SHANTI BALA DASI Vs. MADHAI KUNDU

JUDGEMENT

(1.) This is a petition under Section 115 of the Code of Civil Procedure against an order passed in an appeal allowing pre-emption under Section 26F of the Bengal Tenancy Act.

(2.) Sivadas Kundu, Opposite Party No.4 executed a registered Deed of Settlement in favour of the petitioner, who is the widow of a pre-deceased son of the said Sivadas Kundu and granted to her a life estate of the property now in dispute. On the 27th September, 1961 the said Sivadas executed a registered deed of sale with respect to his right to reversion in favour of the petitioner. The opposite parties Nos.1 to 4 thereafter applied for pre-emption under Section 26F of the Bengal Tenancy Act on the basis of the aforesaid sale. It was urged that the sale which is to be pre-empted was not a sale at all but a Benami transaction. But that point has been over-ruled by the final Court of fact and therefore that point was not urged in this Court. The trial Court further held that as the transferee was actually in possession under an earlier grant for her life the pre-emptor could not dispossess her and therefore, the application for pre-emption was dismissed. An appeal to the Court of appeal below was successful. The appeal Court held that as soon as the petitioner transferee got both life estate as well as a vested remainder there was a merger and the application for pre-emption would be maintainable. We do not very much appreciate this point of merger urged in the Court of Appeal below. This is not a merger within the meaning of Section 111 of the Transfer of Property Act. If there is merger otherwise than under Section 111 would be a question of intention but that question was not raised. Further, what was sought to be pre-empted was the latter kobala and the pre-emptee could not get anything more than what was transferred by the later kobala. The grant of life estate by the earlier document was not the subject-matter of pre-emption and we do not follow how could be pre-emptee get that right as well without paying for it.

(3.) Mr. Chittotosh Mukherjee, who appeared for the petitioner, has urged three points. The first point is that under Section 26F of the Bengal Tenancy Act the transferee being already a co-sharer otherwise than by purchase the transfer in question was not liable to be pre-empted. Secondly, even if pre-emption be available to the pre-emptor the pre-emptor could not get any thing more than what was sold and therefore, the pre-emptor could not get actual possession during the life time of the petitioner transferee and thirdly, pre-emption under Section 26F of the Bengal Tenancy Act cannot be availed of after the Estates Acquisition Act came into force.