KUTUBUDDIN AHAMMED Vs. KASHIM ALI

JUDGEMENT

(1.) This Rule was obtained by the petitioners against an appellate order of the learned Munsif, rejecting the petitioners' application for pre-emption under Section 8 (1) of the West Bengal Land Reforms Act, 1955.

(2.) One Hazi Fakiruddin, since deceased, the father of the petitioners Nos. 1-7 and husband of petitioner No. 8, was a co-sharer tenant with respect to the land in khaitan No. 235 in mouja Chandpur in the district of Malda. The opposite party No. 4, another co-sharer, on 5th of April, 1965, transferred. 223/4th acre of land out of the lands in the aforesaid khaitan to opposite party nos. 1-3, who are neither co-sharers nor raiyats possessing adjoining land of the said khaitan, for a consideration of a copy of Holi koran, under a deed described as "Heba-bil-ewaz". For the purpose of registration the said deed was valued at Rs. 1,000/-. The said Hazi Fakiruddin, thereafter, made an application on 11th of June, 1965, to the Revenue Officer praying pre-emption under Section 8 (1) of the West Bengal Land Reforms Act (hereinafter referred to as "the Act"), with respect to the above transferred land and deposited Rs. 1,000/- together with 10% interest. On 2nd of September, 1967, the Revenue Officer dismissed the said application upon the view that Heba-bil-ewaz is a gift for consideration, it may be a sale in reality but it is a gift in form. The pre-emptee took an appeal against the said order of the Revenue Officer. During the pendency of the said appeal, the said Hazi Fakiruddin died and the petitioners were substituted in place and stead of the deceased pre-emptee. The learned Munsif by his order dated 30th November, 1968, dismissed the petitioners' appeal holding that the transaction was a gift and as such, it was exempted from pre-emption under Sub-section (2) (b) of Section 8 of the Act. The petitioners, being aggrieved, against the said order of the learned Munsif, moved this Court on an application under Article 227 of the Constitution and obtained the present Rule.

(3.) Mr. Roy, the learned Advocate, appearing in support of the Rule, contended that the learned Munsif and the Revenue Officer were in error in holding that Heba-bil-ewaz was a gift, pure and simple; and, therefore, the transfer under such a deed, was exempted from pre-emption under the exception in Sub-section (2) (b) of Section 8 of the Act Mr. Roy submitted that Heba-bil-ewaz as understood in India, is nothing more than a sale as has been held by the Judicial Committee of the Privy Council as well as many of the decisions of this Court In support of his contentions Mr. Roy referred to a number of decisions.