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NabiruddIn Sarkar and anr. Vs. Osman Gani Sarkar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1941Cal481
AppellantNabiruddIn Sarkar and anr.
RespondentOsman Gani Sarkar and ors.
Excerpt:
- .....case. the share of petitioner 1 is seven annas, the share of petitioner 2 is three annas and the share of opposite party no. 1 is three annas. the remaining three annas was sold and was the subject-matter of the application. after the sale the petitioners applied under section 26-f for pre-emption. opposite party no. 1 then joined in the application and made a prayer that he might be treated as one of the applicants for pre-emption. the learned munsif allotted the whole of the three annas to opposite party no. 1. an appeal to the district court was unsuccessful. sub-section (5) of the section requires that the court shall make an order allowing the application of those cosharers who have made the deposits required by the section. sub-section (6) states that in making an order in favour.....
Judgment:
ORDER

Henderson, J.

1. This rule is in connexion with an application under Section 26-F of the Bengal Tenancy Act. It is not disputed that the new section applies to the case. The share of petitioner 1 is seven annas, the share of petitioner 2 is three annas and the share of opposite party No. 1 is three annas. The remaining three annas was sold and was the subject-matter of the application. After the sale the petitioners applied under Section 26-F for pre-emption. Opposite party No. 1 then joined in the application and made a prayer that he might be treated as one of the applicants for pre-emption. The learned Munsif allotted the whole of the three annas to opposite party No. 1. An appeal to the District Court was unsuccessful. Sub-section (5) of the section requires that the Court shall make an order allowing the application of those cosharers who have made the deposits required by the section. Sub-section (6) states that in making an order in favour of more than one cosharer, the Court may apportion the property comprised in the share transferred among the applicants in such manner as it deems equitable after taking existing possession into consideration. Now, in my judgment, it is perfectly clear that the Munsif has not made an apportionment at all. He has allotted the whole of the share to one of the applicants. Apportionment means the division of the property amongst the persons entitled to it and in making an apportionment he must allot something to all of them. What the order of the Munsif really amounts to is a dismissal of the application of the petitioners, which is in direct contravention of Sub-section (5).

2. In opposing the rule, Mr. Maitra contended that in making the apportionment the Munsif was simply exercising his discretion in a particular manner. The answer to that is that he has not made an apportionment and that he has made an order which he had no right to make under the terms of the section. The parties are cosharers and the property is joint. Obviously, the most appropriate order to make is to leave the present state of affairs as it is. I can imagine nothing more inconvenient than an order which would amount to a partition of a small portion of the property only. The rule is, accordingly, made absolute and the orders of the Courts below are set aside. There will be an order allowing the applications of the petitioners and opposite party No. 1 in proportion to their respective shares. The sum of Rs. 82-8-0 will be returned to the petitioners and to opposite party No. 1 in accordance with the share to which they are respectively entitled. The opposite party No. 1 will pay the costs of the petitioners in this Court. The hearing fee is assessed at one gold mohur. The orders with regard to costs in the Courts below are maintained.


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