The Judgment of the Court was delivered by
Mukherjea, J.:— This Rule is directed against an appellate judgment off K.M Islam, Esq., 2nd Sub-Judge, Barisal, dated the 24th May, 1946, by which he affirmed an order of dismissal made by the Munsif, 5th Court of that place, of an application presented by the Petitioner under sec. 26F, Bengal Tenancy Act.
2. The facts material for our present purposes lie within a short compass and may be stated as follows:—
There are two occupancy holdings recorded in Khatians 12 and 38 of a certain mouza, which belonged jointly to the Petitioner and Opposite Parties Nos. 4-7. On 23rd January, 1942, the Opposite Parties Nos. 4 and 5 transferred their interest in both the holdings by way of out-and-out sale to Opposite Parties Nos. 1-3, the consideration money being stated to be Rs. 100 in one of the kobalas and Rs. 200 in the other. It is admitted that no notice under sec. 26C(4), (Bengal Tenancy Act was served upon the Petitioner. On 16th December, 1943, the Petitioner presented an application for purchase of the share conveyed to Opposite Parties Nos. 1-3 under sec. 26F, Bengal Tenancy Act, and it was stated in the application that he came to be aware of the sale for the first time on 30th November, 1943. The application was resisted by the purchasers on a twofold ground. It was said in the first place, that the applicant was not a co-sharer tenant and hence had no locus standi to present the application. The other ground taken was that the application was time-barred.
3. The trial Court decided the first point in favour of the Petitioner and held that he was a co-sharer tenant and hence entitled to apply for pre-emption under sec. 26F, Bengal Tenancy Act. On the other point, however, the decision was against him and it was held that as the Petitioner was aware of the sale long before November, 1943, and did not come to Court within four months from the date of his knowledge, the application was time-barred. On appeal this decision was affirmed by the Sub-Judge, Barisal. The Petitioner has now come up on revision to this Court. The rule originally came up for hearing before one of us sitting singly and it was referred to a Division Bench. As the case involves certain points of law with regard to which there appear to be no clear provisions in sec. 26F, Bengal Tenancy Act, it has been heard by this Bench of three Judges along with other cases involving similar points, under the direction of the Hon'ble the Chief Justice.
4. The questions requiring decision in this case ate certainly not free from difficulty, and before we advert to the arguments that have been advanced by the learned Advocates appearing for the parties, it would be necessary, we think, to examine carefully the language of the section itself. Sec. 26F was first introduced into the Bengal Tenancy Act by Bengal Act IV of 1928, which made all occupancy holdings transferable in law subject to the conditions prescribed by the amending Act. As it was then framed, sec. 26F gave a right of pre-emption to he immediate landlord of the occupancy holding, when the holding was transferred by the tenant, except in certain cases specified in the section, and the procedure for enforcing the right was laid down in the section itself. This was changed in 1938, and by Bengal Act VI of 1938, the landlord's right of pre-emption was taken away and in place of that a right of pre-emption was given to co-sharer tenants, when a portion or share of the holding was transferred by the other co-sharers. The substantive provision of the old sec. 26F was dropped altogether but subject to necessary alterations the language of the old section was repeated in the new and practically the same procedure was laid down for enforcing the right of pre-emption by a co-sharer tenant which was to be adopted by the landlord under the old section.
5. Sec. 26F(1) as it now stands, provides, that except in cases of transfer of certain kinds which are enumerated in cls. (c) to (e)
“one or more co-sharer tenants of the holding, a portion or share of which is transferred, may, within four months of the service of notice under see. 26 C, apply to the Court for the said portion or share to he transferred to himself or themselves”
6. Sub-sec. (2) lays down that
“the application shall be dismissed unless the applicant or applicants at the time of making it, deposit in Court the amount of the consideration money or the value of the transferred portion or share of the holding, as stated in the said notice, together with compensation at the rate of ten per cent, of such amount”.
