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Nitai Chandra Das v. Sisir Kumar Das And Ors. Opposite Party.
Structured Summary of the Opinion
Factual and Procedural Background
Two revisional applications were filed challenging an appellate order which had affirmed a Munsif's order allowing two applications for pre-emption filed by opposite party No. 1 under section 26F of the Bengal Tenancy Act.
Opposite party No. 1 and opposite parties Nos. 2 to 4 were co-sharer occupancy raiyats of two holdings: one with a jama of Rs. 36-10-11 in Mouza Nischintapur and the other with a jama of Rs. 73/- in Mouza Samruk. Opposite party No. 4 instituted a suit for partition against opposite parties Nos. 1 to 3 in 1954; a preliminary decree was passed on December 10, 1955, and a final decree on April 2, 1958.
On May 16, 1956, opposite party No. 4 sold a demarcated 1.43 acre from C.S. plot 387 of the Rs. 36-10-11 holding and a demarcated 0.60 acre from the Rs. 73/- holding to opposite parties Nos. 5 to 7. Opposite parties Nos. 5 to 7 subsequently sold those lands to the petitioner on December 12, 1958. Opposite party No. 1, who had been a minor at the time of the May 16, 1956 sale, filed two applications for pre-emption on December 15 and December 18, 1958. The learned Munsif heard both applications together and allowed them; the petitioner appealed and the Appellate Court affirmed the learned Munsif's decision. The revisional proceedings challenge that affirmation.
Legal Issues Presented
- Whether the applications for pre-emption by opposite party No. 1 under section 26F, Bengal Tenancy Act, were barred by limitation (and whether service on opposite party No. 2 constituted valid service on opposite party No. 1).
- Whether section 26F of the Bengal Tenancy Act applies where an individual co-sharer in exclusive possession of a demarcated portion of the holding (i.e., an exclusive allotment rather than an undivided share) transfers that portion.
- Whether transfers taking place after vesting of raiyats' interests in the State under Chapter VI of the West Bengal Estates Acquisition Act, 1953 (vesting effective April 14, 1956) are subject to section 26F, having regard to section 52 of the Estates Acquisition Act and Rule 4 of the Rules made under that Act (including the amended Rule 4).
- Whether the amended Rule 4 (substituted with effect from September 7, 1962) operates retrospectively so as to affect the rights of the parties in respect of transfers occurring after the date of vesting.
- Whether the vesting in the State eradicates the concept of co-sharer tenancy (so that section 26F would no longer apply to tenancies held directly under the State).
Arguments of the Parties
Petitioner's (Mr. Roy Choudhury) Arguments
- The pre-emption applications should have been dismissed as barred by limitation; no notice of the transfers was served on opposite party No. 1, though notice had been served on opposite party No. 2 (the eldest brother), and service on No. 2 should be treated as good service on No. 1.
- Opposite party No. 4 was in exclusive possession of demarcated areas and sold those demarcated areas (not an undivided share); therefore section 26F (which deals with transfer of a share) does not apply.
- Under Chapter VI of the Estates Acquisition Act, 1953, the interests of raiyats vested in the State on April 14, 1956; transfers after vesting (the transfers here took place May 16, 1956) are not subject to section 26F because with vesting and the operation of section 52 the occupancies are to be dealt with under the Estates Acquisition Act and corresponding Rules; the petitioner argued that the Rules cannot be given retrospective effect and that parties' rights should be determined by Rule 4 as it stood on the date of transfer.
- After vesting, each individual holds land directly under the State (i.e., no more co-sharer tenants), so section 26F would be inapplicable.
Opposite Party No. 1 / Respondent
The opinion does not contain a detailed account of the opposite party's legal arguments beyond the factual and procedural record that opposite party No. 1 filed two pre-emption applications which were allowed by the learned Munsif and affirmed on appeal.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Ganesh Chandra Mahato v. Sudarsan Dey, 62 C.W.N. 360 | The opinion cites this case as supportive of the court's position regarding applicability of pre-emption rights (section 26F) after vesting. | The court states it "finds support for my views" in this decision and relies on it as corroborative authority for concluding that section 26F remains applicable in the circumstances described. |
Court's Reasoning and Analysis
The court addressed each of the petitioner's contentions in turn and explained the legal reasoning supporting the conclusion that the applications for pre-emption by opposite party No. 1 were properly allowed:
-
Limitation and service:
- The petitioner argued the applications were time-barred because opposite party No. 1 did not receive notice of the transfers; notice had been served on opposite party No. 2 (the eldest brother), which the petitioner contended should suffice as service on No. 1.
