Derbyshire, C.J:— In my opinion this Rule must be made absolute.
Certain co-sharers in a holding have transferred or purported to transfer their interest to one of the other co-sharers and seven strangers. There are altogether ten co-sharers of this holding. Two of the co-sharers, neither of them the one to whom the transfer has been made along with the seven strangers, claimed a right of pre-emption given under s. 26F of the Bengal Tenancy Act which was brought into operation in 1938. The stranger transferees and some of the other co-sharers, we are told, opposed the claim of pre-emption.
When these proceedings were started the two claimant co-owners claimed pre-emption of the whole of the portion of the holding which had been transferred, but during the proceedings they limited their claim to that portion which had been transferred to the strangers. As there were eight transferees and seven of them strangers, we must assume that the two claimant co-owners limited their claim of preemption to the transferred to the strangers.
The learned Judge was of the opinion that the claimants could claim the whole of the portion transferred or nothing. Consequently he made no order under s. 26F.
We are asked to say that the learned Judge wrongly declined to exercise his jurisdiction, or exercised it with material irregularity. I am unable to take the same view of the matter as the learned Judge. The purpose of the section is to prevent a portion of the holding being transferred to outsiders against the wishes of the co-sharers. It seems to me that the portion which has been transferred mist be looked upon as divided into two segments—one transferred to the co-sharer, namely, ⅛th, and the other ⅞ths transferred to the strangers.
As regards the transfer of the ⅛th of the portion to the co-sharer, that seems to me to come within exception (a) to s. 26F which runs as follows:—
A transfer to a co-sharer in the tenancy whose existing interest has accrued otherwise than by purchase.
So that the right of pre-emption claimed now by the two co-sharers does not apply to that ⅛th of the portion alienated. However, as regards the other ⅞ths of the portion proposed to be alienated, it seems to me that, the words of s. 26F(1)(a) directly apply, namely, that—
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 s. 26C, apply to the Court for the said portion or share to be transferred to himself or themselves.
Therefore, with regard to ⅞ths of the portion alienated in favour of the seven strangers, s. 26F applies and the claimant co-sharers are entitled to pre-empt that in favour of themselves.
The learned Judge in refusing to make an order of pre-emption, under s. 26F, it seems to me, was refusing to exercise a jurisdiction he had, and therefore, his order must be set aside and the matter remitted to him so that he may deal with it according to law in the light of the judgment of this Court.
In my opinion, therefore, for the reasons I have stated, this Rule must be made absolute with costs the hearing-fee being assessed at one gold mohur.
Mukherjea, J.:— I agree. The petitioners in this Rule are some of the co-sharer tenants in respect of an occupancy holding carrying a rental of Rs. 19, odd. On January 18, 1939, the opposite parties Nos. 10, 11, 12 and 15, who were some of the other co-sharers, sold their interest in the said holding to eight purchasers who were made opposite parties Nos. 1 to 8 in this Rule. Of these eight purchasers, the opposite party No. 2 was already a co-sharer in the same tenancy, having an existing interest to the extent of two annas and three pies share, which he acquired by inheritance and the remaining seven purchasers were strangers.
After the sale, the present petitioners who are two of the co-sharer tenants, claimed to exercise their rights of pre-emption under s. 26F of the amended Bengal Tenancy Act, 1938, and the question arises as to whether they are entitled to claim pre-emption in view of the provisions of s. 26F(1)(a) of the Bengal Tenancy Act which excludes the operation of the section when the transfer is made in favour of an existing co-sharer.
The lower appellate Court was of opinion that, as the petitioners can only claim pre-emption as regards the entire interest sold and not to a portion of the same, the petitioners were not entitled to have preemption even with regard to the ⅞ths share that was purchased by the stranger purchasers.
I agree with my Lord, the Chief Justice that the view of the lower appellate Court is not right. Clause (a) of s. 26F(1) of the Bengal Tenancy Act contemplates a case where the purchase is made by a co-sharer who has an existing interest otherwise than by purchase in the tenancy, and by such co-sharer alone. If there are other purchasers along with him, who are outsiders, cl. (a), in my opinion, would be operative with regard to the share acquired by the co-sharer purchaser and not with regard to the shares purchased by others.
The object, of this section is undoubtedly to prevent a stranger from coming upon a holding if any of the remaining co-sharers, who are also not co-sharers by purchase, are willing to purchase that share. This object is already fulfilled when the purchase is made by such a co-sharer and consequently no right of pre-emption has been given in such cases. But I think that the object of the section would the totally frustrated if the section is held to be inapplicable when a co-sharer figures as a purchaser jointly with other persons who are strangers out and out. In such a case the right of pre-emption, in my opinion, can exercised by the other co-sharer tenants with respect to that portion of the holding which has been acquired by the stranger purchasers.
The lower appellate Court laid considerable stress upon certain decisions of this Court, to wit, Behary Lal Roy v. Pulin Behary Paul and Surabala Basu v. Rukmini Kanta Barman Roy, and it was of the opinion that if the petitioners were entitled to have pre-emption at all that could be exercised only with regard to the whole and not with regard to a portion of what has been transferred and, as in this case, this could not be allowed, the petitioners would have no rights whatsoever.
These cases relied on by the lower appellate Court are under the old s. 26F of the Bengal Tenancy I Act which related to powers of repurchase by the landlords and not by co-sharer tenants. The principle stated in the cases is undoubtedly sound. But the petitioners here do not really want to exercise their rights of pre-emption with regard to a portion only of what has been sold. That portion which has been sold to opposite party No. 2 comes within the purview of cl. (a) of s. 26F(1) and must be ignored altogether for purposes of this case. The purchase, therefore, was only with regard to the remaining ⅞ths and the petitioners want to pre-empt the entirety of this share.
In these circumstances, I agree that the Rule must be made absolute and the case remitted to the Subordinate Judge to be dealt with in accordance with law.
Rule absolute.
P.K.D