7. The rest of the section is not material for our present purpose.
8. The first question that has been raised before us is whether a co-sharer tenant upon whom no notice of transfer has been served has at all a legal right to pre-empt under sec. 26F(1), Bengal Tenancy Act. If the service of notice under sec. 26C is a condition precedent to the exercise of the right of pre-emption, the present Petitioner would be admittedly out of Court, as no notice of transfer was at all issued in this case.
9. If it be held that the right of pre-emption is not dependent on the service of the notice of transfer, the next question which arises for consideration is whether the remedy laid down in sec. 26F is available to a co-sharer tenant, who has not been served with a notice of transfer. Can it be said that in such cases the remedy is by way of an ordinary suit in the Civil Court?
10. If it be decided that for both the notified and the non-notified co-sharer the remedy is the same, viz., by way of application as provided for in the section, the last and the most important question for consideration is, what is the period of time within which an application by a co-sharer not served with notice of transfer, has got to be filed? If there is no provision in the section regarding the limit of time in such cases is it necessary that the application must be filed within four months or within a reasonable period of his actually getting knowledge of transfer?
11. We will take up these three points one after another.
12. It does not admit of any dispute that the language of the section is extremely unhappy and it is a matter of surprise that although difficulties arising out of bad draftsmanship were pointed out, in more cases than one decided under the old sec. 26F, practically the same language was reproduced in the new section without any attempt at removing the defects.
13. The first question is whether the right of pre-emption under sec. 26F, Bengal Tenancy Act can be exercised by a co-sharer tenant who has not been served with a notice of transfer under sec. 26C of the Act. The obvious intention underlying the section is to prevent a stranger from entering into the family group of tenants, and if this intention is to be given effect, no distinction between notified and non-notified co-sharers can properly or legitimately be made. If the right to apply for pre-emption arises only when a co-sharer is served with notice under sec. 26C, Bengal Tenancy Act nothing would be easier for the purchaser than to withhold such notice and render the operation of the section altogether nugatory. That the right of pre-emption given by sec. 26F is not dependent on service of the notice of transfer would be apparent from the provision o| sec. 26 (c)(4) itself which says that notice is to be given only in cases where the provisions of sec. 26F(1) apply. The whole difficulty is created by the fact that the provision as regards time has been interpolated between two parts of the section, which confers on the co-sharer the right to apply for pre-emption. This is undoubtedly bad draftsmanship, but we think that having regard to the clear intention which the legislature had in enacting sec. 26F and the provision of sec. 26C(4) itself, we should hold that the right to apply for pre-emption is given by sec. 26F(1) to all co-sharer tenants irrespective of the fact whether the notice under sec. 26C is served or not. The provision relating to time is in our opinion a separate and an independent provision which is not an essential condition of the exercise of the right, but merely imposes a limit of time with regard to applications filed by co-sharers served with notice of the transfer. The right accrues as soon as the transfer is made. The first point, therefore, is decided in favour of the Petitioner.
14. The second point that is raised on behalf of the Opposite Party does not seem to present much difficulty. The right of pre-emption exercisable by a co-sharer tenant has been created for the first time by sec. 26F of the Bengal Tenancy Amendment Act of 1938, and the section itself lays down as to how the right is to be enforced. In these circumstances the remedy by way of application as provided for by the section should be deemed to be exclusive and the ordinary right of suit must be held to be barred. As Lord Tenterden, C.J, observed in Deo. d. Bishop of Rochester v. Brides(1).
“Where an act creates an obligation, and enforces the performance in a specified manner, we take lit to be a general rule that performance cannot be enforced in any other manner. If an obligation is created but no mode of enforcing its performance is ordained, the common law may in general, find a mode suited to the particular nature of the case”.
15. The same principle was enunciated by Willes, J., in Wolverhampton New Water Works Co. v. Hawkesford(2) and was followed by the Judicial Committee in Attorney-General of Trinidad & Tobago v. Gordon Grant & Co.(3). As we have held that even a co-sharer who has not been served with a notice of transfer comes within the provision of sec. 26F(1), Bengal Tenancy Act, the only way by which he can enforce his right to apply for pre-emption as laid down in the section.