- The courts below had found as a fact that opposite party No. 2 was not the karta of a joint family of opposite parties Nos. 1 to 3, and therefore service on opposite party No. 2 could not be treated as service on opposite party No. 1. The court treated that finding as one of fact which it could not revisit in this revisional application, and therefore the limitation point failed.
-
Applicability of section 26F where a co-sharer had exclusive possession of a demarcated portion:
- The petitioner contended that because opposite party No. 4 had exclusive possession of demarcated areas and sold those areas (and not an undivided share) section 26F did not apply.
- The court rejected this argument, reading section 26F's reference to "one or more co-sharer tenants of the holding a portion or share of which is transferred." The court emphasized both terms: "share" (which may indicate an undivided share) and "portion" (which covers a demarcated portion in exclusive possession).
- The court observed there had been no partition by metes and bounds among opposite parties Nos. 1 to 4 at the time of the transfers (May 16, 1956), so they remained co-sharer tenants of the entire holdings. It held that a mutual arrangement giving exclusive possession of a demarcated area to one co-sharer did not change the character of all co-sharers as co-sharer tenants of the entire holding for the purposes of section 26F.
- The court concluded that opposite party No. 1, as one of the co-sharer tenants, had the right to pre-empt the transferred portions under section 26F.
-
Effect of vesting under the West Bengal Estates Acquisition Act, 1953, and the Rules (Rule 4):
- The petitioner argued that upon vesting (effective April 14, 1956) the occupancy holdings vested in the State and that section 26F would not apply to transfers occurring after vesting.
- The court examined section 52 of the Estates Acquisition Act which, on vesting, applies specified chapters mutatis mutandis to raiyats such that an occupancy raiyat is entitled to retain certain bastu and agricultural land under section 6(1)(a) and (d) of that Act. The court noted the presumption under clause 7(5) of Schedule B to the Rules that where the area retained in khas does not exceed limits, the intermediary is presumed to have retained that land in khas after April 14, 1956.
- The court then considered section 52 read with section 6(2) of the Estates Acquisition Act, under which opposite party No. 4 would be deemed to hold the retained lands directly under the State "subject to such terms and conditions as may be prescribed" (i.e., prescribed by Rules under the Act). The relevant rule was Rule 4 of the Rules under the Act.
- The court contrasted the original Rule 4 (as it stood on the date of the transfer) with the amended Rule 4 (effective September 7, 1962). The amended Rule 4 expressly lists many provisions of the Bengal Tenancy Act, 1885 (including sections 26 to 26G) as applying mutatis mutandis to agricultural land held by intermediaries from the date of vesting.
- The petitioner argued the amended Rule 4 could not be applied retrospectively. The court rejected that contention, explaining that Rule 4 prescribes that lands are to be held by the tenant on specified terms and conditions "from the date of vesting"; this establishes the status of the tenancy from the date of vesting rather than making the Rule itself retroactive in the sense of changing past rights. Moreover, the court held that even under the original Rule 4 (pre-amendment) the words "same terms and conditions as an occupancy raiyat" meant that all incidents attaching to an occupancy raiyat, including section 26F, applied to the tenancy held under the State.
- The court emphasized the purposive rationale of pre-emption rights: to prevent outsiders from entering the holding where co-sharers wish to retain the property for themselves. That necessity continues after vesting; therefore section 26F remains relevant and applicable in any view of the matter—whether under the original Rule 4 or the amended Rule 4.
-
Whether vesting abolishes co-sharer tenancy:
- The petitioner argued that after vesting there would be no co-sharer tenants because each individual would hold directly under the State; if true, section 26F would not apply.
