1. This Rule has raised a somewhat interesting point, but I think it ought to be decided in accordance with authority which is all one way.
2. The facts are these: A particular holding was sold in execution of a rent decree on 19-4-1945, and purchased by one Jyoti Prasad Mitra. Jyoti Prasad in his turn sold 15-1/2 acres of the larfd on 2-1-1950, to the petitioner. The kobala was executed on that date. On 27-3-1950, one Rajabala who is opposite party No. 1 to this .Rule purchased 32 acres of land from Jyoti Prasad, but this area did not cover, nor was it a part of the areas previously sold to the petitioner. The petitioner's kobala was presented for registrationon 30-3-1950, when certain preliminaries were completed, but the actual registration did not take place on that date. On the next day, that is to say, 31-3-1950, Rajabala's kobala was registered. The petitioner's kobala came to be registered only on 10-6-1950. It is said that no notice under Section 26-C of the Bengal Tenancy Act was issued or served in respect of the sale to Rajabala, but the petitioner came to know of the sale on 16-4-1951. Thereafter on 4-6-1951, he made an application for pre-emption out of which the present Rule hasarisen.
3. It will be seen from what I have stated that the petitioner's kobala was earlier in point of time, but it was registered later than Rajatala's kobala. It was argued on behalf of the petitioner before the courts below that since, under Section 47, Registration Act, a registered document would operate from the time from which it would have commenced to operate if no registration had foeen required, that Is to say, from the date ofexecution, the petitioner was entitled to pre-empt the land, since his kobala, although registered on 10-6-1950, would operate from 2-1-1950, and therefore, would operate from a date earlier than the date of the execution of Rajabala's kobala. If so, he would be already a co-sharer before Rajabala's purchase was completed. The courts below have repelled that contention in the view 'that while, as between the purchaser and the vendor an instrument of transfer would take eject from the date of its execution and not from the date of registration, the position was different as against third parties. As against third parties, an instrument of transfer, if required to be registered by law, would operate only from the date of registration.
4. The question to be decided in the Rule is which of these two views is correct. The learned Advocate for the Petitioner has drawn our attention to a series of cases on Section 47, Registration Act which undoubtedly lay down what the section itself says, namely, that a document remittable under the law takes effect upon registration from the date of its execution. Particular reliance was placed upon the decision of the Judicial Committee in the case of 'Kalyanasundaram Pillai v. Karuppa Mooppanar' , where dealing with a case of a gift, their Lordships observed that:
'While registration is a necessary solemnity in order to the enforcement of a gift of immovable property, it does not suspend the gift until registration actually takes place.'
Founding upon that case, the learned Advocate for the petitioner contended that, equally, upon the execution of the deed of transfer in his' client's favour, the transfer would not remain suspended till the document was registered but would take effect from the date of its execution, even against third parties to whom another property might have been sold by the transferor and whose document might have been registered earlier.
5. It appears, however, from the decided cases that Section 47, Registration Act has been construed as limited to successive transfers of the same property. Where different properties have been transferred by different instruments or where the contest is with a third party, the decisions have been in accordance with the plain meaning of Section 49, Registration Act, or the relevant section of the Transfer of Property Act. Those decisions proceed on the view that where title to immovable property cannot be affected except by a registered instrument, an instrument purporting to affect title can only operate when registration has been completed and therefore when there is a competition between two documents executed on different dates but concerning different properties, each should be taken as taking effect from the date of its registration. Decisions which have taken this view are the cases of 'Gobardhan Bar v. Gunadhar Bar' : AIR1941Cal78 and 'Naresh Chandra v. Girish Chandra' : AIR1936Cal17 . In fact the former followed the latter. The case in : AIR1936Cal17 is in its own turn based, so far as this point is concerned, upon a decision of the Madras High Court in the case of 'Veerappa Chetty v. Kadiresan Chetty' 24 Mad LJ 664 (D).
6. I confess that the question is not free from difficulty. If Section 47, Registration Act is treated as limited to successive transfers of the same property, the difficulty undoubtedly disappears but the language of the section is sufficiently wide to cover transfers of different properties as well. Again, if the principle of the section is to applyas between the vendor and the vendee, there must be some good reason as to why it should not apply as against third parties. I invited the learned. Advocates to furnish the reason, but they were unable either to find it in the reported cases or to supply it themselves. The difficulty to my mind remains unsolved.
7. So far, however, as the present case is concerned which is a case under Section 26-F, Bengal Tenancy Act, I think there is a special fact which justifies the view that a person claiming to preempt on the basis of himself having become a co-sharer by a recent purchase, can do so only after his own document has been registered. To take the facts of the present case. Rajabala's kobala was registered on 31-3-1950. Under Section 26-F, Bengal Tenancy Act, the right of the co-sharers to pre-empt arose on that day and, therefore, if I may put it in another way, all persons claiming to be entitled to pre-empt would have to be co-sharers on that day and not later- The petitioner's kobala was not registered till 10-6-1950. Were we to apply the principle of Section 47 to this case, the result would be that upon its registration on 10-6-1950, the petitioner's kobala would operate from 2-1-1950 and therefore, the petitioner would become a co-sharer with effect from that date. But that status would arise only after the registration, that is to say, only after 10-6-1950 though with retrospective effect. Between 31-3-1950 when Rajabala's kobala was registered and 10-6-1950 when his own was, the petitioner would have no right to pre-empt. This position obviously cannot be reconciled with the right of the co-sharers to pre-empt arising on 31-3-1950, when it must be held to have arisen; see the case of Debendra Nath Sen v. Ganendra Nath Bera', : AIR1948Cal353 .
8. It thus appears to me that on the authorities and on the special facts of this case, though I cannot say on principle, the respective kobalas should be held to have taken effect from their respective dates of registration. If so, the view taken by the courts below is obviously the correct view.
9. The Rule is accordingly discharged, but in view of the difficulty of the point, we do not make any order for costs.
10. I agree.