MOHAMMAD GORIB HOSSAIN MIA Vs. SMHALIMANNESSA BIBI

JUDGEMENT

(1.) This rule arises out of an order passed in a proceeding under Section 26-F Ben. Ten. Act. Opposite party No. 1 is the transferee of an occupancy raiyati holding. Petitioner is one of the immediate cosharer landlords of that holding. On 14 May 1934 petitioner made an application under Section 26-F (1) praying that the holding be transferred to himself. The transferee and five of the petitioner's co-sharers, were made defendants in that application. On 21 June 1934 the transferee filed a petition of objection and pointed out therein that there were 23 co-sharers of the petitioner of whom only 5 had been made parties.

(2.) On 30 July 1934 petitioner applied to add the 18 co-sharers named in the transferees's objection, as parties defendants and was permitted to do so. The Munsif who heard the application held that petitioner was well aware that he had co-sharers who were not made parties before 30 July 1934, and that as all the co-sharers were not made parties within two months of the service of notice under Section 26-C, nor within one month of the date of application under Section 26-F (1), the application was time barred. The Munsif accordingly rejected the application under Section 26-F (1). Against that order the present rule has been obtained. It has been contended on behalf of the petitioner that no period of limitation has been prescribed within which cosharer landlords are to be made parties to the proceeding under Section 26-F (1), and that the Munsif was wrong in rejecting the application on the ground of limitation. The Munsif's decision is based on an interpretation of Secs.26-F and 188, Ben. Ten. Act, and it is with those two sections that we are concerned. In the first place the advocate for the petitioner has argued that Section 188 has no application to a proceeding under Section 26-F. He argues that Section 188 applies only to proceedings in which action by the sole landlord or by the entire body of landlords acting together is contemplated: that it does not apply to proceedings in which a single cosharer is entitled to act. Inasmuch as Section 26 F (1) permits an application by a cosharer it is not necessary for the application to be made by the whole body of landlords. I am unable to accept this view. In the first place if Section 188 had no application to such a proceeding under Section 26-F the proviso to the section would not have been made applicable to a proceeding under Section 26-F (1). In the second place it has been held in Baikantha Chandra V/s. Samsul Haq 1934 Cal 662 that Section 188 does govern Section 26-F and no other authority on the question has been cited. I am satisfied therefore that Section 188 governs proceedings under Section 26-F. Section 188, Ben. Ten. Act, reads as follows: Subject to the provisions of Section 148-A, where two or more persons are cosharer landlords, anything which the landlord is under this Act, required or authorised to do must be done either by both or all those persons acting together or by an agent authorised to act on behalf of both or all of them. Provided that one or more cosharer landlords, if all the other cosharer landlords are made parties defendant to the suit or proceeding in manner provided in Sub- sections. (1) and (2), Section 148-A and are given the opportunity of joining in the suit or proceeding as co-plaintiffs or co-applicants, may (1) file an application under Sub-section (1), Section 26-F.......

(3.) This section contemplates that an application to pre-empt under Section 26-F (1) shall ordinarily be made by the whole body of cosharer landlords acting together. One or more co- sharers, not being the whole body of cosharer landlords, may however make an application under Section 26 F (1) provided that certain conditions are fulfilled. If those conditions be not fulfilled, such co-sharers are not entitled to pre-empt under Section 26-F. The conditions to be fulfilled are (1) that all the other cosharer landlords be made parties defendant to the proceeding; and (2) that all the other cosharer landlords be given an opportunity of joining in the proceeding as co-applicants. The first of the conditions is designed to inform all the interested co-sharers of the proceeding and to enable them to note the result and correct their collection papers and records if necessary. This objection would be attained if the co-sharers were made parties at any time before final orders on the application were passed.