SATYENDRA NATH RAI CHAUDHURY Vs. FULSOM BIBI

JUDGEMENT

(1.) This rule was obtained at the instance of the landlord and arises out of an application made by him claiming to exercise the right of preemption under Section 26-F, Ben. Ten. Act. It appears that one Fulsom Bewa who was the holder of an occupancy holding transferred the same by a deed which is described as a Hebabilewaz to Nazam Mallik who is one of the opposite parties in the present application. The deed of gift or the Hebabilewaz was executed by Fulsom in consideration of Nazam executing in her favour another deed by which Nazam agreed to pay Rs. 5 (rupees five) per month for Pulaom's maintenance. This deed was also executed and registered on the same day on which the Hebabilewaz; was executed. A notice was issued on the landlord under Section 26 (c), Ben. Ten. Act, and he has applied within one month of the date of the notice for claiming to exercise the right of pre-emption, The Munsif is of opinion that in ordinary circumstances the execution and registration of the deed would have been sufficient to entitle the landlord to his right of preemption. But he says possession is still with Fulsom and that subsequent to the execution and registration of the Heba-bil ewaz evidence shows that Fulsom took back the deed. The Munsif is also of opinion that Ex. B., which was the second deed executed by Fulsom was not acted upon although it was duly executed and registered. The Munsif has clearly fallen into an error in supposing that in case of Hebabilewaz possession is required to be transferred. It is now fairly established on the authorities that a Hebabilewaz as distinguished from a heba, a gift pure and simple, is a gift for consideration. It is in reality a sale and has all the incidents and conditions of a sale. Possession was not essential for a complete transfer as it is not a case of Heba. Reference may be made in this connexion to a recent decision of their Lordships of the Privy Council in the case of Hitendra Singh V/s. Maharaja of Darbhanga A.I.R. 1928 P.C. 112. Two conditions however must concur in order that a Hebabilewaz, can be valid, namely, that there must be an actual payment of the consideration on the part of the donee and that there must be a bona fide intention on the part of the donor to divest himself in praesenti of the rights in the property and to confer the same on the donee. These two elements no doubt exist in the present case. It was after notice was issued on the landlord under the provisions of Section 26 (c) on the footing that the transactions were valid and had been acted upon that the landlord proceeded to exercise the right of preemption. I do not think that it is open to the Munsif to go into the further question as to what had happened between the parties after the issue of notice under Section 26 (c), Ben. Ten. Act. The Munsif evidently was misled , in his view of the law.

(2.) In these circumstances the order of the Munsif refusing the application under Section 26 (P) and dated 10 November 1930, must be set aside and the application of the petitioner under Section 26(F) should be granted. The Munsif will take such further steps as may be necessary to carry out the directions given above.

(3.) This Rule is not opposed. There will be no orders as to costs. The record may be sent down as early as possible.