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Sonamaddi and anr. Vs. Pramada Sundari Sarkar and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1937Cal746,173Ind.Cas.481
AppellantSonamaddi and anr.
RespondentPramada Sundari Sarkar and ors.
Cases ReferredKhosal Chandra v. Upendra Nath
Excerpt:
- .....pre-emption for themselves and urging that in any case the petitioners could only pre-empt 4 annas share of the holding. the trial court rejected the defence pleas and allowed the pre-emption.2. it has been strenuously urged by the learned advocate for the petitioners that the opposite party are not entitled to preempt more than 4 annas inasmuch as the transferees are the owners of 12 annas share of the superior tenure. this question does not appear to have been decided in any previous case. the nearest approach was the case in khosal chandra v. upendra nath : air1932cal220 . there the 4 annas co-sharer applied for pre-emption. after the application for pre-emption the transferee purchased a 16 gondas share of the superior tenure and applied for pre-emption for himself. it was held.....
Judgment:
ORDER

M.C. Ghose, J.

1. This is an application under S, 115, Civil P.C., by the transferee in a case under Section 26-F, Ben. Ten. Act. The facts of the case are peculiar. The petitioners are 12 annas co-sharers of a certain tenure and the opposite party are the 4 annas co-sharers of the same tenure. Within that tenure, there was a raiyati holding which the petitioners purchased at a price of Rs. 200 on 7th February 1936. Notice of the purchase together with the transfer-fee was sent to the opposite party on 16th June 1936. Thereupon the opposite party on 14th August 1936 made an application for pre-emption under Section 26-F and deposited the sum of Rs. 200 together with compensation of Rs. 20 at 10 per cent. Notice of this application was served on the petitioners on 11th September 1936. They made an application on 28th November 1936 objecting to the pre-emption by the petitioners and claiming pre-emption for themselves and urging that in any case the petitioners could only pre-empt 4 annas share of the holding. The trial Court rejected the defence pleas and allowed the pre-emption.

2. It has been strenuously urged by the learned advocate for the petitioners that the opposite party are not entitled to preempt more than 4 annas inasmuch as the transferees are the owners of 12 annas share of the superior tenure. This question does not appear to have been decided in any previous case. The nearest approach was the case in Khosal Chandra v. Upendra Nath : AIR1932Cal220 . There the 4 annas co-sharer applied for pre-emption. After the application for pre-emption the transferee purchased a 16 gondas share of the superior tenure and applied for pre-emption for himself. It was held that he could pre-empt along with other applicants in the proportion of their shares. This case is different. Here the transferee was already a co-sharer of the superior tenure to the extent of 12 annas. The question is whether the fact that the petitioners were 12 annas co-sharers would thereby exclude the raiyati holding which they purchased from pre-emption to the extent of the 12 annas share. This argument, though attractive, is not borne out by a plain reading of Section 26-F. By Sub-section 2 the applicant, whether he be the sole landlord or a co-sharer landlord, must pay the whole amount of the consideration money together with 10 per cent, compensation. This shows that if no other co-sharer joins in the application the co-sharer who applies will get the whole of the holding for himself. As for the transferee being one of the co-sharers, provision is made under Sub-section (4)(a) where it is stated:

When an application has been made by a co-sharer immediate landlord under Sub-section (1), any of the remaining co-sharer landlords, including the transferee, if one of them, may within the period of two months from the notice or within one month of the application, whichever is later, apply to join in the application of the co-sharer immediate landlord.

3. Thus the transferee even though he be a co-sharer landlord will not save his proportionate share of the holding from pre-emption unless he applies under subsection (4)(a). This is provided by that very sub-section which says:

Any co-sharer landlord who has not applied to join under this sub-section shall not have any further power of purchase under this section.

4. The learned advocate for the petitioners urged that the petitioners in this case having already purchased the whole of the occupancy holding have no need to make a further power of purchase under Sub-section (4)(a), because they are co-sharer landlords to the extent of 12 annas. It does seem absurd that a 12 annas co-sharer landlord who has purchased an occupancy holding should under Sub-section (4)(a) of Section 26-F have to apply to pre-empt out of himself and that if he does not apply within the time allowed by the section his application will be thrown out. There is indeed some apparent absurdity in the section. But the Act must be construed according to its ordinary grammatical meaning. The expression 'the co-sharer landlords including the transferee, if one of them', clearly shows that a purchaser who is a co-sharer landlord is in no more privileged position than if he was a stranger. As soon as the other co-sharer landlords apply to pre-empt, the transferee, even if he be a co-sharer landlord, must within the time allowed by the section apply for pre-emption according to his share.

5. It was urged by the learned advocate that under the previous law, when a co-sharer landlord purchased an occupancy holding, the other co-sharers could get from him their proportionate share of the holding. The reply is that that law has been repealed by the present law, and further under the old law there was no consideration to be paid by the co-sharer landlords, whereas in the present case the 4 annas co-sharers who applied for pre-emption paid the full consideration of Rs. 200 and compensation Rs. 20. Under the old law, they would have got their 4 annas share without any payment at all. It was urged that on a general view it should be held that under Sub-section (4)(a) of Section 26. F, when a co-sharer landlord purchases an occupancy holding, his proportionate share of the holding is never to be pre-empted but only a share of the remaining co-sharers. For this proposition there is no authority in the section itself.

6. The last point made by the learned advocate was that the trial Court should not have decided in this proceeding the validity of the under-raiyati set up by the petitioners. As to this, the other side pointed out that this question was raised by the petitioners themselves and they invited the decision of the trial Court and to their misfortune the decision of the trial Court has been against them. The Court has found that the claim of under-raiyati right is a fictitious claim. However, that is not a question relevant to this proceeding of Section 26-F. By it the opposite party will only get the right, title and interest in the occupancy holding accruing to the petitioners from the transfer from the previous tenant. If there be any under-raiyati, that will not be transferred under Section 26-F, Ben. Ten. Act. The Rule is discharged with costs; hearing-fee two gold mohurs.


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