R.C. Mitter, J.
1. The two petitioners before me and sixteen other persons are the immediate landlords of an occupancy holding. The tenants transferred their holding to certain persons for a price of Rs. 90 by a registered conveyance. The notices of transfer required to be filed with the registration officer under Section 26-C, Tenancy Act, were served on all the landlords on 5th March 1935. Two of these landlords, namely, the two petitioners before me, made, on 2nd May 1935 an application for pre-emption under Section 26-F (1). They made the transferees and the remaining landlords opposite parties to their application for pre-emption. In the said application they stated that they had one anna nine gundas and two krants share in the landlords' interest and the landlords opposite parties had the remaining shares therein. Notice of this application was served on the cosharer landlords on 22nd May 1935. On 1st Juno 1935, two of them, namely the opposite parties before me, appeared and made an application. They have 5 as 6 gundas 2 karas and 2 krants share, that is one-third share, in the landlords' interest. In the said application they stated that the petitioners before me have a small share and if they are allowed to pre-empt the whole, they would suffer great loss. They, the said opposite parties, then went on to state that they have not been able to collect the money which they are required by law to deposit for enabling them to join in their co-sharer's application for pre-emption. They then state as follows: 'Accordingly these opposite parties after depositing the money according to their share will join in the application for preemption.' The prayer is for some time to make the said deposit. On this application the Court made the following order on 1st June 1935:
Notice duly served. Opposite parties Nos. 8 and 9 co-sharer land-lords (the opposite parties before ma) want time to join the petitioners in their claim for pre-emption by depositing the requisite money. Case adjourned to 21st June 1935 for hearing. Opposite parties Nos. 8 and 9 may deposit the requisite amount and join as co-petitioners by the next date.
2. The opposite parties deposited on 21st June Rs. 33 by a challan. The challan shows that Rs. 30 was deposited on account of the price (being one third thereof) and Rs. 3 as compensation. No formal application was made at a later stage by them praying for becoming co-applicants for pre-emption. The transferees did not contest the application for pre-emption. The contest is between two sets of landlords, namely the petitioners and opposite parties before me, and if the opposite parties succeed they would be entitled to have two-third shares in the holding and the petitioners one-third share, because the proportion of their shares in the landlords' interest is 2 to 1. In fact the said parties have been allowed by the learned Munsiff to pre-empt according to the said proportion. The petitioners contended before the lower Court and also before me that the opposite parties cannot be allowed to pre-empt for two reasons, namely: (a) that they never made any application for becoming co-applicants for pre-emption, and (b) that the deposit made by them was out of time, the learned Munsiff having no power to extend the time for deposit beyond 2nd June 1935, i.e., beyond one month of the filing of the petitioner's application for pre-emption. Before I deal with these points and the reason given by the learned Munsiff for overruling them it is necessary to examine in some detail the provisions of the statute on the subject. When a landlord or the whole body of landlords or some of the co-sharer landlords apply for pre-emption under Sub-section 1 of Section 26-F, he or they, as the case may be, must deposit in Court with the application the price of the property as stated in the notice of transfer and ten per cent compensation. When such an application is made some days before the last date unaccompanied by such a deposit, but the deposit is made later on but within the period of limitation, a question may be and has been raised in some of the reported cases, as to whether there is sufficient compliance with the statute. On this point there is a divergence of judicial opinion [see Girish Chandra Ghose v. The Jadapur Estate Ltd. 1935 Cal 389; Sidheswara Prosad Choudhury v. Gendu Mia (1935) 61 C L J 27]. I am not called upon in this case to decide this point, and if I had been, I would be inclined to the view expressed by Mitter, J. in the case in Sidheswara Prosad Choudhury v. Gendu Mia (1935) 61 C L J 27.
