RAMANUJ OJHA Vs. NIRMAL CHANDRA MAJHI

JUDGEMENT

(1.) A short but interesting question of law is raised in this revisional case, which does not appear to be covered by any direct decision of this Court. The question is whether an application for pre-emption under Section 26F of the Bengal Tenancy Act filed after the execution of a deed of sale, but before its actual registration, should be dismissed in limini as being premature and not entertainable in law. This question has arisen under the following circumstances:

(2.) Mr. Mitter appearing on behalf of the Petitioner contended that a right of pre-emption under Section 26F of the Bengal Tenancy Act accrues to a co-sharer of an occupancy rioti holding only after its transfer under Section 260 of the same Act and as the transfer of an occupancy can only be effected by a registered instrument save in some cases excepted under Section 260, it must be held that there is no valid and complete transfer of an occupancy rioti-holding until the kabala is actually registered. Mr. Mitter argued that there is no cause of action for preemption until actual registration of the deed and as the application for pre-emption was filed in the present case before the actual registration of the conveyances the application was not entertain able.

(3.) In support of the above contention Mr. Mitter drew my attention to a Division Bench case reported in Gobardhan Bar v. Gunadhar Bar,1940 44 CalWN 802. In this case Mukherjea J. held that in determining whether a particular transaction would be governed by the old section of the Bengal Tenancy Act or the new section, the material date to be considered is not the date of execution of the deed but that of its registration when only the transfer is completed. The facts of this case would show that a part of an occupancy rioti-holding was transferred on the 9th August, 1938. The document was registered on the 24th August following. In the meantime the Bengal Tenancy Amendment Act of 1938, which for the first time gave a co-sharer tenant the right of pre-emption, came into force on the 18th August, 1988. The co-sharer tenant applied for pre-emption after the date of registration of the deed. Upon these facts it was contended on behalf of the purchaser that the kabala having been executed on the 9th August, 1938, a right of pre-emption accrued in favour of the landlord under the old Act as soon as the conveyance was executed. This contention was repelled by the Court and it was held that the date of registration is the material date and no right of pre-emption could possibly accrue in favour of a co-sharer tenant after the Amendment of 1938 until the document of transfer was registered.