MUKTI DEVI Vs. MONORAMA MITRA

JUDGEMENT

(1.) This case raises interesting points of law and some of them are points of first impression. The matter has been very ably and fairly argued by Mr. Ahmed appearing on behalf of the petitioner, and although I am in substance holding against him it must not be taken that I have not taken into consideration the arguments he has advanced. Three points have been raised before me which I will state hereafter after setting out the relevant facts which are as follows: Abdul Malek Molla held an occupancy holding under a large number of co-sharer landlords. He sold a portion thereof by a registered instrument to the petitioner before me, Mukti Devi. The notice of transfer was duly served and within two months of the service of the said notice two sets of co-sharer landlords made two independent applications for pre-emption under Section 26.F, Ben. Ten. Act. The first of these applications was filed on 20 November 1934 by three of the co-sharer landlords, Sudhir Kanta Ghose, Kamakhya Prosad Ghose and Haridas Ghose. Most of the remaining co-sharer landlords, including one Monorama Mitra, was made opposite parties to this application, but this application was, as has been ultimately found by the Court, defective because one co-sharer landlord had not been made a party to this application. On 23 November 1934 another application was made under Section 26-F by Monorama Debi to whom two of the co-sharer landlords joined later on. In this application all the remaining co-sharer landlords or their benamidars were made parties. The first application was numbered Misc. Case No. 203 and the second Misc. Case No. 207 of 1934.

(2.) On 8 December 1934 Monorama who was a co.applicant on Misc. Case No. 207 made an application in Misc. Case No. 203 for joining as a co-applicant with the applicants of that case and this application of hers was granted on 8 December 1934. Case No. 203 then proceeded, but that case was ultimately dismissed by the Court on the ground that one of the co-sharer landlords had not been made a party to the application and therefore the application was not maintainable in view of the provisions of Section 188, Ben. Ten. Act. After the dismissal of the said application the application which was numbered 207 was proceeded with. The lower Court has allowed that the application, and it is against the order of the lower Court passed in that case, the present Rule has been granted.

(3.) It is necessary to state two other facts in connexion with Misc. Case No. 207 for the purpose of following the three points which have been raised by Mr. Ahmed. In that application Haridas, a co-sharer landlord, was made an opposite party. He was described as a minor, but no guardian was ever proposed or appointed. Later on an application was made on his behalf, unrepresented by any guardian, to become a co-applicant and that application was granted, and ultimately Haridas, described as a minor, but not in fact represented by a guardian or a next fried, continued on the record. One of the opposite parties to this application was Lalan Chandra Ghose. Later on two persons, Nirode Gopal Ghose and Nani Gopal Ghose, filed an application on 19 December 1934 to become co-applicants along with Monorama. They made their case that their benamidar was Lalan who had been named as an opposite party in Monorama's original application. They were allowed on "that date to become co-applicants in Mis. Case No. 207.