3. In the case where some of the co-sharer landlords apply for pre-emption under subSection 1 of Section 26-F, the remaining co-sharers must be made opposite parties, either in the application as originally filed or by an application for amendment made within one of the two periods of time mentioned in Sub-section 4 (a) of Section 26-F. This is my view of the effect of Section 188. The words 'giving opportunity of joining in the proceedings' occurring in that section mean this: It is not necessary that the co sharer landlord applicant must invite the remaining co-sharer landlords made opposite parties by him to come forward and join in his application for pre-emption, nor is he required to give his consent to their so joining. All that he is required to do is to place his co-sharer landlords so far as the proceedings are concerned in a position to join in the pre-emption if they like. It would be for the Court to call upon the said co-sharer landlords opposite parties to join in the application for pre-emption by inserting such a direction in the summons. This is in my judgment the effect of the cases in, Muhammad Garib Hossain Mia v. Sm. Halimannessa Bibi 1936 Cal 231, Gajendra Nath Mandal v. Kunja Behary Mistry 1936 Cal 388 and of Section 148-A (2). The absence of an express statement in his application for pre-emption to the effect that he has no objection to his co-sharers joining in his application for pre-emption or that he would be willing to treat them as co-applicants is not required and its absence would not make his application for pre-emption, if it is otherwise good, a bad one. It is not necessary in this case to consider the provisions of Sub-section (3) of Section 26-F.
4. Whether the landlord applying for pre-emption can be required to deposit under this Sub-section as a condition, precedent to pre-emption sums of money on heads other than those expressly mentioned therein need not be considered in this case. The said question has been considered in Secy. of State v. Sukh Chand Saw 1934 Cal 749. The matters that have to be next considered are the rule and procedure to be followed, by a co-sharer landlord opposite party wishing to join in his co-sharer's application for pre-emption. Co sharer landlords opposite parties must apply to be joined as co-applicants within two periods whichever gives them the longest time i.e., within two months of the service of notice of the transfer on them or within one month of the application made by their co sharer under Section 26-F (1). I am here considering only the case where the notice of transfer has been served on them. The period of one month must be counted from the date of the filing of the application under Section 26-F (1) and not from the date of the service thereof. The latter interpretation of Sub-section 4 (a) of Section 26-F cannot in my judgment be adopted for that would be introducing into the statute words which are not there. I fail to see how hardship would result by adopting the former construction. If the service of the summons be delayed beyond a month by reason of the acts or defaults of the applicant for pre-emption, his application for pre-emption would be thrown away on the ground of non-compliance with Section 188. The co-sharer landlords opposite parties cannot complain of such a course or of losing their right of pre-emption in such a case, for it must be taken from their not making an independent application under Section 26-F (1) that they had no objection to the transferees possessing the holding but had objection only to their co-sharer possessing it alone by the exercise of the rights of pre-emption.
5. If the summons be not served within the period of one month of the filing of the application under Section 26-F (1) by an act of omission or mistake of the Court or of its officers the application of the cosharer applicant under Section 26-F (1) would be a good one, but the Court would be under a duty to relieve the co-sharer landlords opposite parties from the injury done to them by its acts or defaults or those of its officers: [Gadhadhar Sarkel v. Gopal Chandra Dass 1936 Cal 343] If according to the principle discussed above a co-sharer landlord opposite party's application to become a co-applicant is in time, the further question of deposit in Court of his share of the price of the holding as stated in the notice of transfer and ten per cent compensation has to be considered. This deposit should ordinarily accompany such an application but if it is not put in along with the application it is not fatal, but it must be deposited within the period of limitation prescribed in Section 26-F, Sub-section 4, Clause (a) for such an application. In the case where there is no dispute as to the respective shares of the landlords who are the original applicants for pre-emption and who later on wish to become a co-applicant, the amount to be deposited by such a co-applicant can be easily ascertained by him. It must be according to the proportion that his share bears to the share of the other co-sharer landlords who want to pre-empt, for it is on that proportion that the final order for pre-emption must define their respective shares in the pre-empted holding. If there is a dispute as to the shares or right of any of such co-applicant, or if he feels uncertainty or doubt about the amount he has to deposit, the Court has to determine the amount to be paid by him. The Court must be moved in such a case in time and when so moved a duty would be cast on the Court to determine the amount in time. After determining it it can extend the time for deposit but not beyond the period of time indicated in Clause (a) of Sub-section 4. The whole scheme in the matter of deposits whether the application is under Section 26-F (1) or 26-F (4) seems to me to be that the deposit to be made by applicants or the co-applicants for pre-emption must be made within the time limit imposed by statute for making such applications. In both these classes of applications there must be the same exceptions when prejudice is caused by the mistakes, acts and defaults of the Court itself or of its officers. It is now necessary to examine the reasons given by the learned Munsif in support of his order. His reasons are as follows:
