M.C. Ghose, J.
1. This rule was issued calling upon the opposite party to show cause why the order of the learned Munsif, third Court at Patya, complained of in the petition, should not be set aside or why such other or further order should not be passed as to this Court may seem fit and proper. The matter relates to an application made Under Section 26-F, Ben. Ten. Act, for pre-emption of the lands of the schedule of the application. It appears that one Kamini Kumar Choudhury sold certain lands to the preseno petitioner by a Kobala dated 10th October 1932. The applicant, who is one to the landlords, applied within the period of two months after receiving the notice for pre-emption Under Section 26-F, Ben. Ten. Act.
2. There upon the purchaser Gobinda Chandra Choudhury mentioned in the notice appeared and stated that he had two co-sharers in the purchase. The applicants made the two other persons parties to the case. The first point taken in appeal is that, inasmuch as the landlord accepted the transfer-fee which was sent to him by post along with notice, he is precluded by that fact from his right of pre-emption. The learned advocate has urged that previous to the enactment of Section-26-E, Ben. Ten. Act, in 1928, the Customary law in the country was that when a raiyat transferred his land to a purchaser, the landlord either accepted a selami from him and recognized him as a tenant or refused a selami and sued to eject him from the land, that the enactment of Section 26-F has not altered the principle of the previous law, namely, that the landlord must, as soon as he gets the notice, make his election whether he would accept the transfer-fee or refuse the same and apply for pre-emption. The argument however is not borne out by the wording of Section 26-F. That section plainly enacts that the landlord may apply for pre-emption within the space of two months of the service of notice. It does not say that the acceptance of the transfer-fee will destroy his right of preemption. Not only does the section not say anything of that kind, but upon the reading of Clause (3) of that section it appears that the landlord may accept the transfer-fee and afterwards apply for pre-emption provided that he does so within the period of two months of the date of the notice, and if he does accept the transfer-fee he will, when his application is granted, return the transfer-fee together with interest at the rate of 1212 per cent per annum. There is no other penalty upon him for acceptance of the transfer fee.
3. The next point taken is that two of the purchasers were made parties more than two months after the notice. But that is because the notice, which the purchasers were bound by law to supply to the landlord, was a defective notice. They chose to name one person as the purchaser and not three persons. Their own omission to name all the purchasers cannot be set up as a ground for defeating the landlord's claim. He made his application within two months of the receipt of the notice and impleaded the purchaser whose name was on the notice. The last ground taken is that the vendor Kamini Kumar Choudhury should have been made a party to this application. The reply is that the section does not contemplate that the vendor should be made a party. In the result this application is rejected with costs ; hearing fee assessed at one gold mohur.