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Rai Nalinaksha Dutta Bahadur Vs. Kazi Abdul Jalil and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1936Cal398,166Ind.Cas.742
AppellantRai Nalinaksha Dutta Bahadur
RespondentKazi Abdul Jalil and ors.
Cases ReferredAbdul Jalil v. Sm. Mahamuda Khatun
Excerpt:
- .....26-f, sub-section (1), 01. (a). this is the main difficulty which i feel in the way of the petitioner landlord. in this view of the matter it is not necessary for me to consider the precise effect of sub-section (8), section 26-f, although there is much force in the contention of the opposite parties based on the said sub-section. both the landlord and mohamed soleman had based their cause of action for pre-emption on the self, same transfer, viz. the transfer by the kolas. mohamed soleman, who is a co-sharer in the tenancy other than by purchase, has already got pre-emption order in his suit, and the title of the kolas had vested in him.5. in support of his contention the learned advocate for the petitioner relied upon the decision in abdul jalil v. sm. mahamuda khatun 1934 cal 3......
Judgment:

R.C. Mitter, J.

1. This appeal raises a question, so far as I am aware, of first impression. The position is that six persons, namely Surman Mondal Kola and five others, who may conveniently be called the Kolas, had an interest in an occupancy holding; Muhamed Soleman was their co-sharer in the said holding. They are all Muhamedans. On 4th April 1934 the Kolas sold their share in the holding to opposite parties 1 to 3 who are also Muhamedans. The notice of this transfer was served upon the landlord, the petitioner before me.

2. On getting the notice the petitioner made an application for pre-emption under Section 26-F, Tenancy Act, in the Court of the Second Munsif at Krishnagar on 6th June 1934. The transferees, namely opposite parties 1 to 3, were made parties defendants to that application. While this application was pending Muhamad Soleman instituted in the same Court a suit to enforce the right which he had to pre-empt under the Mahomedanlaw. The landlord was made defendant 10. This suit for pre-emption and the application under Section 26-F were heard together and one judgment was pronounced. In dealing with the suit for pre-emption the learned Munsif came to the conclusion that the landlord, the petitioner before me, was not a necessary party. He came to the conclusion that Mohamad Soleman was a co-sharer of the Kolas and he had become a co-sharer not by purchase but by inheritance from his maternal grandfather who was a cosharer of the predecessor of Surman and five other Kolas. The learned Munsif made a decree for pre-emption in favour of Mohamed Soleman and directed him to put in the consideration money for which the Kolas transferred the property, with interest together with costs of conveyance and registration, within a fortnight from the date of the judgment. The money was put in by Mohamed Soleman within time. Therefore he has got an absolute decree for pre-emption in his favour. The decree was given on the basis that as a co-sharer in the property he had got the right of pre-emption both the transferors and the transferees being Mohamadans.

3. After disposing of the suit for preemption, the learned Munsif took up the application for pre-emption under Section 26-F. He came to the conclusion that the petitioner had not in the circumstances of the case any right of pre-emption because of Sub-section 8 of that section. In my judgment the order is correct. By reason of the pre-emption decree passed in the pre-emption suit the transferees, opposite parties 1 to 3, ceased to have any right, title and interest in the property purchased by them since Mohamed Soleman has complied with the decree for pre-emption by putting in Court the necessary money. The title to that part of the holding which belonged to the Kolas is now in Mohamed Soleman and is not in opposite parties 1 to 3. Section 26-F, Sub-section (1), Clause (a) enacts that when the transferee of an occupancy holding is a co-sharer in the tenancy whose existing interest has accrued otherwise than by purchase, the landlord has no right to pre-empt. In the present case Mohamed Soleman, who has now acquired the interest of the Kolas by reason of the decree in his suit for pre-emption, is a cosharer and he had derived his character as co-sharer tenant by inheritance. Subsection ( 5) of the said section deals with the making of an order for pre-emption in favour of the immediate landlord, and Sub-section (6) deals with the effect of such an order. That Sub-section says:

From the date of the making of the order under Sub-section (5), the right, title and interest in the holding or portion or share thereof accruing to the transferee from the transfer shall . . . be deemed to have vested in the immediate landlord and co-sharer immediate landlord, if any, whose application has been allowed, &c.;

4. At the date of the order, in Misc. Case No. 42 of 1935 the right, title and interest in the holding had already vested in Mohamed Soleman by reason of the pre-emption decree in the suit. There was no right, title and interest left to opposite parties 1 to 3 on which the preemption order, if made under Section 26-F, Sub-section (5), can operate. That is to my mind a difficulty in the way of the landlord in the present case. The title in the holding which formerly belonged to the Kolas has now vested in Mohamed Soleman. There can be no order for pre-emption against Mohamed Soleman by reason of the provision of Section 26-F, Sub-section (1), 01. (a). This is the main difficulty which I feel in the way of the petitioner landlord. In this view of the matter it is not necessary for me to consider the precise effect of Sub-section (8), Section 26-F, although there is much force in the contention of the opposite parties based on the said Sub-section. Both the landlord and Mohamed Soleman had based their cause of action for pre-emption on the self, same transfer, viz. the transfer by the Kolas. Mohamed Soleman, who is a co-sharer in the tenancy other than by purchase, has already got pre-emption order in his suit, and the title of the Kolas had vested in him.

5. In support of his contention the learned Advocate for the petitioner relied upon the decision in Abdul Jalil v. Sm. Mahamuda Khatun 1934 Cal 3. I do not think that this case has any bearing on the present case so far as the present controversy is concerned. In the last part of the judgment only an obvious proposition is laid down that a man can be pre-empt against himself. It is for these reasons that I discharge this rule, but in the circumstances I make no order as to costs.


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