2. This is a petition under section 115 of the Code of Civil Procedure against an order passed by the Subordinate Judge, Midnapore, in an appeal arising out of proceedings under section 26F of the Bengal Tenancy Act, This application is filed on behalf of the purchaser. The opposite party No. 1 applied for pre-emption under the aforesaid section before the Munsiff at Tamluk on the ground that the Opposite Party No. 3 Upendra, transferred his share in the property to the petitioner on the 13th July, 1948 and on 13th November, 1958 — more than 10 years after the sale — he had come to know about the sale and therefore filed the petition for pre-emption. It has been alleged that the petitioner and the opposite party No. 3 were related, lived in the same Bastu, it was collusively stated in the sale deed that there was no co-sharer. The result was that no notice under section 26C of the Bengal Tenancy Act was served upon the applicant for pre-emption and he was thus kept out of knowledge by collusion and fraud between the purchaser and the vendor. The objection that was taken was that there was no fraud at all and the issue that was raised with respect to that matter was issue No. 2 which is as follows:—

“Whether any fraud wars committed to keep the applicant from the knowledge of the 3ale of the disputed land.”

3. The first court came to the finding that fraud was commit tad only to the extent that no notice was served on the applicant under section 260 of the Bengal Tenancy Act but the court found that the applicant for pre-emption had knowledge of the sale and therefore the application was barred by limitation under Article 181 of the Limitation Act. Against that the opposite party No. 1 preferred an appeal. The appellate court came to the finding that fraud was perpetuated by opposite parties Nos. 1 and 2 before the trial court upon the petitioner for pre-emption and the effect of that fraud continued till December, 1958 when the petitioner in the trial Court came to know of the sale. He therefore held that the application was not barred by limitation, allowed the appeal and granted a right of preemption to opposite party No. 1 (petitioner in the trial Court).

4. Against that decision the petitioner, who is the purchaser has moved this Court in revision. Mr. Banerjee on behalf of the Petitioner has urged two points. The first is, there is no evidence on record to show that the petitioner-purchaser colluded with the vendor in having an insertion in the sale deed that there was no co-sharer. Mr Banerjee accepts the position that there is that statement. But what he says is that, that is evidence merely of the fact that the vendor, who executed the document, made a fraudulent statement. It appears further, it is the vendor who purchased the stamp. It is also clear that the vendor presented the document before the Sub-Registrar and therefore there may be sufficient evidence to show that the vendor in order to get higher price from the purchaser has fraudulently stated that there was no co-sharer. There is nothing on record to show that this insertion in the document was made by or at the instance of the petitioner-purchaser. In that view of the matter, Mr. Banerjee says the Court had not come to the necessary finding and there is no evidence to arrive at that finding. Mr. Mitter on behalf of the opposite parties with respect to this point submits that under the Transfer of Property Act, section 55(d), it is the purchaser who tenders the document to the vendor for execution. He therefore says the stamp might have been purchased by the vendor on behalf of the purchaser. The recital in the document must have been inserted at the instance of the purchaser, who was responsible for statement in the document and the vendor had merely signed the document. Therefore, if there it; fraud, the fraud is more at the instance of the purchaser than at the instance of the vendor.

5. I am afraid, the point that was taken in the courts below was not the point which has been discussed above. The question is whether the purchaser made a statement before the trial court that he never purchased the stamp and he was not responsible for the recital in the document. All these recitals were done at the instance of the vendor and he merely accepted the document which was executed by the vendor. This is a question of fact. It may be ordinarily that the purchaser is responsible for the recitals in the document. The question is who was responsible for this recital in this document? This point was not agitated in the courts below. What was agitated was whether the vendor and the purchaser colluded with each other and got that insertion to deprive the applicant of his right for pre-emption and the court has considered that question of fraud. I am afraid it is too late to allow Mr. Banerjee to urge a point which requires investigation of facts at the present stage.

