SURYA KUMAR MITRA Vs. MUNSHI NOABALI

JUDGEMENT

(1.) The question which arises in this rule relates to the new provisions of Section 26 (p), Ben. Ten. Act, as amended by-Act 4 of 1928. This case illustrates one of the difficulties which arises in the working of the provisions of the Act. With great respect to the legislature I think that it seems to have left much that ought to have been stated for clarifying the provisions of the Act. In this case it appears that an occupancy holding was sold in execution of a money decree and was purchased by the decree-holder. The decree-holder had notices served on some of the cosharers landlords whom he named in the notices as contemplated by Section 26 (e), Clause 4 of the amended Act. He issued notices on five of the tenure-holders who were the immediate landlords of the raiyats whose occupancy holding had been sold by the compulsory sale. It is said that there are about 30 tenure-holders who are the immediate landlords of the raiyats. An application was made on 16 April 1930 by eight of the cosharers under Section 26 (f), Clause (1), for exercising their right of preemption. They applied that the entire holding be transferred to themselves. Of these eight persons who applied under Section 26 (f), two of them, namely Prokash Kumar Mitra and Chandra Kumar Mitra were served with notices under Section 26 (e), Clause (4), on 15 February 1930. The application of these two persons was filed evidently beyond the two months prescribed in Section 26 (f), Clause (1). The other six persons who joined alleged that they had received no notices under Section 26 (e), Clause (4) but they came to know of the sale in execution some time on 25 February 1930 and they joined in the application with Prokash Kumar Mitra and Chandra Kumar Mitra. The Munsif has thrown out the application on the preliminary ground that so far as Chandra Kumar and Prokash Kumar are concerned, the application is beyond two months and therefore not entertainable having regard to the provisions of Section 26 (f), Clause (1). He has also thrown out the application of the other six persons who alleged that they received no notices as their names do not appear in the notice under Section 26 (e), Clause (4). A rule has been obtained in this Court at the instance of seven out of eight applicants, one of thorn having died without leaving any issue. The present Rule has been applied for not only at the instance of the applicants oh whom notices were served but also on behalf of the rest.

(2.) It is said that one of the tenure-holders died and his heirs have been made parties to the present suit as petitioners. It is argued in support of this Rule that the Munsif has clearly acted without jurisdiction in refusing to entertain this application at the instance, at any rate, of those petitioners on whom notices wore not served under Section 26 (e), Clause (4). In order to consider the soundness of this contention, it is necessary to consider the scheme and policy of the amended provisions of the Bengal Tenancy Act. It appears to me that it was intended by B. 26 (f) to give a right of pre-emption to the landlord of an occupancy holding in case of transfer of the occupancy holding either by private treaty or in execution sales in favour of persons who are strangers to the holding. That is the principle which is recognized undoubtedly by the provisions of that section. But certain limitations are provided as to the time daring which this right must be exercised and it is said in that section that this right should be exercised within two months of the service of the notice under Section 26 (c) or Section 28 (e). The Act does not make any provision with regard to cases where no notice has been issued on persons who claim to be the landlords of the occupancy holding which has been sold as contemplated by Section 2(5 (c) or Section 26 (e). In such a state of things I think it would be right to construe the section as giving the right of pre-emption not only to those landlords on whom notices have been issued but also to those on whom notices have not been issued under Section 26 (c) or Section 26 (e) but who claimed to be the landlord of the occupancy holding--the right to be exercised within a reasonable time of the knowledge of the sale.

(3.) It cannot be contended that although the legislature intended clearly by the provisions of Section 26 (f) to give a right of pre-emption to the landlord, it could only be exercised by persons who would be described in the notices served through the Collector as the landlords of the holding although in reality there may be persons other than those named in the notices who are cosharers in the superior interest. This could not have been the intention of the legislature. In those circumstances I think it is right to treat the application of the petitioners other than Chandra Kumar and Prokash Kumar as an application made under Section 26 (f) for the exercise of the right of pre-emption, they not being the tenure holders who are in any way bound by the limitation provided for in that section, namely that the right has to be exercised within two months of the service of notice issued under Section 26 (c) or Section 26 (e). It is admitted that no notice has been served on them.