NURAL HOSSAIN MALLIK Vs. MIHILAL SHEIKH

JUDGEMENT

(1.) The principal question involved in this Rule is whether an application for pre-emption under Section 26F, Bengal Tenancy Act, can be entertained if the deposit contemplated by the section is not made at the time of making the application, but is made subsequently within the period of limitation. The question has arisen out of the following facts.

(2.) A certain occupancy holding was owned by the three opposite parties, of whom two namely opposite parties Nos. 2 and 3, sold their 8 annaa share to the petitioner on 17th February 1944. Notice of this sale was served on the remaining cosharer tenant, namely opposite party No. 1, on 12 December 1944. On 3 February 1945, he made an application under Section 26F, Ben. Tenancy Act, but did not, at the time of making the application, deposit in Court the amount of consideration money as stated in the notice together with the statutory compensation thereon. It appears that the fact that the deposit was not made was brought to the notice of the Court and an order was obtained by which the applicant was permitted to make the deposit by 3 March 1945. Actually, however, opposite party No. 1 did not wait all that time, but made the deposit on 6 February following.

(3.) The application for pre-emption was opposed by the petitioner on three grounds. It was contended in the first place that no deposit, as required by Sub-section (2) of Section 26F, having been made at the time of making the application, the application could not be entertained It was said in the second place that the applicant was not a co-sharer at all, since the purchase, in the strength of which he claimed to be a co-sharer, had been made prior to the year 1928 when occupancy holdings were not transferable and since he had not been recognised by the landlord as a tenant. It was contended lastly that the subject-matter of the transfer was not an occupancy holding at all and consequently no question of any application under Section 26F? could possibly arise.