6. The second point of Mr. Banerjee is somewhat an important question of law. This is clear that on 13th July, 1948 there was the sale and there is no doubt that the right of the vendor was that of an occupancy raiyat. Thereafter, the Estates Acquisition Act I of 1954 came into force. Subsequently in April, 1956 rights of occupancy raiyats were also declared to be intermediaries. The result of that was that the right of an occupancy raiyat i.e, the purchaser's right vested in the State of West Bengal. Mr. Banerjee next refers to section 4 of the said Act and says when it vested it so vested free from all encunbrances. It is further urged by Mr. Banerjee that this right of pre-emption has been considered to be a burden and any person who purchases the property after a right of pre-emption has accrued in favour of somebody, purchases it, burdened with the right of pre-emption. Mr. Banerjee therefore says, according to the decision of the Division Bench of this High Court, this right of pre-emption is in the nature of an encumbrance and therefore when the property vested in the State, it vested together with the right of pre-emption. That being an encumbrance, that is avoided. The decision that he refers to is (1) 57 C.W.N 253, between Nishi Kanta v. Jnanendranath, a decision of Chakravartti, C.J and Sinha, J.

7. Mr. Banerjee next urges supposing it be held that the right of pre-emption is not in the nature of encumbrance, even then, it is some sort of a right granted by statute under section 26F of the Bengal Tenancy Act. But section 3 of the Estates Acquisition Act is:— Notwithstanding anything contained in any other law for the time being in force the provisions of the Act, (the Estates Acquisition Act) will apply. Mr. Banerjee says therefore notwithstanding the rights created by virtue of section 26F of the Bengal Tenancy Act the property will vest in the State of West Bengal free from any right created under the aforesaid section 26F of the Bengal Tenancy Act. Finally, Mr. Banerjee says that the net effect of section 3 of the Estates Acquisition Act and section 26F of the Bengal Tenancy Act is that the latter has been impliedly repealed and as an authority for that proposition he refers to the decision of Renupada Mukherjee and Banerjee, JJ. in (2) 62 C.W.N 373. between Hiranmoyee and Arik. Mr. Banerjee therefore submits that from whatever point of view the matter is looked into, the right of pre-emption is gone. Mr. Mitter on behalf of the opposite parties says that the right of pre-emption is not an encumbrance within the meaning of the Act. He refers to the definition of the word “encumbrance” under section 2(h) (Estates Acquisition Act). He further refers to section 2(p) of the same Act where it has been stated that the words, which have not been explained in the Estates Acquisition Act, would have the same meaning as they have under the Bengal Tenancy Act. He, therefore refers to the definition of the word “Encumbrance” as understood under section 161 of the Bengal Tenancy Act and he says that the right of pre-emption is not an encumbrance either within the meaning of Bengal Tenancy Act or within the meaning of the Estates Acquisition Act. Therefore, according to him it does not vest in terms of section 4. The next argument of Mr. Mitter is supposing it is an encumbrance when the State gets the property the State will get it free from all encumbrances. But when an intermediary retains the property, the intermediary retains the property as it is and the property does not vest at all. He refers to section 6 and says notwithstanding anything contained in section 4 an intermediary will be entitled to retain and the net effect of that is when an intermediary retains, it does not vest in the State of West Bengal at all. Therefore, the rights of the parties would be the same as they formerly had in cases where property is retained and, therefore, according to him, section 4 does not apply to a case where the property is retained by an intermediary and as this property has been retained, section 4 would not apply. I must say, it is conceded by both the parties that the property could be retained Mr. Mitter finally states, if we refer to section 26F of the Bengal Tenancy Act, we will find that the pre-emptor will have the same right as the purchaser had at the date of the order. According to him therefore, if the vendor had retained the property, he would in any view be a tenant under the State of West Bengal with right of occupancy raiyat i.e, the purchaser would have the same right but under a different landlord.

