MOHINI MOHAN MITRA Vs. RADHA SUNDARI DASI

JUDGEMENT

(1.) This rule has been obtained by two out of many cosharer landlords whose application for pre-emption made under Section 26-F, Ben. Ten. Act, has been dismissed by the learned Munsiff of Dubrajpur. Opposite parties 2 to 5 had a tenancy under the petitioners and opposite parties. 6 to 41. On 7 April 1933 they sold to opposite party 1.13 acres of land out of the said tenancy. In the conveyance the description of the property sold was given as a ryoti holding. A notice of transfer under the provisions of Section 26-C was given to the landlords and the landlord's transfer fee prescribed by Section 26-D, Ben. Ten. Act was also deposited. On 8 August 1933 the petitioners received the said notice of transfer and on the reopening of the civil Courts on 23 October 1933 they made the application for pre-emption. It does not appear whether the notice of transfer was served upon Sasadhar Mitra, one of the cosharer landlords who had been made a proforma defendant to the application for pre- emption. At least there is no specific finding of the learned Munsiff on the point. The cosharer landlords who had been made defendants also applied for pre-emption but their claims have been dismissed by the learned Munsiff on the ground of limitation. It will be necessary to consider the claim of opposite party 16, who is the legal representative of Sasadhar Mitter who died on 10 November 1933.

(2.) The main defence of opposite party 1 was that Section 26-F was not applicable at all as the lands transferred according to him do not form part of an agricultural tenancy. She contends that the tenancy of opposite parties 2 to 5 was taken for residential purposes, and is not governed by the provisions of the Bengal Tenancy Act at all. The learned Munsiff has found as a fact that the said tenancy is governed by the provisions of the Transfer of Property Act and has on that ground dismissed the application for preemption. It was contended before him, as it is before me, that the opposite party 1 was not entitled to raise in these proceedings the question of the nature and character of the tenancy. Mr. Dass who has appeared in support of the rule has placed his contentions on two grounds, namely that (1) in proceedings under Section 26-F, Ben. Ten. Act, the inquiry is limited to the matters mentioned in sub-Ss. 2 and 3, Section 26-F and the Court cannot travel beyond the matters specified therein. His contention comes to this, that when an application for pre-emption has been made, the Court has to determine the following questions only: (a) as to whether the money deposited by the applicant falls short of the price stated in the notice and the compensation, (b) what amount of rent has been paid by the transferee after the date of the transfer, (c) what amount has been paid for annulling encumbrances and (d) the rate of interest that the applicant for pre- emption will have to pay on items (b) and (c). Although the view I am taking on the second contention of Mr. Dass renders it unnecessary for me to decide the said question, I am of opinion that this contention of Mr. Dass cannot be given effect to. The reported cases show that various other questions have been allowed to be raised in proceedings arising under Section 26-F. For instance, questions of defect of parties, and as to whether the sale was one taken in benami for the benefit of a cosharer tenant, have been allowed to be raised in such proceedings. In Nabendra Kishore Roy V/s. Abdul Majid, Civil Rule No. 1324 of 1934 Decided on 19 February 1934 I have myself held that the last mentioned question could be raised and the benami being proved, the application for pre-emption was dismissed. No doubt Henderson, J., has by his judgment delivered on 14 March 1935 held in Nibaran Chandra Bhattacharya V/s. Hem Nalini Debi, Civil Rule No. 1700 of 1934 Decided on 14 March 1935 that in proceedings for pre-emption under Section 26-F, the Court can only go into the matters specified in Section 26-F sub-Ss. (2) and (3). There, an application for pre-emption was made. Both the transferor and transferee pleaded that the sale was a fictitious one and no title was intended to pass or had passed. Henderson, J., held that the transfer had no locus standi in those proceedings which he said was of a summary nature and remarked that the aforesaid question falls beyond the scope of the inquiry. He however remarked that the order for pre- emption would not give the successful applicant possession and that the said question can be raised in a subsequent suit for possession. I do not see why a landlord who has obtained an order for pr-emption will have to bring a suit for possession. He would obtain possession in execution of the order for pre-emption under the provisions of Sub-section 6, Clause (3), Section 26-F. The executing Count in executing the order for pre-emption would not be able to go behind the order. I do not see how after the landlord has been put in possession in execution of the order for pre-emption a suit to recover possession from him would lie or be successful. The pre-emption order will have to be vacated or got round in order that such a suit may be successful. The right of pre-emption has been created by statute which has also defined the procedure for enforcing the right. According to well established principles the jurisdiction conferred on the Court by Section 26-F would be exclusive and its decision would be final. The decision given by Henderson, J., in the said rule may be supported on different principles and will have to be carefully considered if the question, as to whether such a plea as was taken by the transferee in the case that came up before him would be admissible in preemption proceedings, again comes up for consideration before this Court. But it is not necessary to consider the matter further as I have stated before that this rule can be decided on the second point raised by Mr. Dass. However I hold that it cannot be asserted broadly that the inquiry in the proceedings under Section 26-F is to be limited only to the matters mentioned in sub-Ss. (2) and (3) of the said section.

(3.) The second ground urged by Mr. Dass is based on estoppel. He says that the transferee cannot go back upon the statements made in the notice of transfer as to the nature of the tenancy and having purchased a property with the specific description that it is an occupancy holding cannot turn round and defeat the application for pre-emption by stating and proving that the tenancy purchased was of a different nature. In order to attract the doctrine of estoppel there must be representation of a fact and on the faith of that representation an act must be done. These two factors prima facie attract that doctrine. It would not be applied if the real state of facts, which is at variance with the facts represented, be known by the party pleading estoppel. It would not be applied also to defeat a statutory enactment on the principle that there is no estoppel against statute. It is on these principles the decision given in Brajendra Kumar Banerjee V/s. Symannessa Bibi, 1934 Cal 830 and Adhar Chandra Shaha v. Gour Chandra Shaha 1935 Cal 153 can be supported, for if the transferee had been held bound by the statements in the notice of transfer as to the number and names of the landlords on the principle of estoppel, Section 188, Bengal Tenancy Act, would have been made nugatory in such cases. In one of these cases also, the facts indicate that the applicant for pre-emption knew who his cosharer landlords were, and that the persons mentioned as landlords in the notice of transfer were not all the landlords of the holding. It is also on the principle that there cannot be estoppel against statute that I based my decision in Nabendra Kishore Roy V/s. Abdul Majid, Civil Rule No. 1324 of 1934 Decided on 19 February 1934. In the case before me representation of a fact was made by the transferee that the tenancy was an occupancy holding; the petitioners acted on the faith of that representation by making the application for pre-emption. It is not pleaded, nor is there any proof or a finding that the said applicants knew that the tenancy was not an occupancy holding, and there is no statutory provision which would be defeated by allowing estoppel to operate. I hold accordingly that it was not open to the opposite party 1 to plead or prove in these proceedings that the tenancy was governed by the Transfer of Property Act. The case before me comes within the principle enunciated by Suhrawardy and Costello, J J., in Surendra Nath Laik V/s. Notan Behary Mandal, 1931 Cal 483. I accordingly hold that the learned Munsif was wrong in dismissing the application for pre-emption made by the petitioners.