BAIKUNTHA CHANDRA SAHA Vs. SHAMSUL HUQUE

JUDGEMENT

(1.) Although the amount at issue in this matter is very small the case raises one or two points of considerable interest and indeed of some public importance. The rule was directed against an order of the Munsif, 4 Court of Narayangunj, dated 19 June 1933, whereby he allowed an application made Under Section 26-F, Bengal Tenancy Act. The application was made by three persons: Samsul Huque also known as Arman Meah, Kurchhia Akhtar Bibi and Khosa Akhtar Khatun. The first two were the son and daughter of a man named Sahebdi Sarkar and the third was one of his widows. It appears that he also left another widow named Ahladi. As respondents to the application or, to use the expression which appears in Section 188, Bengal Tenancy Act, as parties defendant to the application, a number of other persons were described as the representatives in law of the two brothers of Sahebdi Sarkar who had been co-sharers with him in respect of the holding with which the application was concerned.

(2.) The present petitioners Baikuntha Chandra Saha and Prasanna Chandra Saha were also respondents to the application as being the transferees of the holding in question, they having purchased that holding at a sale held in execution of a decree in the second Court of the Subordinate Judge of Dacca. The price paid was Rs. 110 and the two Sahas as transferees had duly deposited on 5 July 1932, the landlord's fee of Rs. 33-1-0, the transmission fee of Rs. 3-6-0 and the process fee of Re. 1 for serving notices, making in all a sum of Rs. 37-7-0. That was done in accordance with the provisions of Section 26-C, Bengal Tenancy Act. As the sale had taken place in execution of a decree the matter fell within the purview of Section 26-B, Bengal Tenancy Act, and the application was therefore made subject to the provisions of Sub- section (1), Section 26-F as regards the time within which such an application ought to be made. The Sahas as the transferees of the holding contended at the hearing that the application was out of time in that if had not been made within two months of the service of notice as mentioned in that sub-section. They also contended that the application was not in order by reason of the provisions of Section 188, Bengal Tenancy Act, on the ground that although it was an application for preemption made by co-sharer landlords the whole of the landlord's interest was not fully represented by the persons who were parties to the proceedings either as applicants or as parties defendant.

(3.) Mr. Phanibhusan Chakraburty, who appeared in support of this rule, put before me a very able and cogent argument on both these points but as regards the first point he accepted the interpretation which I was disposed to put upon Section 26-F and ultimately conceded that my opinion was confirmed by a decision of Mitter, J., in the case of Suryya Kumar Mitra V/s. Munshi Noabali AIR 1932 Cal 239. It should be observed that the application was filed on 7 March 1933, by three applicants who were described by the Munsif as "minors and females". No notice such as is referred to in Section 26-F had been served on these co-sharer landlords at all, but in some manner or other the fact that a transfer had taken place evidently came to their knowledge and they made this application within about six months from the time when notices had been served on some of the other co-sharer landlords. Mr. Chakraburty was first disposed to argue and of course rightly from the point of view of his clients either that unless a notice was served the landlords could not make an application at all or that if a notice was served on some co-sharer landlords the other co-share landlords would be out of time after the lapse of the two months prescribed by Section 26-F. Mr. Chakraburty agrees however that there is a lacuna in the provisions of Section 26-F in that the section does not in terms indicate what is to be the position of co-sharer landlords in circumstances such as the present where they receive no formal notice as required by the Act but happen to hear of the transfer from some other source.