8. I shall now consider the questions aforesaid. The first question is whether the right created under section 26F of the Bengal Tenancy Act is an encumbrance within the meaning of the West Bengal Estates Acquisition Act I of 1954. Mr. Banerjee referred to the definition of the word ‘encumbrance’ under section 2(h) which merely states en encumbrance does not include certain rights. Hence, we are referred to section 2(p) where it has been provided that expressions not otherwise defined have the same meaning as in the Bengal Tenancy Act. We are therefore referred to the Bengal Tenancy Act. That leads to section 161 of the Bengal Tenancy Act where an encumbrance means ‘a lien, sub-tenancy, easement or other right or interest created by the tenant on his holding or in limitation of his own interest therein’. It is, therefore, submitted that the right created under section 26F is not an encumbrance because the right is not created by the tenant and secondly because section 26F does not create any right or interest in the land in favour of the pre-emptor. Referring now to section 26F we find “In case of a transfer one or more co-sharer tenants of the holding may within four months of the transfer apply to the court for the said portion or share to be transferred to himself or themselves.” Therefore, section 26F does not create any right or interest in the land though it gives a right to apply for the land transferred to be retransferred to the pre-emptor. This right therefore is not in the nature of a right or an interest in the land but a right to have a property transferred which is in the nature of an agreement to transfer and as such it does not create a right or interest in the land itself. We may refer to section 54 of the Transfer of Property Act.

9. If we refer to the general law, we shall come to the same conclusion. A right of pre-emption has been considered by a Full Bench of this High Court in a decision between Moulvi Ali Husain Mea v. Raj Kumar Haider (3) reported in 47 C.W.N 557. According to the Full Bench decision ‘a covenant for pre-emption or a covenant giving option of purchase made after the Transfer of Property Act does not create an interest in the land.’ Hence whether we interpret section 26F or we look to the general law the result is that a right of pre-emption either created by statute or by contract would not amount to a right in the property but may amount to right to have property to be transferred which is nothing more than an agreement to transfer. Mr. Banerjee has referred to two decisions — reported in (4) 53 C.W.N page 678 between Tarapada Karati and Sudhamay Dolui, a decision of Chakravartti, C.J and Sinha, J. reported in (1) 57 C.W.N page 253, between Nishikanta Das and Jnanendra Nath Mondal and in the latter decision Chakravartti, C.J says “it is well settled that all subsequent transfers by transferee of an occupancy holding are subject to the rights of pre-emption under section 26F of the Bengal Tenancy Act.” It is suggested by Mr Banerjee that this clearly shows that the right created under section 26F of the Bengal Tenancy Act is in the nature of a covenant running with the land and, if it is in the nature of a covenant running with the land, it is nothing but a right or an interest in the land and therefore it would be an encumbrance within the meaning of the Act. I have therefore to consider whether the right of pre-emption is in the nature of a covenant running with the land. As Chakravartti, C.J did not refer to any decision, we do not get the principle underlying the observation in this decision but we get the principle in the other decision viz. in the decision reported in (4) 53 C.W.N 678 and the principle is that no man should be allowed to contrive in such a way as to defeat the purpose of any statute. I may refer to his Lordship's statement. “If it could, then the decision would be that a party could at his will suspend the operation of the statute.” It is clear therefore that the decision is based not upon the reason that a right under section 26F is in the natue of a covenant running with the land but on the reason that the courts of law would never encourage parties to avoid statute and I find therefore nothing in the aforesaid decision which mitigates against the view taken by myself earlier that the right created under section 26F is not an encumbrance within the meaning of section 4 of the Estates Acquisition Act.

