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Mohammad Gorib HossaIn Mia Vs. Sm. Halimannessa Bibi and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtKolkata
Decided On
Reported inAIR1936Cal231
AppellantMohammad Gorib HossaIn Mia
RespondentSm. Halimannessa Bibi and ors.
Cases ReferredSurjya Kumar v. Noabali
Excerpt:
- .....on behalf of the petitioner that no period of limitation has been prescribed within which cosharer landlords are to be made parties to the proceeding under section 26-f (1), and that the munsif was wrong in rejecting the application on the ground of limitation. the munsif's decision is based on an interpretation of sections 26-f and 188, ben. ten. act, and it is with those two sections that we are concerned. in the first place the advocate for the petitioner has argued that section 188 has no application to a proceeding under section 26-f. he argues that section 188 applies only to proceedings in which action by the sole landlord or by the entire body of landlords acting together is contemplated: that it does not apply to proceedings in which a single cosharer is entitled to.....
Judgment:
ORDER

Lodge, J.

1. This rule arises out of an order passed in a proceeding under Section 26-F Ben. Ten. Act. Opposite party No. 1 is the transferee of an occupancy raiyati holding. Petitioner is one of the immediate cosharer landlords of that holding. On 14th May 1934 petitioner made an application under Section 26-F (1) praying that the holding be transferred to himself. The transferee and five of the petitioner's co-sharers, were made defendants in that application. On 21st June 1934 the transferee filed a petition of objection and pointed out therein that there were 23 co-sharers of the petitioner of whom only 5 had been made parties.

2. On 30th July 1934 petitioner applied to add the 18 co-sharers named in the transferees's objection, as parties defendants and was permitted to do so. The Munsif who heard the application held that petitioner was well aware that he had co-sharers who were not made parties before 30th July 1934, and that as all the co-sharers were not made parties within two months of the service of notice under Section 26-C, nor within one month of the date of application under Section 26-F (1), the application was time barred. The Munsif accordingly rejected the application under Section 26-F (1). Against that order the present rule has been obtained. It has been contended on behalf of the petitioner that no period of limitation has been prescribed within which cosharer landlords are to be made parties to the proceeding under Section 26-F (1), and that the Munsif was wrong in rejecting the application on the ground of limitation. The Munsif's decision is based on an interpretation of Sections 26-F and 188, Ben. Ten. Act, and it is with those two sections that we are concerned. In the first place the advocate for the petitioner has argued that Section 188 has no application to a proceeding under Section 26-F. He argues that Section 188 applies only to proceedings in which action by the sole landlord or by the entire body of landlords acting together is contemplated: that it does not apply to proceedings in which a single cosharer is entitled to act. Inasmuch as Section 26 F (1) permits an application by a cosharer it is not necessary for the application to be made by the whole body of landlords. I am unable to accept this view. In the first place if Section 188 had no application to such a proceeding under Section 26-F the proviso to the section would not have been made applicable to a proceeding under Section 26-F (1). In the second place it has been held in Baikantha Chandra v. Samsul Haq 1934 Cal 662 that Section 188 does govern Section 26-F and no other authority on the question has been cited. I am satisfied therefore that Section 188 governs proceedings under Section 26-F. Section 188, Ben. Ten. Act, reads as follows:

Subject to the provisions of Section 148-A, where two or more persons are cosharer landlords, anything which the landlord is under this Act, required or authorised to do must be done either by both or all those persons acting together or by an agent authorised to act on behalf of both or all of them.

Provided that one or more cosharer landlords, if all the other cosharer landlords are made parties defendant to the suit or proceeding in manner provided in Sub-sections. (1) and (2), Section 148-A and are given the opportunity of joining in the suit or proceeding as co-plaintiffs or co-applicants, may (1) file an application under Sub-section (1), Section 26-F.......

3. This section contemplates that an application to pre-empt under Section 26-F (1) shall ordinarily be made by the whole body of cosharer landlords acting together. One or more co-sharers, not being the whole body of cosharer landlords, may however make an application under Section 26 F (1) provided that certain conditions are fulfilled. If those conditions be not fulfilled, such co-sharers are not entitled to pre-empt under Section 26-F. The conditions to be fulfilled are (1) that all the other cosharer landlords be made parties defendant to the proceeding; and (2) that all the other cosharer landlords be given an opportunity of joining in the proceeding as co-applicants. The first of the conditions is designed to inform all the interested co-sharers of the proceeding and to enable them to note the result and correct their collection papers and records if necessary. This objection would be attained if the co-sharers were made parties at any time before final orders on the application were passed.

4. The second of the two conditions is designed to protect one cosharer against pre-emption by another cosharer. The legislature recognises that a cosharer landlord may be quite willing to allow the original transferee to remain in possession of the holding, but be unwilling to allow one of more of his co-sharers to step into the shoes of that transferee. For this reason a cosharer is given the right of joining in the proceeding as coapplicant. If however a cosharer landlord desires to join in the proceedings as co-applicant he must comply with the condition laid down in Section 26-F, Sub-sections (4-a) and (4-b). If such co-sharers do not apply within two months of the service of notice under Section 26 C or 26 E, or within one month of the application under Section 26-F (1), he has no right to join in the proceeding as co-applicant. If therefore he be not informed of the application under Section 26-F (1) in sufficient time to comply with the provisions of Section 26-F, sub-Sub-section 4a and 4b, it cannot besaid that he is given an opportunity of joining in the proceeding as a co-applicant. In such a case, it would follow that the conditions under which one or more co-sharers, not being the whole body of landlords, are entitled to make an application under Section 26-F (1) had not been fulfilled, and the application under Section 26-F (1) would not be maintainable.

