1. This Rule was obtained by the objectrix in a proceeding under Section 26F, Bengal Tenancy Act. The admitted facts of the case are as follows: Three brothers named Nathu, Atul & Satish held a two annas share in a certain occupancy folding. Natu along with some o er co-sharer.' of the holding sold the land in dispute in the pr.sent proceeding to the present petitioner, Radharaut Dassi, on 5-7-1944. On 28-3-1949, the present application for pre-emption under Section 26F was filed by Atul & Satish alleging that the two applicant; for pre-emption used to reside in their maternal uncle's house after the death of their father & faking advantage of their absence from their ancestral homestead Natu, in collusion with other co-sharers, sold the disputed land to the present petitioner & that on account of a collusion between the vendors & the purchaser, the applicants Atul & Satish were kept from the knowledge of the sale & that they came to know of the sale for the first time on 2-1-1949.
2. The application for pre-emption was resisted by the present petitioner 'inter alia' on the ground that it was barred by limitation as it was filed more than three iyears from the date of the sale. It is admitted in the present case that no notice of the sale was served upon the applicants for pre-emption & therefore under the Special Bench decision of this Court in the case of 'Asmat Ali v. Majahar Ali', 52 C. W. N. 64, the period of limitation would be three years under Article 181, Limitation Act. The present application, however, was filed more than three years from the date of sale.
3. Both the Courts below decided the question of limitation in favour of the applicants for preemption on the ground that the applicants for preemption were minors on the date of sale & that the application for pre-emption had been filed three years from the date of attainment of majority by the applicants. The running of limitation is suspended under Section 6, Limitation Act, in the case of persons suffering from legal disability but that section applies only to persons entitled to institute a suit or make an application for the execution of a decree. An application for pre-emption under Section 26P, Bengal Tenancy Act, is either a suit nor an application for execution of a decree & therefore the running of limitation in a case like the present one cannot be suspended under the provisions of Section 6, Limitation Act. The view taken by the Courts below to the effect that the application cannot be held to be barred by limitation because it was filed within three years from the attainment of majority by the applicants cannot therefore be accepted as correct.
4. The Court of appeal below has come to a finding to the effect that the petitioners were aware of the sale. As I have already pointed out, in the application for pre-emption, the opposite party to the present Rule made a case to the effect that they were kept from the knowledge of the sale by the fraud of the vendors & purchaser & that they came to Low of the sale for His first time on 2-1-1949. This is clearly a case made under Section 18, Limitation Act. The finding which has been arrived at by the Court of appeal below is not in my opinion, sufficient for the disposal of the appeal. If the applicants for preemption came to know of the sale on 2-1-1949, as alleged in their application for pre-emption, they would be certainly within three years from the date of their knowledge & the application for pre-emption will not be barred by limitation. But if the case made in the application for pre-emption to the effect that the applicants were kept from the knowledge of the sale by the fraud of the vendors & the purchaser fails, the period of limitation will run from the date of the sale, that is to say, from 5-7-1944 & in that event the application must be held to be barred by limitation.
5. In the result, this Rule is made absolute. The decision of the Court of appeal below is set aside & the case is sent back to the lower appellate Court for re-hearing on the question whether the applicants for pre-emption were really kept from the knowledge of the sale as alleged in the application for pre-emption. If upon a consideration of the evidence already on the record the Court of appeal below comes to the conclusion that the applicants for pre-emption came to know of the sale within three years from 28-3-1949 on which date the application for pre-emption was filed, the application for pre-emption will be allowed; but if it comes to the conclusion that the applicants for pre-emption were not kept from the knowledge of the sale by the fraud of the vendors & purchaser, Section 18, Limitation Act will not apply & the application for pre-emption must be dismissed as barred by limitation. There will be no order for costs of the hearing of this Rule in this Court. Future costs will abide the result.