10. The next point of Mr. Banerjee is because of Section 3 of the West Bengal Estates Acquisition Act section 26F stands impliedly repealed. Section 3 of the West Bengal Estates Acquisition Act says, “The provision of this Act shall have effect notwithstanding anything to the contrary in any other law or in arty contract express or implied or in any instrument and notwithstanding any usage and custom to the contrary,” Mr. Banerjee says, the effect of section 4 is that the right of intermediary would vest in the State. If it vests in the State, the right of pre-emption cannot be enforced as against the State because the policy of the Legislature is that the State would take land from persons, who own land in excess of a particular quantity and then distribute the same to others. This purpose would be defeated if the right of pre-emption is allowed to exist as against the State. If the property had vested in the State and the intermediary viz. ex-occupancy raiyat was not authorised to retain it, I am afraid, the position might have been different. I have doubts whether this right of pre-emption could be exercised as against the State if the vendor or the purchaser could not retain it. In this case it has been accepted by both the Advocates of both sides that each of them could have retained this property. I am afraid, retention by the vendor is not relevant but retention by the purchaser is relevant. I must accept the position that the purchaser could retain. Hence, I have to consider in a case where the ex-intermediary retains the land whether the right of pre-emption can be enforced against him.

11. Mr. Mitter says that the right of pre-emption will exist because of the opening words of section 6. Section 6 says, “Notwithstanding anything contained in sections 4 and 5 an intermediary shall, except in the case intentioned in the proviso to sub-section (2) be entitled to retain with effect from the date of vesting” etc. Mr. Mitter therefore says that because of the operation of section 6 the properties retained go completely out of section 4 or, in other words, the right, title and interest of such persons, who retain, do not vest at all. Apparently, that would seem so but, I am afraid, I cannot agree. It is clear from section 6 itself that he would be entitled to retain from the date of vesting as if he were a direct tenant under the State from the date of vesting as a tenant subject to such terms and conditions as may be prescribed and subject also to payment of rent. This clearly shows, if a zemindar retains some land in his khas possession, he does not retain the land in his right as a proprietor of the soil; he retains it in a much worse position as a tenant of the State under such terms as the State may prescribe. Hence, in this case it cannot be said that an occupancy raiyat, when he retains the property, retains his own title under the tenure-holder or the proprietor; he retains it with a different title. Hence, I am of opinion that it cannot be said that section 6 provides that sections 4 and 5 would not apply at all. On the other hand, the clause “shall be entitled to retain with effect from the date of vesting” shows that vesting has some effect and the property vests and then is retained with effect from the date of vesting.

12. I have been referred to two decisions of our High Court with regard to the interpretation of the word ‘retain’. Sarkar, J. in a decision between Purna Chandra Ganguly v. Sridhar Bishnu Shalagram Thakur (5) reported in 60 C.W.N page 979, held that the dictionary meaning of the word ‘retain’ is to keep possession or to keep in possession. The question there was whether properties in which structures have been raised but are not in khas possession can be retained. His Lordship held that it would not be retained. This matter came up before this High Court in another case between Manindra Nath Bose and the State of West Bengal (6) reported in 63 C.W.N page 513 where Sinha, J. held that the dictionary meaning of the word ‘retain’ is not merely to keep possession of or to keep in possession. His Lordship referred to Stroud's Judicial Dictionary where it is stated, “to retain property means to keep it.” His Lordship then went into the question whether persons, who are not in possession, would be entitled to retain the property on which structures have been raised, and came to a different view. I am afraid, none of these two decisions is very much relevant for our present purpose. Our purpose is, when a person retains property, does he retain with his old title or does he retain it with a completely new title? I have already discussed the matter above and I have come to the conclusion that he retains the property with a new title and none of the decisions aforesaid mitigates against the views expressed by myself.

13. I cannot therefore accept the argument of Mr. Mitter in its entirety though I accept that the position might have been different, had the property vested in the State and the purchaser had no right to retain the same.