16. It was contended by the learned Advocate for the Opposite Party that sub-sec. (2) of sec. 26F which insists on the applicants' depositing the consideration money as stated in the notice of transfer, would go to show that the provision of the sub-section was never intended to be made applicable to a co-sharer not served with notice. This is undoubtedly another defect in draftsmanship, and the legislature seems to have assumed that notice of transfer would in all cases be served upon the co-sharers of the vendor. We do not think, however, that it would be impossible for a non-notified co-sharer to comply with the provision of sub-sec. (2) of sec. 26F. All that the sub-section says is that that the application shall be dismissed in limine unless the applicant deposits in Court the value of the property or the amount of consideration money as stated in the notice under sec. 26C together with 10 per cent of the sum as compensation. The value or consideration money specified in the notice must, subject to any clerical or arithmetical error which Court can always rectify, be the same as the value or consideration stated in the instrument of transfer. The applicant even though he might not get any notice under sec. 26C must be acquainted with the contents of the deed of transfer before he files the application, and it would be a sufficient compliance with the requirement of sub-sec. (2), if the amount stated in the conveyance is deposited. In our opinion the language of sub-sec. (2) of sec. 26b is not such as to compel the inference that the legislature did not intend to make the remedy by way of application available to a co-sharer who was not served with a notice under sec. 26C.
17. The third and the most material point which arises for our consideration is as to what is the period of limitation when an application for pre-emption is made by a co-sharer tenant who has not been served with a notice of transfer under sec. 26C.
18. Sec. 26F(1) as stated above, imposes a bar of time with regard to applications by co-sharers who are served with notice of transfer. They have got to come within four months from the service of notice. The section says nothing about co-sharers not served with notice though with regard to them as we have said above, the right to apply does not depend upon service of the notice of transfer. Under old sec. 26F which related to the right of pre-emption exercisable by the landlord, the landlord had to come within two months of the service of notice under sec 26C, Bengal Tenancy Act, and it was held in a number of cases, all of which were decided by Judges sitting singly that if the landlord was not served with a notice of transfer, he was bound to apply within a reasonable time of his knowledge of the transfer. The first decision on this point is that of Mr. Justice D.N Matter in Suryya Kumar v. Munshi Noabali(4). This was followed by Mr. Justice Costello in Baikuntha v. Samul Huq(5) and noticed without dissent by Mr. Justice S.K Ghosh in Brajendra Kumar Banerji v. Sm. Syamannessa(6).
19. So far as the present sec. 26F is concerned it was held by Mr. Justice Henderson in Ayetunnessa v. Jahar Ali(7) that the same principle would apply and that a co-sharer tenant, who was not served with notice should apply within a reasonable time from his knowledge of the sale.
20. What is reasonable time, would of course have to be determined on the facts and circumstances of each particular case but as a matter of practice the rule that is generally followed by lower Courts is, that the applicant must come at least within 4 months from his knowledge of the transfer, and any delay beyond that is considered to be unreasonable. We have to consider whether the view taken in the cases referred to above, can be accepted as correct. A suggestion was put forward by the learned Advocate for the Opposite Party that although the legislature has not specifically prescribed any period of limitation within which an application by a non-notified co-sharer is to be filed, the Court should in such cases take the period of limitation to be the same as in the case of a notified co-sharer, vis., 4 months, and the only difference would Be that the starting point instead of being reckoned from the service of notice would be counted from the date of knowledge of the transfer. It is argued that the object of the notice is to acquaint the co-sharer of the fact of the sale, and if he has got knowledge aliunde he cannot claim more than 4 months from the date of his knowledge. This suggestion we feel unable to accept. It is against sound canons of construction to enlarge the scope of a statute of limitation by importing into it words which are not found there. It was held by then-Lordships of the Privy Council that a statute of Limitation, like all others, ought to receive such a construction as the language in its plain meaning imports, and we can not by a process of so-called equitable construction, extend a rule of limitation to cases, which might be within the reasons but not within the words of the Statute, Mohummud Buhadoor v. The Collector(8). Vide the observation of Tindal, C.J, in Hyde v. Johnson(9). We do not think that it is permitted to us to substitute the words “‘knowledge of transfer’ for the words service of notice” as used in the section. It is well settled that a casus omissus or a mistake made by the framers of the statute, could not be remedied by a Court of law. A case which has been omitted is not to be supplied merely because there seems no good reason why it should have been omitted, and the omission appears consequently to be unintentional (Vide Maxwell Interpretation of Statutes 7th Edition p. 12). For the same reasons