LOKEMAN ALI Vs. ABDUL MOTALEB

JUDGEMENT

(1.) This Rule was issued to show cause why an order passed under Section 26F, Bengal Tenancy Act should not be set aside or modified. The material facts are not in dispute. The petitioner Shek Lokman Ali was one of a number of co-sharers in possession of a rayati holding recorded in khatian No. 110 of Mouza Kaspai in the district of Birbhum having acquired his interest by purchase by a kobala, dated 12-2-1944, but registered on 5-6-1944. C.S. Plot No. 409 is one of the plots comprised in that rayati holding. Other lands of the holding were transferred by other cosharers to opposite party 1 Abdul Mota-lib by a registered kobala, dated 19-2-1944. Abdul Motalib again transferred these lands to opposite party 2 Samsuzzoha. Petitioner Shek Lokman Ali made an application under Section 26F (1) within four months of the transfer to Abdul Motalib but after the transfer by Abdul Motalib to Samsuzzoha and deposited the amount of the consideration money for which Abdul Motalib purchased, together with compensation. He made both Abdul Motalib and Samsuzzoha parties to the application. A preliminary objection was taken by Samsuzzoha that he was not a necessary party and this objection was allowed. Samsuzzoha's name was struck off; Shek Lokman Ali's application was allowed as against Abdul Motalib only, and the latter was allowed to withdraw the money in deposit "subject to equities that may be available against him". Shek Lokman Ali appealed; this appeal was dismissed with costs.

(2.) It seems to me clear that the petitioner Shek Lokman Ali being a cosharer tenant of the occupancy rayati holding both at the time of the transfer to Abdul Motalib and at the time of the transfer by Abdul Motalib to Samsuzzoha, and the transfers to Abdul Motalib and to Samsuzzoha not being within the exceptions mentioned in Section 26F(1), Bengal Tenancy Act, the petitioner Shek Lokman Ali is entitled to invoke the provisions of Section 26F and apply to the Court for the portion transferred to Abckil Motalib and to Samsuzzoha to be transferred to himself. Shek Lokman Ali was a cosharer of Abdul Motalib's vendors at the time of the transfer to Abdul Motalib; and he could certainly invoke the provisions of the section against Abdul Motalib at least up to the time when Abdul Motalib trans, ferred his interest to Samsuzzoha. Shek Lokman Ali, if he did not or ?ould not exercise his right against Abdul Motalib, became a cosharer with the latter and at the time of the transfer to Samsuzzoha could if he desired have exercised the right granted by the section as against Samsuzzoha alone. The question is whether when Shek Lokman sought to exercise his rights, under .the section in respect of the transfer to Abdul Motalib, other transferees from Abdul Motalib would be bound. In other words, did Samsuzzoha purchase the share of Abdul Motalib subject to the exercise of a right of pre-emp. tion by the cosharers of Abdul Motalib's vendors? The Courts below seem to have held that he did not.

(3.) There is no reported case exactly on all fours with this case. But there is a decision of Edgley J. in Civil Revn. case No. 788 of 1945 Girija Nath V/s. Ahamadali Sardar Reported in which deals with the ease of a subsequent transfer by the first transferee, the distinction between that case and the present being that the subsequent transfer was made after the application was made under Section 26F in that case, but before that application in the present case. Edgley J. observed: As soon as a transfer of a share in a holding is effected a right to pre-empt immediately accrues to the cosharer-tenants, and any subsequent transferee of the property must take it subject to that right.