ABDUL JALIL Vs. MAHAMUDA KHATUN

JUDGEMENT

(1.) This rule is directed against an order by which an application made by the petitioners under Section 26-F, Bengal Tenancy. Act, to have the share of a holding transferred to them, was refused. The petitioners are the landlords and the opposite party No. 2 is one of the tenants in respect of the holding under them. In 1931 the opposite party 2 sold his share to his wife, the opposite party 1, for Rs. 40 and it was for the transfer of this share to them that the petitioners applied under Section 26(F) The petitioner's application was refused on the ground that the opposite party 1 had been a cosharer in the tenancy from 1927 and according to the learned Munsif the transfer to the opposite party 1 was protected by the provisions of Clause 1(a), Section 26(F). Clause 1(a) could protect the transfer if the interest of opposite party 1, which was existing at the time, had nob been acquired by purchase. But Ex. 1 (a kobala) shows that it was by purchase that that interest had been acquired. That being so Clause 1(a) afforded no protection to the transfer of 1931.

(2.) Mr. Sen for the opposite party contended that the wife was not a co-owner of the tenancy as the transfer in her favour in 1927 had been made without the consent of the landlords. But it appears that the petitioners recognized the wife as a cosharer tenant by realizing rent from her subsequent to the transfer in her favour in 1927 and before 1929 when the New Bengal Tenancy Act came into force. Mr. Sen as a last resort drew our attention to Sub-section (8), Section. 26-F and contended that under the general law of pre-emption the opposite party 1 had the right to purchase the share which was transferred to her in 1931, the parties being all Mahomedans. But such a right would accrue only after the property had been sold to another person and not before. The general law about the right of pre-emption would not therefore be of any help to the opposite parties at present. The rule is therefore made absolute with costs one gold mohur. Let the transfer be allowed as provided for in Section 26-F, Ben. Ten Act. Jack, J.

(3.) I agree.