- The court rejected this argument, noting that the amended Rule 4 demonstrates that section 26F is to apply to tenancies held under the State after vesting, which implies the continued existence of co-sharer tenancy relationships for the purposes of the tenancy regime. The court further observed that clause 7(4) of Schedule B (which contemplates partitioning for the purpose of allotment under sub-section (5) of section 6) is concerned with the specific choice procedure for intermediaries and does not govern occupancy holdings already held by co-sharer tenants before vesting. The court also noted that the jama (assessment) continues to be joint though payable to the State; therefore joint tenancies/co-sharer tenants do not cease to exist merely by vesting.
Holding and Implications
Core Ruling: The Rules (i.e., the revisional rules impugned in these proceedings) are discharged. No order as to costs was made.
Consequences and implications as stated in the opinion:
- The court held that opposite party No. 1 is entitled to pre-empt the transfers under section 26F of the Bengal Tenancy Act even though the relevant transfers occurred after the vesting date under the West Bengal Estates Acquisition Act, 1953; section 26F is applicable to transfers by co-sharer tenants holding directly under the State.
- The court rejected the petitioner's limitation and service arguments on the basis of the factual finding that service on opposite party No. 2 was not service on opposite party No. 1, and thus did not displace opposite party No. 1's timely exercise of pre-emption rights.
- The court ruled that exclusive possession by one co-sharer of a demarcated portion does not negate the right of other co-sharers to pre-empt that transferred portion under section 26F where no partition by metes and bounds had occurred prior to the transfer.
- The opinion relies on existing statutory provisions and the Rules (including the amended Rule 4) and finds support in the cited precedent (Ganesh Chandra Mahato v. Sudarsan Dey). The court did not announce that it was creating a new legal principle distinct from these materials; it applied statutory interpretation and existing authority to the facts at hand.
This summary is prepared solely from the text of the provided opinion and does not add or infer information beyond what that opinion expressly contains.
S.K.B
2. These two revisional applications are directed against an appellate order affirming an order of a Munsif allowing two applications for pre-emption filed by opposite party No. 1 under section 26F, Bengal Tenancy Act.
3. Opposite Party No. 1 and opposite parties Nos. 2 to 4 were co-sharer occupancy raiyats of two holdings, one with a jama of Rs. 36-10-11 in Mouza Nischintapur and the other with a jama of Rs. 73/- in Mouza Samruk.
4. Opposite party No. 4 filed a suit for partition against opposite parties Nos. 1 to 3 in 1954. A preliminary decree was passed on December 10, 1955, and a final decree was passed on April 2, 1958. On May 16, 1956, opposite party No. 4 sold a demarcated 1.43 acre of land out of C.S plot 387 of the holding of Rs. 36-10-11 and a demarcated .60 acre of land out of the holding of Rs. 73/- to opposite parties Nos. 5 to 7. Opposite parties Nos. 5 to 7 in their turn sold the lands to the petitioner on December 12, 1958. Opposite party No. 1 who was a minor at the time of the sale dated May 16, 1956, filed two separate applications for pre-emption of the two transfers on December 15, 1958, and December 18, 1958, respectively. The learned Munsif heard these two applications together and allowed the prayer for pre-emption in respect of both the applications. The petitioner filed two appeals and the Appellate Court has affirmed the decision of the learned Munsif.
5. Mr. Roy Choudhury, who appears for the petitioner, argues that the applications should have been dismissed as barred by limitation. It appears that no notice of the transfers was served on opposite party No. 1. He filed the applications within 3 years from the date of the transfers. Mr. Roy Choudhury submits that notice of the transfer was served on opposite party No. 2 who was the eldest brother of opposite party No. 1 and service on opposite party No. 2 should have been held to be good service on opposite party No. 1. Mr. Roy Choudhury in his frankness, however, admits that the courts below have found that opposite party No. 2 was not the karta of a joint family of opposite parties Nos. 1 to 3 and as such service on opposite party No. 2 could not be said to have been good service on opposite party No. 1. This is a finding of fact and I cannot go behind this in this revisional application. The point about limitation, therefore, fails.
