the deed of sale which was afterwards registered. However, having regard to the other cases, I think it is clear that what the Special Bench meant by limitation running from the sale was that the period of limitation would begin to run when the sale for the purposes of pre-emption was effecting & as I have said both Mukherjee & Das JJ. have taken the view that for the purposes of pre-emption there is no effective sale until registration. Until registration a co sharer would not have a right to present an appln. for pre-emption & it appears to me that I am bound to hold that the period of limitation for such an appln. could not begin to run until the right to make the appln. accrued. That right in this case accrued not when the Ct. executed the deed of sale on behalf of the deft., but when the deed was registered in March of 1947. The appln. was brought well within three years of the date of registration & therefore the appln. was within time & the lower appellate Ct. was entitled to make the order which it did.
16. The lower appellate Ct. allowed pre-emption by two co-sharers. One co-sharer claimed that he was a co-sharer in respect of lands obtained by an exchange in 1928 & in respect of land purchased by him later but before the transaction sought to be pre-empted. The lower appellate Ct. was not satisfied that the exchange had been established & only allowed pre-emption in respect of the land purchased. This particular appct. who is a resp. in these proceedings has not challenged the order of the lower appellate Ct. by way of revision, but he seeks to challenge it as a resp. A resp. may uphold the decision of the lower Ct. on ground other than the grounds upon which the lower Ct. decided the case. But a resp. without giving notice to the other parties cannot claim to challenge a decision merely because he has been made a resp. in the proceeding. I do not think it is open to this resp. to challenge the findings of the lower appellate Ct. & therefore the finding of that Ct. that this resp. could only claim to be a co-sharer to the extent of the lands purchased must be upheld.
17. For these reasons I can see no ground for interfering with the decision of the lower appellate Ct. & accordingly the petn. fails & is dismissed with costs to opposite party No. 1. The Rule is discharged.