ABDUL HAI Vs. ABDUR RAHMAN

JUDGEMENT

(1.) The rule in this case was issued by this Court on an application arising out of a proceeding under Section 26-F, Ban. Ten. Act. The opposite parties in the Rule Syed Abdur Rahman and Syed Abdul Mannan filed an application before the Munsif, First Court, Kandi, District Murshidabad, to exercise the right of pre-emption, on deposit of a sum of Rs. 55 only, in regard to a sale of a holding in favour of the petitioner Syed Abdul Hai. The sale was in respect of the lands appertaining to the holding with structures standing thereon; in one part of the conveyance in favour of the petitioner, the value of the land was stated to be Rs. 50 and the structures were separately valued at Rs. 150. The consideration for the sale mentioned in the document and the purchase money paid by the petitioner was however Rs. 200. The application under Section 26-F before the Court was on the footing that the pre-emptors were only required to deposit the amount of consideration for the land appertaining to the holding sold, together with compensation at the rate of ten per cent on such amount, as mentioned in that provision of the law. The petitioner in this Court raised the objection before the Munsif, that the application under Section 26-F was not maintainable inasmuch as the pre-emptors were not entitled to et the property on depositing Rs. 55 as done by them; the petitioner's case before the Court below was that inasmuch as the entire purchase money paid by him, the amount of Rs. 200 with the amount of compensation payable under the law, had not been deposited, the application under Section 26-F must be dismissed.

(2.) The munsif, overruled the objection raised by the petitioner, on the ground that the structures on the land, although they were improvements as contemplated by Section 76, Ben. Ten. Act, could easily be dismantled, and it could not therefore be said, that they were inseparable from the tenancy. The Munsif further observed that in the Kabala, the value of the land and of the structures were separately specified, showing that the structures were separable from the land. In the above view of the case before it, the Court below allowed the application under Section 26-F, Ben. Ten. Act, overruling the objection of the petitioner. The main question raised in support of the rule, was that inasmuch as the entire purchase money with the statutory compensation was not deposited, the Court below acted illegally and with material irregularity in entertaining and granting the application under Section 26-F, Ben. Ten. Act. There is no question that the consideration for the sale to the petitioner of the holding with structures standing thereon which were improvements within the meaning of Section 76, Ben. Ten. Act was Rs. 200. The value of the land and the value of the structures were separately stated in the concluding part of the conveyance; and the points argued before me were three in No. 1. Does a holding as defined by the Bengal Tenancy Act include structures raised on the land forming the subject of a tenancy, structures which were improvements as contemplated by Section 76 of the Act? 2. What was the significance of the words consideration and value as used in Section 26-F, Ben. Ten. Act? 3. Could the applicant under Section 26-F, Ben. Ten. Act get relief without depositing the entire amount of consideration money mentioned in the conveyance and compensation as provided by that section?

(3.) For the purpose of this case, the definition of a holding as contained in the Bengal Tenancy Act has to be considered with the definition of improvement contained in that Act; and taking the two definitions together, an improvement used with reference to a holding, must, in my judgment, be considered to be appurtenant to a holding, and cannot be considered as something separable from the holding merely because the improvement in the shape of structures on the land are removable. The holding as contemplated by the Bengal Tenancy Act, and the holding in regard which an application under S, 26 F of the Act was entertainable, must be held to include structures raised on the same, if these structures fall within the category of improvements as contemplated by the Bengal Tenancy Act. In regard to the second point argued before me, there appears to be no question that consideration money as used in Section 26 E is the purchase money in cases of sales; the value of the property as mentioned in that section is referred to in case of exchange, gift or bequest, as specifically mentioned in Section 26D, Ben. Ten. Act. What is to be taken into account in the matter of deposit under Section 26F is the consideration money paid by the purchaser for which the property was sold. In the present case, the property was sold for Rs, 200/-the land which was subject of a tenancy was separately valued at Rs. 50/-the value of the structures standing on the land, improvements effected by the tenant, and which improvements were appurtenant to the tenancy, was stated to be Rs. 150/-What was required to be deposited by an applicant for pre-emption under the law was the entire consideration money for the sale of the property, the tenancy including the improvements in the shape of structures standing on the land forming the subject of the tenancy.