the doctrine of reasonable time which was enumerated in the cases noted above, seems to us to be unacceptable. In case of equitable relief the Court might refuse the prayer of an applicant who has unduly slept over his rights. This principle can certainly be applied when orders, which are more or less discretionary with the Court to pass, are claimed by a litigant. If the claimant is guilty of undue delay by which the other side has been prejudiced the Court is always competent to refuse to make an order. It can not be said however that the relief by way of pre-emption as provided for in sec. 26(F), Bengal Tenancy Act is a discretionary relief and the Court is at liberty to refuse the prayer if in its opinion it is likely to cause injustice. In these circumstances if the Legislature either inadvertently or otherwise omitted to provide any period of limitation for applications of a particular type, we are unable to say that such applications should be refused if not made within a reasonable time. This would be to legislate and not to interpret the law as it stands. In our opinion therefore the view taken in the decisions referred to above is not sound and can not be accepted.
21. Mr. Roy appearing on behalf of the Opposite Party conceded that if there is really a casus omissus regarding the period of limitation for application by co-sharers not served with notice of transfer, a Court of law would not be justified in importing the doctrine of reasonable time in such cases. He contended however that the Legislature omitted to provide for non-notified co-sharers at all in the section, and neither their right nor their remedy was specified. In such circumstances he says as the omission is unintentional and would obviously lead to injustice, a Court of law would be quite competent to create a right in favour of non-notified co-sharers, as a measure of equity, justice and good conscience, m exercise of its powers under sec. 37 of the Civil Court Act. As the right thus created is an equitable right, the Court would be at liberty to mould the provision of the section in such a way as would be conducive to equity and justice. The argument no doubt is ingenious but as we have already held that the right of non-notified co-sharers is created by the section itself, and there is no omission on that point, the contention apparently loses all force.
22. The last thing we have to consider is whether in the absence of any specific provision in the section itself regarding the period of time within which an application for pre-emption is to be filed by a non-notified co-sharer, and rule of limitation, laid down by the Indian Limitation Act is attracted to such cases. In our opinion, such cases should be governed by Art. 181 of the Limitation Act, which is the residuary article applicable to all applications for which no period of limitation is provided for elsewhere in the first schedule to the Act or by sec. 48 of the Civil Procedure Code 1908. We are not unmindful of the fact that in a long series of decisions it has been held that the residuary Article is confined only to applications made under the Civil Procedure Code. The decision of the Bombay High Court in Bai Manekbai v. Manekji(10) and that of the Calcutta High Court in Ishan Chunder Roy's case(11) are the earliest authorities on the point. The main reason given in both these decisions is that an examination of all the articles in the first schedule to the Limitation Act relating to applications shows that in every one of them the application is made under the Civil Procedure Code. A residuary article, it is said, should be construed ejusdem generis with the other articles dealing with applications. The other ground put forward is that the preamble to the Limitation Act indicates that is intended to apply not to all applications but only to certain applications. This view has been adopted in a large number of cases decided since then by the several High Courts in India, [Vide Ranbir Singh v. Drijpal(12), Tiluck Singh v. Parsotein(13), Rahmat Karim v. Abdul Karim(14), Saroja Sundari v. Abhoy Charan(15)]… In Bansraj Gupta v. The Official liquidator of the Dehra Dun &c.(16), a question arose as to whether an application in the winding up by the Official Liquidator of a company, seeking to recover certain sums from certain persons as debtors is governed by Art. 181 of the Limitation Act. Their Lordships of the Judicial Committee in course of their judgment referred to the long line of cases on the point, but they did not decide the question finally inasmuch as the application in the case before them was not time barred even if Art. 181 applied. We think that it may be necessary at some time or other to examine closely the reasons upon which the decisions mentioned above purport to be based. It is quite true that a residuary article must refer to applications of the same kind as those already specified, but it can not be said that an application under one statute must necessarily be of a different kind from an application under another statute. Moreover sec. 29 of the Limitation Act would seem to suggest that except where special provisions are made by special or local Jaws the law of limitation laid down in the Limitation Act could apply. Mr. Guha has drawn our attention to the fact that since 1940 all the applications specified in the first schedule to the Limitation Act are not applications under the Civil Procedure Code and at least two articles have been introduced, to wit, Articles 158 and 178 by the Arbitration Act of 1940 which relate to applications under the Indian Arbitration Act. We do not think that it is necessary for purposes of this case to pursue this matter any further.
