CHOUDHURY MAHENDRA NATH DAS Vs. RADHASHYAM MANDAL

JUDGEMENT

(1.) These are two petitions under Section 115, Civil P.C., against two decisions in analogous cases under Section 26-F, Ben. Ten. Act. The facts are that opposite party No. 1 purchased two holdings from two different raiyats and in the deeds of sale as well as notices served under Section 26-C, Ben. Ten. Act, the three petitioners were described as the landlords of the holdings. On notices being served upon them, the three petitioners applied under Section 26-F claiming to pre-empt the two holdings. Opposite party No. 1 opposed the application for pre- emption on the grounds: (1) that the petitioners were not the landlords of the holdings, but that a certain idol was the landlord, the petitioners being merely shebaits of that idol and the idol not having been made a party to the applications, the applications were not maintainable; and (2) that the petitioners were governed by the Mitakshara School of Hindu law and their petitions were not maintainable inasmuch as they had not impleaded their sons and nephews, who according to the Mitakshara School of Hindu law became their co-sharers since they were born. Both these grounds were found in favour of the opposite party and the trial Court has dismissed the two applications.

(2.) Upon hearing the learned advocates it appears that though the opposite party is not estopped by the recitals in the transfer deeds, yet there is something fishy about his objections. If he really thought that the idol was the proprietor and the petitioners were only the shebaits, he should have stated accordingly in the transfer deeds. In two cases Adhar Chandra Saha V/s. Gour Chandra Saha and Prohlad Chandra Manna V/s. Khirod Chandra Jana (1935) 39 C W N 862, S.K. Ghose, J. has held that the transferee is not estopped from raising the plea that there are in fact other co-sharers and the application is incompetent by reason of their being not joined as parties. The present cases are stronger than the cases cited above. In the transfer deeds the three petitioners were stated to be the landlords. Now it is said that they are not the landlords but an idol is the landlord; they are merely the shebaits. If this be the fact, the opposite party must have known it at the time of the transfer deeds. Then he recited the names of the petitioners with a fraudulent intention. As a matter of fact, it is urged for the petitioners that it is extremely doubtful whether the idol may be taken to be the real proprietor, for though in rent receipts and other documents the petitioners described themselves as shebaits of the idol Gopi Mohan, in the register of revenue free lands maintained by the Collector the petitioners themselves and not the idol are shown as proprietors. In the circumstances in my opinion the learned Munsif was wrong to accept this ground for throwing out the petitions. It is wrong to reject the petitions merely because they have not described themselves as shebaits of the idol Gopi Mohan.

(3.) The next point is that as they are members of a Mitakshara family, their petitions are not maintainable inasmuch as they have not joined their sons and nephews as co-sharers. This point in my opinion is without any merit. These are the adult members who actually manage the properties. Their sons and minors lived under their care and though according to the Mitakshara law they are co-sharers, yet the petitioners who are their elders must be held to be the actual managers on behalf of their sons and nephews: see the case in Satiprosad Garga v. Kalipada Das AIR 1922 Cal 468. It is wrong to reject these petitions merely because the sons and nephews have not been impleaded. These petitions, if they succeed, will benefit those sons and nephews Nothing that the petitioners are doing is adverse to those sons and nephews. In the result the rules are made absolute. There will be no order as to costs in this Court.