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Nibaran Chandra Bhattacharjee Vs. Hem Nalini Debi and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1936Cal167
AppellantNibaran Chandra Bhattacharjee
RespondentHem Nalini Debi and anr.
Excerpt:
- .....allowed. under sub-section (1), as soon as the notice is served, the landlord has the right to make an application. this application will be dismissed unless the amount of the consideration money together with the compensation is paid into court. the court then has to give notice to the transferee so that he may have an opportunity of stating what other sums, if any, he may have paid in respect of the property. the court then directs the applicant to pay these amounts into court as well. when these deposits are made under sub-section (5) the court shall make an order allowing the application.2. the first thing to be noticed is that the transferor takes no part whatever in these proceedings. no notice is to be served upon him and it does not appear that he has any locus standi. the.....
Judgment:
ORDER

Henderson, J.

1. This is a rule calling upon the opposite parties to show cause why an order of the Munsiff dismissing an application made by the petitioner for pre-emption under the provisions of Section 26-F, Ben. Ten. Act, should not be set aside. The facts are these: Opposite party No. 2 is the transferor, opposite party No. 1 is the transferee. When the notice was served upon the petitioner he filed an application. The opposite parties then combined together to make out a case that there was no transfer; that opposite party No. 2 was a minor; that no consideration passed and so on. The learned Munsiff went into all these questions and came to the conclusion that there was no transfer, with the result that opposite party No. 2 is still a raiyat holding under the petitioner. The question raised in this rule is whether it was open to the Munsiff to consider this question at all. The section appears to have been enacted in order to provide a procedure by which the money due from the pre-emptor will be paid to the transferee and for ensuring that the right of pre-emption is exercised within the time allowed. Under Sub-section (1), as soon as the notice is served, the landlord has the right to make an application. This application will be dismissed unless the amount of the consideration money together with the compensation is paid into Court. The Court then has to give notice to the transferee so that he may have an opportunity of stating what other sums, if any, he may have paid in respect of the property. The Court then directs the applicant to pay these amounts into Court as well. When these deposits are made under Sub-section (5) the Court shall make an order allowing the application.

2. The first thing to be noticed is that the transferor takes no part whatever in these proceedings. No notice is to be served upon him and it does not appear that he has any locus standi. The transferee is entitled to show that he spent money on account of the property; but he is not allowed to file any objection to the granting of the petition on any other ground. On the contrary, under the Sub-section the Court shall make an order allowing the application provided the deposits have been made. It is quite clear from these provisions that it was never the intention of the legislature that complicated questions of title should be gone into and determined in these proceedings. Any right which the transferor may have in the property remains entirely unaffected and it is only the right, title and interest of the transferee which passes. It appears that in this case the transferor is still in possession and the petitioner will not be able to obtain possession without bringing a suit in which the question of title between him and the transferor will be gone into and decided on proper materials after proper issues have been framed. But it was never the intention of the legislature that questions of that sort should be determined in the way in which it was sought to do in these proceedings. It was not suggested on behalf of the transferee that the necessary deposits were not made and this is the only ground on which he could resist the granting of the application. If in spite of having notice of the case now made between the transferor and transferee the petitioner wishes to proceed with his application, he is entitled to succeed. The result is that this rule is made absolute. The petitioner will be granted a declaration allowing the application in the terms of Sub-section (5). In the circumstances, I make no order as to costs.


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