14. Now therefore, I have to consider whether by vesting of the property in the State the right of pre-emption is gone because of Section 3 of the West Bengal Estates Acquisition Act. Mr Banerjee refers to a decision of Renupada Mukherjee and Banerjee, JJ. between Hiranmoyee Dassi and Anik Paul Choudhury (2) reported in 62 C.W.N 373 where their Lordships found that the principle of implied repeal of an earlier enactment laid down in Kutner v. Philips (7) in 1891 2 Q.B 267 applied to the case referred to above because the provisions of the later enactment i.e, section 5B of the West Bengal Estates Acquisition Act were shown inconsistent with or repugnant to the provisions of section 168A of the Bengal Tenancy Act that the two could not stand together. The test of repugnancy therefore is that the two said statutes are inconsistent and cannot stand together. Therefore, I have to find out, to which section of the Estates Acquisition Act, Sec. 26F is repugnant or inconsistent. The section referred to is section 4. As I have already found, section 4 says it is the encumbrance that vests and the right created under section 26F is not an encumbrance; I must therefore hold that there is no repugnancy or inconsistency between section 26F of the Bengal Tenancy Act and section 4 of the Estates Acquisition Act. The pre-emptor's right to have a property has nothing to do with the encumbrances that are attached to the land belonging to the purchaser. There is nothing in the West Bengal Estates Acquisition Act which would show that the right of pre-emption which has accrued in favour of a third party, would cease to exist. I am afraid, this would also be inconsistent with the general policy of the law. The policy is to allow some intermediary to retain possession with a different title. It is not the intention of the Legislature that when a person retains possession, any contract or agreement to sell or any other personal agreement between him and any other person with regard to the property would cease. In my opinion, therefore, the doctrine of implied repeal has no application.

15. That there is no implied repeal by section 3 of the rights of an occupancy raiyat is also clear from section 6, sub-section (2) of the Estates Acquisition Act read with rule 4 of the rules under the said Act. It is stated in sub-section (2) that from the date of vesting the intermediary shall hold the land directly under the State subject to such terms and conditions as may be prescribed and rule 4 states the terms would be the terms of an occupancy raiyat. Hence, under the rules such intermediary would retain the plot of land with all incidence of an occupancy raiyat not excluding the right under section 26F of the Bengal Tenancy Act. Hence, the intention of the Legislature was far from repealing section 26F of the Bengal Tenancy Act or limiting the rights of an occupancy raiyat; specific provision in the Estates Acquisition Act shows clearly at least for the time being, the rights of occupancy raiyat including that under section 26F would remain. The rights of co-sharer for pre-emption would naturally remain. Hence, either on general principle or on interpretation of the statute there is no reason to hold that there has been an implied repeal of section 26F of the Bengal Tenancy Act.

16. Finally, I refer to a decision of S.K Sen, J. reported in 62 C.W.N page 360 between Ganesh Chandra and Sudarshan. Sen, J. has come to the same conclusion that the rights under section 26F which a pre-emptor gets is not in the nature of encumbrance created by the intermediary in favour of a third person. He has also found that the doctrine of implied repeal has no application. The result is that in cases where the property is retained by the purchaser the right of pre-emption would remain, but I do not express any opinion if the property is not retained by the purchaser and, if the property vests in the State, whether in those circumstances a co-sharer would be entitled to enforce his right of pre-emption as against the State for the reason that, when the property vests in the State, it cannot be said that the occupancy right would also accrue to the State. On the other hand, it may be said that the restricted right of an occupancy raiyat merges in the paramount title of the State and therefore section 26F might not apply.

17. But I am not expressing any opinion on that matter as I have not been called upon to do so in the present case. I have been referred further to section 26F, sub-section (7) on the question regarding title which would vest on the pre-emptor. I am afraid, I do not find any difficulty, as I have already held that after the vesting the purchaser would hold the property as a tenant of the State under such terms as the State prescribes and what they have prescribed now is that such persons would hold land with the rights of an occupancy raiyat. Hence, the pre-emptor will have that right, title and interest of the property; I have overruled the argument of Mr. Mitter that the old title, viz., title under tenure-holder would remain, the title would be title under the State.

18. The Rule is discharged.

19. I make no order as to costs so far as this Court is concerned.

S.K.B