6. Mr. Roy Choudhury next argues that opposite party No. 4 was in exclusive possession of a demarcated area of the two C.S plots and sold the same to opposite parties Nos. 5 to 7. No undivided share was sold and so section 26F Bengal Tenancy Act is not attracted. This argument cannot be sustained. Section 26F refers to ‘one or more co-sharer tenants of the holding a portion or share of which is transferred.’ The right to pre-empt is given to ‘one or more co-sharer tenants of the holding’. Here in this case when the transfers took place on May 16, 1956, there was as yet no partition by metes and bounds amongst opposite parties Nos. 1 to 4 and as such all of them were co-sharer tenants of both the holdings. No amicable arrangement for separate or exclusive possession of some lands of the holding by each of the co-sharers takes away the character of all of them as ‘co-sharer tenants’ of the entire holding. Furthermore the right to pre-empt arises when not only a share but also ‘a portion’ of the holding is transferred. Share may refer to an undivided share but the word “portion” indicates that even if the particular portion is in the exclusive possession of one of the co-sharers, the other co-sharers are given the right to pre-empt. I hold therefore, that even though by virtue of some mutual arrangement opposite party No. 4 was in exclusive possession of a demarcated share of the two C.S plots and sold the same to opposite parties Nos. 5 to 7, opposite party No. 1 as one of the other co-sharer tenants has the right to preempt under section 26F, Bengal Tenancy Act. This argument of Mr. Roy Choudhury also fails.
7. Mr. Roy Choudhury next argues that under Chapter VI of the Estates Acquisition Act, 1953, the interest of all raiyats have vested in the State of West Bengal with effect from April 14, 1956. The transfer took place on May 16., 1956. He submits that section 26F Bengal Tenancy Act will not be applicable to transfers after the date of vesting. Under section 52 of the Estates Acquisition Act, 1953, with the vesting of the occupancy holdings in the State the provisions of Chapters II, III, V and VII shall apply mutatis mutandis to raiyats as if such raiyats were intermediaries and the lands held by them were estates. An occupancy raiyat will thus be entitled to retain his bastu and 25 acres of agricultural lands by virtue of the provisions of section 6 (1) (a) and (d) of the West Bengal Estates Acquisition Act, 1953. Here in this case there is no evidence to show that opposite party No. 4 had more than 25 acres of land in his possession. Under clause 7 (5) of Schedule B to the West Bengal Estates Acquisition Rules, 1954 where the area of lands held in khas by a raiyat does not exceed the limits laid down under clause (d) of sub-section (1) of section 6 it shall be presumed that such raiyat has retained all such lands. It should therefore be presumed in this case that opposite party No. 4 retained the disputed lands in khas after April 14, 1956. Then by virtue of section 52 read with section 6 (2) of the Estates Acquisition Act, 1953, opposite party No. 4 is to be deemed to have held these lands directly under the State from the date of vesting as a “tenant subject to such terms and conditions as may be prescribed” and subject to payment of such rent as may be determined under the provisions of the Act. “Prescribed” means prescribed by Rules made under the Act. The relevant rule is Rule 4 of the Rules framed under the Act. Rule 4 as it stood on the date of the transfers read thus: “Every intermediary who retains possession of any land by virtue of the provisions of sub-section (1) of section 6 shall subject to the provisions of the Act be deemed to hold such land from the date of vesting (a) if it is agricultural land, on the same terms and conditions as an occupancy raiyat under the Bengal Tenancy Act, 1885.” Mr. Roy Choudhury in his usual fairness refers to the recent amendment of the Rules by which a new Rule 4 has been substituted for the original Rule 4. The new Rule states: “Any land retained by an intermediary under the provisions of sub-section (1) of section 6 shall subject to the provisions of the Act be held by him from the date of vesting on the terms and conditions specified below:
(3) If the land held by the intermediary be agricultural land then—
(i) he shall hold it mutatis mutandis, on the terms and conditions mentioned in sections 23, 23A, clause (a) of section 25, sections 26 to 26G, 52 to 55, sub-sections (1) and (2) of section 56, sections 65, 67, subsection (1) of section 68, sections 73, 86A, sub-sections (1), (2) and (3) of section 87, to so much of section 159 as does not relate to protected interests, sections 161 to 163, 166, sub-sections (1), (2) and (3) of section 167, section 168, sections 169 to 171 and sections 173 to 177 of the Bengal Tenancy Act, 1885.”
