SONAMADDI Vs. PRAMADA SUNDARI SARKAR

JUDGEMENT

(1.) This is an application under S, 115, Civil P.C., by the transferee in a case under Section 26-F, Ben. Ten. Act. The facts of the case are peculiar. The petitioners are 12 annas co- sharers of a certain tenure and the opposite party are the 4 annas co-sharers of the same tenure. Within that tenure, there was a raiyati holding which the petitioners purchased at a price of Rs. 200 on 7 February 1936. Notice of the purchase together with the transfer-fee was sent to the opposite party on 16 June 1936. Thereupon the opposite party on 14th August 1936 made an application for pre-emption under Section 26-F and deposited the sum of Rs. 200 together with compensation of Rs. 20 at 10 per cent. Notice of this application was served on the petitioners on 11 September 1936. They made an application on 28th November 1936 objecting to the pre-emption by the petitioners and claiming pre-emption for themselves and urging that in any case the petitioners could only pre-empt 4 annas share of the holding. The trial Court rejected the defence pleas and allowed the pre-emption.

(2.) It has been strenuously urged by the learned advocate for the petitioners that the opposite party are not entitled to preempt more than 4 annas inasmuch as the transferees are the owners of 12 annas share of the superior tenure. This question does not appear to have been decided in any previous case. The nearest approach was the case in Khosal Chandra v. Upendra Nath . There the 4 annas co-sharer applied for pre-emption. After the application for pre-emption the transferee purchased a 16 gondas share of the superior tenure and applied for pre-emption for himself. It was held that he could pre-empt along with other applicants in the proportion of their shares. This case is different. Here the transferee was already a co- sharer of the superior tenure to the extent of 12 annas. The question is whether the fact that the petitioners were 12 annas co-sharers would thereby exclude the raiyati holding which they purchased from pre-emption to the extent of the 12 annas share. This argument, though attractive, is not borne out by a plain reading of Section 26-F. By Sub-section 2 the applicant, whether he be the sole landlord or a co-sharer landlord, must pay the whole amount of the consideration money together with 10 per cent, compensation. This shows that if no other co- sharer joins in the application the co-sharer who applies will get the whole of the holding for himself. As for the transferee being one of the co-sharers, provision is made under Sub- section (4)(a) where it is stated: When an application has been made by a co-sharer immediate landlord under Sub- section (1), any of the remaining co-sharer landlords, including the transferee, if one of them, may within the period of two months from the notice or within one month of the application, whichever is later, apply to join in the application of the co-sharer immediate landlord.

(3.) Thus the transferee even though he be a co-sharer landlord will not save his proportionate share of the holding from pre-emption unless he applies under subsection (4)(a). This is provided by that very sub-section which says: Any co-sharer landlord who has not applied to join under this sub-section shall not have any further power of purchase under this section.