6. (i) The application of the opposite parties dated 1st June 1935 must be considered to be an application for joining as co-applicants; (ii) that the deposit made by the opposite parties was in time as it was made within one month of the date of the service of the notice of the application for pre-emption made by the petitioners, which is the time up to which the Court can extend time for such deposit; (iii) that even if the law does not empower the Court to extend time up to the aforesaid period, but only up to a month from the date of the filing of the application for pre-emption under Section 26-F (1), the petitioners' application under that Sub-section was not a proper one, as Section 188 had not been complied with, as they did not embody in their application an invitation to the opposite parties and their other co-sharers to come and join in their application. The last mentioned reason is not obviously sound. If the petitioners' application for preemption has not complied with the provisions of Section 188, their application will then have to be dismissed on that ground, but the so-called defect cannot nullify the provisions of Section 26-F (4) (b) by authorising the Court to receive as a good deposit an amount of money put in beyond the periods of time mentioned in Section 26-F (4) (a), mistake and omission of the Court itself or of its officer being out of the question. I have also indicated in the earlier part of my judgment the scope of Section 188, and I hold that the petitioners' application for pre-emption was a defective one.
7. The first reason given by the Court below may or may not be sound. It depends upon the construction of the application made by the opposite parties on 1st June 1935. The words of the application imply that it is merely an application for time. Even if it be considered to be an application by the opposite parties becoming co-applicants for pre-emption, it does not help them; for in my judgment their deposit of a part of the amount of the price of the property sold and compensation was made too late. This leads me to consider the second ground given by the learned Munsiff. In the case before me the opposite parties did not ask the Court to determine the amount they will have to put in and that amount was never determined by the Court. They had no doubt in the matter, for without the Court naming any amount they deposited Rs. 33 on 21st June 1935. The learned Munsiff held that limitation for an application to become co-applicant runs from the date of the service on them of the petitioners' application for preemption; the other case, namely the application of the co-applicant must be within two months of the service of the notice of transfer on them need not be considered in this case. The reason given is that a deposit can only be made by co-applicants after the Court determines the amount and makes an order requiring the amount so determined to be deposited. The learned Munsiff says that the Court would not be in a position in many cases to determine the amount within one month of the filing of the application for pre-emption under Section 26-F (1) by a co-sharer. Says the learned Munsiff, that the notices of the said application may be served on the cosharer either on the 30th day from the date of filing of the application under Section 26-F (1) or even beyond a month thereof. In the last mentioned case, as I have indicated above, there is no difficulty. If the service was delayed by the applicant under Section 26-F (1), his application will have to be dismissed; if the mistakes or omissions of the Court or its officers were responsible, the Court would relieve against the prejudice caused. If the notice is served within one month of the date of the filing of the application for pre-emption the intending co-applicant can himself in most cases calculate the amount and put it in time. If he feels any doubt or uncertainty, or if shares in the landlord's interest are in dispute, he can at once apply to the Court to fix the amount, which the Court can do immediately without making any final adjudication about the shares, and subject to that adjudication later on. On this part of the case the learned Munsiff says that a determination of the amount cannot be made till the Court has made up its mind as to whether the several landlords wishing to pre-empt should be given on preemption equal shares in the pre-empted holding or shares in proportion to their respective shares in the landlord's interest. If that be the criterion, the Court would not be in a position to determine the amount till the case is fully heard and the stage of Sub-section 5 of Section 26-F has been reached. That would in most cases extend the time much beyond a month of the service of the notice of the application made under Section 26-F (1) I do therefore hold that a Court cannot extend the period for making a deposit by a co-applicant beyond the period of time mentioned in Clause (a), sub Section 4 of Section 26-F.
8. I accordingly make this Rule absolute and dismiss the opposite parties' claim for pre-emption. The result is that the lower Court is directed to pass an order for pre-emption only in favour of the petitioners before me, after requiring them to deposit such further sums of money that they may be liable to put in under the provisions of Sub-section 3 of Section 26-F.
9. The contesting parties to bear their respective costs throughout.