23. Ill our opinion an application contemplated by sec. 26F, Bengal Tenancy Act, can be regarded as an application under the Civil Procedure Code or at any rate an application for the making of which the Civil Procedure Code gives authority [vide the Hindustan Bank v. Mehraj Din(17)]. Under sec. 143 of the Bengal Tenancy Act, subject to any rules to the contrary that the High Court may frame with the approval of the Provincial Government, the Code of Civil Procedure is applicable to all suits under the Act. The same procedure is attracted to applications and other miscellaneous proceedings by virtue of the provision of sec. 141, Civil Procedure Code. Sec. 144(3) of the Bengal Tenancy Act further lays down that all applications by a landlord or tenant which are authorised to be made under the Act shall be made to the Court which would have jurisdiction to entertain a suit for the possession of the tenure or holding in connection with which the application is made. The entire proceeding in an application under sec. 26F is thus regulated by the Civil Procedure Code and we have no hesitation in holding that the residuary Article 181 of the Limitation would be applicable to such applications, except so far as any special provision has been made in regard to them in the section itself. In Saktisaran v. Radha Raman(18), it was held by Mr. Justice Costello that Art. 181 of the Limitation Act applies to an application under sec. 26 of the Bengal Tenancy Act, and no question seems to have been raised that the application was not under the Civil Procedure Code. Even under the old Bengal Tenancy Act, it was held by a Division Bench consisting of Sir Francis Maclean, C.J and Mr. Justice Banerjee that an application to set aside a sale under sec. 173 was governed by the residuary article there being no period of time prescribed for such application in the Act itself.
24. We hold, therefore, that an application by a non-notified co-sharer for pre-emption under sec. 26F of the Bengal Tenancy Act is governed by Art. 181 of the Limitation Act and the applicant has three years' time from the date of transfer when the right to apply accrues.
25. The result is certainly anomalous and might lead to hardship in individual cases. It was obviously the intention of the legislature that these applications should be made within a short time after the sale and disposed of as soon as possible. The legislature, however, is itself to blame for creating the anomaly and it is up to it to remedy the defects as soon as it can. We can only express the hope, that the purchaser would be very careful to see that notice of transfer under sec. 26C is duly served on the co-sharers, and in this way alone he can prevent the latter from availing themselves of the larger period of limitation. In the case before us, the Petitioner upon whom no notice of transfer was served came to Court within three years from the date of sale. The application, therefore, was within time and could not be held to be time barred.
26. The result is that the rule is made absolute, the judgments of the Courts below are set aside, and the case sent back to the trial Court in order that an order for pre-emption may be made in favour of the Petitioner in accordance with law.
27. The Petitioner would be entitled to costs of the trial Court. Each party shall bear his costs in this Court as well in the lower Appellate Court.
Ormond, J.:— Having had the benefit of reading the written judgment of my learned brother I need say no more than that I entirely agree.
G.N Das, J.:— I agree.
C.C