8. This amendment came into force with effect from September 7, 1962. The amended Rule 4 clearly states that even after the date of vesting section 26F, Bengal Tenancy Act will be attracted to transfers by a co-sharer tenant. Mr. Roy Choudhury argues that this amendment has no retrospective effect because the Rules are framed by the State Government under a delegated authority and no delegated authority has the power to frame Rules with retrospective effect. Rule 4 states that the lands shall be held by the tenant on the specified terms and conditions from the date of vesting. What Rule 4 prescribes is that the tenant will have the specified rights from the date of vesting. This does not arise out of some provision in the Rule by which the Rule is made retrospective from the date of vesting. Mr. Roy Choudhury further argues that the rights of the parties in this proceeding should be determined on the basis of Rule 4 as it stood on the date of the transfer. I think that even then section 48F. Bengal Tenancy Act is attracted. Opposite party No. 4 was then holding the lands on the same terms and conditions as an occupancy raiyat under the Bengal Tenancy Act, 1885. What do the words “same terms and conditions” mean? Mr. Roy Choudhury argues that these words do not mean all the incidents attaching to an occupancy raiyat but some of the incidents viz, transferability, heritability and so on. The words used were “same terms and conditions”. If the intention was to limit the terms and conditions to some of the incidents of an occupancy raiyat, the rules would have made that clear. The fact that the rule was framed in general terms saying that the lands should be held on the same terms and conditions as an occupancy raiyat, indicates that all the rights attaching to an occupancy holding including section 48F, Bengal Tenancy Act must continue to be attached to the new tenancy. The right of pre-emption was given to a co-sharer occupancy raiyat with a view to prevent outsiders from coming into the holding if the other co-sharers wanted to retain the same for themselves. This necessity has riot ceased to exist. Even under the present conditions there is the same necessity for preventing outsiders from coming into a particular tenancy when the other co-sharers want to retain it. Thus in any view of the matter i.e, either under the old Rule 4 or under the amended Rule 4, section 26F Bengal Tenancy Act is attracted. I cannot therefore agree with Mr. Roy Choudhury's argument that section 26F of the Bengal Tenancy Act is no longer applicable to the case of a tenancy held directly under the State after the vesting under Chapter VI of the Estates Acquisition Act, 1953. Opposite party No. 1 is therefore entitled to preempt even after the date of vesting. I find support for my views in the decision in the case of (1) Ganesh Chandra Mahato v. Sudarsan Dey, reported in 62 C.W.N 360.
9. Mr. Roy Choudhury lastly argues that after the vesting there is no more any co-sharer tenant and every individual is holding land directly under the State and in that view of the matter section 26F, Bengal Tenancy Act is not attracted at all. If this view is good law then there would be no more any necessity for continuance of section 26F. But it appears that the amended Rule 4 makes section 26F applicable to tenancies under the State even after vesting. That indicates that even now there will be co-sharer tenant; of a holding. Mr. Roy Choudhury refers to clause 7 (4) of Schedule B to the Rules under the Estates Acquisition Act where it is said that the Revenue Officer shall wherever necessary partition the lands for the purpose of making allotment under sub-section (5) of section 6 of the Act and demarcate the lands so partitioned by assigning such separate plot numbers as may be needed for the purpose. This partition is to be made for the purpose of sub-section (5) of section 6 only, which says that an intermediary shall have to exercise his choice for retaining par- ticular lands in his khas possession and if no choice is exercised during the prescribed period the Revenue Officer shall allow him to retain so much of the lands as do not exceed the limits and in such cases the Revenue Officer shall partition the lands. This has no reference to the lands of an occupancy holding which were being held by co-sharer tenants before the vesting and which were continued to be held as a tenancy under the State after the vesting. Even after the vesting the jama remains joint but payable to the State. It cannot therefore be said that after the date of vesting there will be no more joint tenancies or co-sharer tenants and as such section 26F, Bengal (Tenancy Act will be wholly inapplicable. The argument of Mr. Roy Choudhury on this point also fails.
10. The Rules are, in the circumstances, discharged. No order is made as to costs.
S.K.B
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