1. The petitioner was an applicant for pre-emption under Section 26 F, Bengal Tenancy Act, in respect of portions of C.S. Plot No. 1257 of Khatian No. 108 and C.S. Plot No. 1250 of Khatian No. 679 purchased by the opposite party from the admitted co-sharers of the petitioner by a Kobala dated 30-6-1943. Of the two plots No. 1250 is described in the settlement khatians as pertaining to a mokarari holding and plot No. 1257 to an occupancy holding. It is admitted that there was a partition through the civil Court of the property of the co-sharers in 1941, that the co-sharers were given separate possession of demarcated portions of the property, in execution of the final decree, and that the plots or portions of the plots which form the subject-matter of the application under Section 26 F were allotted to the vendors of the opposite party. It further appears that there was a division of the jamas of the tenancies in July 1944, that is, after the sale but before the application for pre-emption which was presented on 2-2-1945. The application for pre-emption was contested by the opposite party, mainly on the ground that the petitioner was not co-sharer tenant in respect of the land included in the application and that the application was barred by limitation. The learned Munsif held in regard to the first contention that the petitioner was a co-sharer tenant, because there was no reliable evidence to show that the jamas had been divided, and that in any event the division took place after the date of purchase, and he held that the opposite party was estopped from showing that plot 1250 formed part of a mokarari holding because it was described as an occupancy raiyati holding in the Kabula. He held further that as, admittedly, no notice had been served on the petitioner under Section 26C, Bengal Tenancy Act, the evidence was insufficient to show that there was any bar of limitation. He allowed therefore the petitioner's application.
2. On appeal, this decision was reversed by the learned District Judge. In his view, the facts that the property had been partitioned between the co-sharers and that subsequent to the purchase by the opposite party the rent had been divided did not disentitle the petitioner to apply for pre-emption since he was a co-sharer at the time of the purchase. With regard to plot 1230, he however held that the rule of estoppel did not apply and that the opposite party was entitled to show the mokarari character of that holding. In his opinion the presumption of correctness of the Settlement Khatian in which the holding had been recorded as mokarari, had not been rebutted and consequently the petitioner was not entitled to pre-emption so far as plot 1250 was concerned. He concluded further from the evidence that the petitioner had not applied for pre-emption within a reasonable time from the date of his knowledge, because the application was made some 19 months thereafter and as it had been judicially determined that the reasonable time within which an application must be presented would be about 4 months, the application was barred by limitation in the entirety.
3. It was frankly stated by Mr. Chatterjee, who appeared for the petitioner, that he could not contest the accuracy of the decision in so far as it related to plot 1250, because of the mokarari character of the holding. In view, however, of the Special Bench decision in Asmatali v. Mujnharali : AIR1948Cal48 in which it has been held that 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 notice under Section 260 and his application would be in time if made within three years of the sale, it was claimed that the decision of the learned District Judge was erroneous that the application was barred by limitation. This claim was not contested by Mr. Mitter for the opposite party, but he urged two reasons why the application for pre-emption should be rejected. In the first place he contended that the petitioner was not a co-sharer tenant even at the date of sale and in the second place that even if he could be so considered, the application could not be entertained because he was not a co-sharer at the material time, viz, the time of its presentation. We propose to consider the second point first, because the acceptance of this contention will make it unnecessary to decide the first.
4. The relevant provisions of Section 26P are as follows:
(1) Except is the case of (a) a transfer to a co-sharer in the tenancy whose interest has accrued otherwise than by purchase ... one or more co-sharer tenants of the holding, a portion or share of which is transferred, may within four months of the service of notice under Section 26C, apply to the Court for the said portion to be transferred to himself or themselves.
5. Ramendra Nath v. Jitendra Nath : AIR1938Cal351 it was decided by Henderson J. that in a suit for pre-emption, the right of the plaintiff to get pre-emption must exist not only at the time of the sale, but also at the time of institution of the suit and finally up to the date of the decree. This view proceeded on the general principles accepted in relation to the Mahomedan Law of pre-emption, and followed the decision in Nuri Mian v. Ambica Singh 4 A.I.R. 1917 Cal. 716 and earlier decisions of the Allahabad High Court. These latter decisions are no direct authority for the disposal of the present matter, but we think the general principles are the same and we see no adequate reason for differing from the view of Henderson J. to which we have alluded above, in so far at least as it decides that the right of the plaintiff to get pre-emption must exist at the time of the institution of the suit, or, in other words, at the time of presenting his application for pre-emption under Section 26P, Bengal Tanancy Act.
6. There is no dispute that a right of preemption arises as soon as a co-sharer sells his share of the tenancy to a stranger purchaser, but it is clear that the essential requisite for the exercise of the right is that the co-sharer should be a co-sharer tenant, or to use the words of my learned brother Mitfcer J. in Amir Sardar v. Ismail Hossain Sardar : AIR1947Cal405 a 'co-sharer in the tenancy', and where a co-sharer has voluntarily agreed to or acquiesced in the sub-division of the tenancy so as to remove completely that element of jointness in the tenancy which the right of pre emption has been enacted to preserve, we think that right can no longer be exercised. In the present case, the petitioner and his co-sharers in the tenancy effected a partition of the holdings through the civil Court in 1941, long before the transfer of the demarcated portions of plots 1250 and 1257 to the opposite party, and the rent payable on account of their demarcated shares was amicably apportioned between them. In addition, there was in 1944 a division of the jamas of the holdings, and thereafter the petitioner ceased in any event to be a co-sharer in the tenancy, so far as the property transferred to the opposite party is concerned. It was contended by Mr. Chatterji for the petitioner that there was no valid sub-division of the tenancy as contemplated by Section 88, Bengal Tenancy Act. We cannot accept this contention; the rent receipts which have been proved in the case indicate sufficiently that the entire body of landlords accepted the apportionment of rent to which the petitioner and his co-sharers had already agreed and that the petitioner acquiesced in the division of the rent. By this division, he was relieved from liability for payment of rent on account of the demarcated portions of the plots for which pre-emption has been sought, and he ceased to be a tenant therefor within the meaning of Section 3 (16), Bengal Tenancy Act. Clearly, therefore, he was not a co-sharer tenant at the time of presentation of the application for pre-emption in February 1915 and he had therefore no locus standi to present it. In this view of the matter, it follows that the application for pre-emption must be rejected, and it will not therefore be necessary to decide the further question whether the petitioner would have been entitled to present his application after the transfer to the opposite party and before the jama was sub-divided.
7. The result is that this rule must be discharged, with costs for the opposite party, hearing fee one gold mohur.
R.C. Mitter, J.
8. I agree.