RAI NALINAKSHA DUTTA BAHADUR Vs. KAZI ABDUL JALIL

JUDGEMENT

(1.) This appeal raises a question, so far as I am aware, of first impression. The position is that six persons, namely Surman Mondal Kola and five others, who may conveniently be called the Kolas, had an interest in an occupancy holding; Muhamed Soleman was their co-sharer in the said holding. They are all Muhamedans. On 4 April 1934 the Kolas sold their share in the holding to opposite parties 1 to 3 who are also Muhamedans. The notice of this transfer was served upon the landlord, the petitioner before me.

(2.) On getting the notice the petitioner made an application for pre-emption under Section 26-F, Tenancy Act, in the Court of the Second Munsif at Krishnagar on 6 June 1934. The transferees, namely opposite parties 1 to 3, were made parties defendants to that application. While this application was pending Muhamad Soleman instituted in the same Court a suit to enforce the right which he had to pre-empt under the Mahomedanlaw. The landlord was made defendant 10. This suit for pre-emption and the application under Section 26-F were heard together and one judgment was pronounced. In dealing with the suit for pre-emption the learned Munsif came to the conclusion that the landlord, the petitioner before me, was not a necessary party. He came to the conclusion that Mohamad Soleman was a co-sharer of the Kolas and he had become a co-sharer not by purchase but by inheritance from his maternal grandfather who was a cosharer of the predecessor of Surman and five other Kolas. The learned Munsif made a decree for pre-emption in favour of Mohamed Soleman and directed him to put in the consideration money for which the Kolas transferred the property, with interest together with costs of conveyance and registration, within a fortnight from the date of the judgment. The money was put in by Mohamed Soleman within time. Therefore he has got an absolute decree for pre-emption in his favour. The decree was given on the basis that as a co-sharer in the property he had got the right of pre-emption both the transferors and the transferees being Mohamadans.

(3.) After disposing of the suit for preemption, the learned Munsif took up the application for pre-emption under Section 26-F. He came to the conclusion that the petitioner had not in the circumstances of the case any right of pre-emption because of Sub-section 8 of that section. In my judgment the order is correct. By reason of the pre-emption decree passed in the pre- emption suit the transferees, opposite parties 1 to 3, ceased to have any right, title and interest in the property purchased by them since Mohamed Soleman has complied with the decree for pre-emption by putting in Court the necessary money. The title to that part of the holding which belonged to the Kolas is now in Mohamed Soleman and is not in opposite parties 1 to 3. Section 26-F, Sub-section (1), Clause (a) enacts that when the transferee of an occupancy holding is a co-sharer in the tenancy whose existing interest has accrued otherwise than by purchase, the landlord has no right to pre-empt. In the present case Mohamed Soleman, who has now acquired the interest of the Kolas by reason of the decree in his suit for pre-emption, is a cosharer and he had derived his character as co-sharer tenant by inheritance. Subsection ( 5) of the said section deals with the making of an order for pre- emption in favour of the immediate landlord, and Sub-section (6) deals with the effect of such an order. That Sub-section says: From the date of the making of the order under Sub-section (5), the right, title and interest in the holding or portion or share thereof accruing to the transferee from the transfer shall . . . be deemed to have vested in the immediate landlord and co- sharer immediate landlord, if any, whose application has been allowed, &c.