5. The above argument applies where notices under Section 26-C or 26-E have been duly served on all the co sharer landlords. But as pointed out in Baikantha Chandra v. Samsul Haq 1934 Cal 662 and in Surjya Kumar v. Noabali 1932 Cal 289 the Bengal Tenancy Act does not take into account the possibility that notices may not have been duly served on all the co-sharer landlords. It has been held in the two cases referred to, that a co-sharer landlord upon whom no notice under Section 26-C or 26-E has been served, may apply under Section 26-F (1) within a reasonable time of the date of his knowledge of the transfer. None of the rulings to which my attention has been drawn, discusses the rights of such a co-sharer to join in an application under Section 26 F (4a). The Advocate for the petitioner has argued that the same principle should be applied to applications under Section 26-F (4a) as to applications under Section 26-F (1); and that it should be held that a cosharer upon whom no notice has been served under Section 26-C or Section 26-E, may apply under Section 26-F (4a) within a reasonable time of his knowledge of the transfer. He argues further that if this view be adopted, the application of one cosharer under Section 26-F (1) should not be rejected on the ground that the second of the two conditions laid down in the proviso to Section 188 has not been fulfilled. If the right of the other co-sharers to join in the proceedings as co-applicants has not become barred by limitation, the right to apply under Section 26 F (4a) to join as co-applicant in proceedings instituted under Section 26-F (1) by a co-sharer is distinct from the right to institute the proceedings under Section 26-F (1). The right given under Section 26-F (4a) to join in the proceedings is given to a landlord who does not desire to pre empt unless his co-sharers insist on doing so. If therefore the result of refusing to extend the time for joining in the application be to invalidate the original application under Section 26-F (1), the other co-sharers who did not apply under Section 26-F (1), will not be prejudiced.

6. It is not necessary to extend the period of limitation in order to protect the interest of the co-sharer landlord upon whom no notice has been served. The extension of time is for the benefit mainly of the co-sharer landlord upon whom notice was duly served and who has applied under Section 26-F (1), but has omitted possibly deliberately to inform his co-sharer of his action. On the other hand, the extension of time allowed in Baikantha Chandra v. Samsul Haq 1934 Cal 662 and Surjya Kumar v. Noabali 1932 Cal 289 was necessary to protect the interests of the co-sharer landlord upon whom no notice was served. It is obvious that a transferee may have every justification for omitting to serve notices of the transfer on all the co-sharer landlords. If heshould omit to serve notices on all, then, however justifiable the omission, he exposes himself to the liability of pre-emption by a co-sharer landlord upon whom no notice was served, for an indefinite time. There will ordinarily be less excuse for one co-sharer landlord omitting to inform the other co-sharer landlords of his intention to apply or of his application under Section 26-F (1). He will ordinarily know who his co-sharers are. He does not derive his knowledge from the conduct of the transferee He will ordinarily be ignorant whether notices under Section 26-C or 26-E have or have not been served upon his co-sharers.

7. A co-sharer landlord applying under Section 26 F (1) is presumed to know the necessity of informing his other co-sharers of the application within sufficient time to enable them to comply with the conditions of Section 26-F sub-Ss 4a and 4b. If he intentionally omits to inform them in time, there is no reason why he should benefit by the omission, possibly unintentional and excusable, of the transferee to serve notices upon other co-sharers which omission has not affected his conduct in any way. I can see no reason therefore to extend the rule laid down in Surjya Kumar v. Noabali 1932 Cal 289 to applications under Section 26-F (4a). I understand by the second condition mentioned in the proviso to Section 188 that a co-sharer landlord upon whom notice under Section 26-C or E of a transfer has been served, and who wishes; to apply under Section 26-F (1), must give in-formation of his application to all the co-sharer landlords known to him, with in such time that those co sharer landlords can, if they wish, make an application under Section 26 F (4a) and a deposit under Section 26-F (4b) within two months of the service of notice on the co-sharer landlord who is applying under Section 26-F (1) or within one month of his application under Section 26-F (1) whichever is the later. If he does not give all of them the information within the time so described, his application under Section 26-F (1) should be rejected, not on the ground that it is barred by limitation, but on the ground that the conditions on which alone the application can be entertained, have not been fulfilled.

8. In the present case 18 of the co-sharers were brought on to the record on 30th July 1934, i.e., more than two months after the date of the application under Section 26-F (1) and therefore necessarily more than two months after the service of notice under Section 26-C. Notice of the application was served on them after 30th July 1934. It is not suggested that they were given information of the application under Section 26 F (1) in any other manner than by service of notice after 30th July 1934. They were not therefore given an opportunity of joining in the proceedings as co-applicants. Such being the case the conditions under which petitioner was entitled to apply under Section 26-F (1) were not fulfilled, and his application was rightly rejected. This rule is discharged with costs two gold mohurs.


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