1. This is a rule obtained by the petitioners calling upon the opposite parties to show cause why a certain order made by the Munsif under the provisions of Section 26-F, Bengal Tenancy Act, should not be modified. The opposite party 1 purchased an occupancy holding in execution of a decree obtained against opposite parties 2 and 3. The petitioners filed an application for pre-emption under Section 26-F, Bengal Tenancy Act. The opposite party 4 who is a cosharer of the petitioner and the only one of the opposite parties who opposed the application filed a petition for leave to join the pre-emption on 12th December 1936. On 21st December he created a permanent lease of his share in the landlord's interest in favour of the opposite party 5. On 19th April 1937, the learned Munsif made an order allowing pre-emption both to the petitioner and to the opposite party 4. The petitioner then obtained this rule.
2. In support of the rule, it is contended that as the opposite party 4 was no longer a co-sharer landlord when the order was made, he was not entitled to pre-empt. In opposing the rule, Mr. Bhattacharya contended that no right in khatiyan No. 82 was transferred by the opposite party 4 to the opposite party 5 by the lease in question. The learned. Munsif while not going as far as this, held that the right of preemption was not transferred. It is not very clear to me what exactly he means by this. The lease appears to be perfectly clear. The interest of the opposite party 4 to realize the rent for the holding covered by this khatiyan was undoubtedly transferred by the lease in question. There is merely a proviso that in the event of preemption being granted to the opposite party 4 he will allow the opposite party 5 to hold the land khas instead of paying rent to him. I must therefore overrule this contention.
3. In support of the rule, the learned advocate cited the case in Nuri Mian v. Ambica Singh (1917) 4 AIR Cal 716 as an illustration of the principles that ought to be applied. The learned Chief Justice held that in a suit for pre-emption the right of the plaintiff to get pre-emption must exist not only at the time of the sale but also at the time of the institution of the suit and finally up to the date of the decree. The general principles are well illustrated in the concurring judgment which was delivered by Mookerjee J. In my opinion it makes no difference that the present case is not governed by the principles of Mahomedan law. This peculiar right of pre-emption was created by the statute itself and it is abundantly clear that the right depends upon the applicant being an immediate landlord of the holding. At the time he makes his application, it does not necessarily follow that he will be allowed to pre-empt and by the provisions of Sub-section 6 it is only when the order under Sub-section 5 is made that the right, title and interest of the share accruing to the transferee vests in the immediate landlord. In the present case, the opposite party 4 had ceased to be the immediate landlord before an order under Sub-section 5 was made. This rule is accordingly made absolute and the order of the learned Munsif is modified. The petition of the petitioner for pre-emption will be allowed and that of the opposite party 4 dismissed. The petitioner will get his costs from the opposite party 4 both here and in the Court below. Hearing fee one gold mohur.