MADAN MOHAN GHOSH Vs. SISHU BALA ATTA

JUDGEMENT

(1.) These are eight out of twelve Revision Cases referred to the Full Bench by a Division Bench consisting of Laik and S.K. Mukherjea. JJ, by their Order of Reference dated April 30, 1968. The point which induced the learned Judges of the Division Bench to refer the Revision Cases to the Full Bench is whether the right of pre-emption under Section 26-F of the Bengal Tenancy Act survives the West Bengal Estates Acquisition Act 1953 (West Bengal Act 1 of 1954] after Chapter VI thereof comes into force. In all these cases the reference has been made under Chapter VII, Rules 1, 2 and 4 of the Appellate Side Rules and consequently the Full Bench has to dispose of these Revision Cases also on merits. The point is involved in all these cases, but some of these involve other points which arise out of their respective facts and circumstances.

(2.) Laik and S.K. Mukherjea, JJ. have differed from two earlier Division Bench decisions of B. N. Baneriee and D. Basu, JJ. -- one in the case of Abha-ran Chandra Saha v. Sanat Kumar Sen, 68 Cal WN 574 - (AIR 1964 Cal 4601 and the other in Jyotish Chandra Das v. Dhananiay Bag, (1964) 68 Cal WN 1055. In these two decisions B. N. Baneriee and D. Basu. JJ. have held that the right of pre-emption under Section 26-F survived after the passing of the West Bengal Estates Acquisition Act, 1953.

(3.) Section 26-F provides that except in the case of a transfer to a co-sharer in the tenancy whose existing interest has accrued otherwise than by purchase, one or more co-sharer tenants of the holding, a portion or share of which is transferred, may within four months qf the service of the notice under Section 26-C, apply to the Court for the said portion or share to be transferred to himself or themselves. This section confers on a co-sharer tenant of an occupancy holding, a right to compel another co-sharer tenant to sell his share in the holding to him instead of selling it to a stranger. The use of the term 'co-sharer' in Section 26-F contemplates that the holding must be under the ownership of more than one person. The holding must be an occupancy holding, that is, it must be the holding of raiyats having occupancy rights. So long as division of" the holding does not take place in accordance with Section 88 of the Bengal Tenancy Act, the holding remains a ioint holding and each co-sharer will be entitled to pre-empt in case of transfer of a share or portion of the holding by a co-sharer to a stranger. The question is. whether after the coming into force of Chapter VI of the West Bengal Estates Acquisition Act, co-sharership is destroyed, or in other words, whether new tenancies are created by virtue of the provisions of the West Bengal Estates Acquisition Act in respect of each co-sharer.