SACHINDRA NATH CHAKRAVARTY Vs. TRAILAKYA NATH CHAKRAVARTY

JUDGEMENT

(1.) The two petitioners before me and sixteen other persons are the immediate landlords of an occupancy holding. The tenants transferred their holding to certain persons for a price of Rs. 90 by a registered conveyance. The notices of transfer required to be filed with the registration officer under Section 26-C, Tenancy Act, were served on all the landlords on 5th March 1935. Two of these landlords, namely, the two petitioners before me, made, on 2nd May 1935 an application for pre-emption under Section 26-F (1). They made the transferees and the remaining landlords opposite parties to their application for pre-emption. In the said application they stated that they had one anna nine gundas and two krants share in the landlords interest and the landlords opposite parties had the remaining shares therein. Notice of this application was served on the cosharer landlords on 22 May, 1935. On 1 Juno 1935, two of them, namely the opposite parties before me, appeared and made an application. They have 5 as 6 gundas 2 karas and 2 krants share, that is one-third share, in the landlords interest. In the said application they stated that the petitioners before me have a small share and if they are allowed to pre-empt the whole, they would suffer great loss. They, the said opposite parties, then went on to state that they have not been able to collect the money which they are required by law to deposit for enabling them to join in their co-sharer's application for pre-emption. They then state as follows: "Accordingly these opposite parties after depositing the money according to their share will join in the application for preemption." The prayer is for some time to make the said deposit. On this application the Court made the following order on 1 June 1935: Notice duly served. Opposite parties Nos. 8 and 9 co-sharer land-lords (the opposite parties before ma) want time to join the petitioners in their claim for pre- emption by depositing the requisite money. Case adjourned to 21 June 1935 for hearing. Opposite parties Nos. 8 and 9 may deposit the requisite amount and join as co-petitioners by the next date.

(2.) The opposite parties deposited on 21 June Rs. 33 by a challan. The challan shows that Rs. 30 was deposited on account of the price (being one third thereof) and Rs. 3 as compensation. No formal application was made at a later stage by them praying for becoming co-applicants for pre-emption. The transferees did not contest the application for pre-emption. The contest is between two sets of landlords, namely the petitioners and opposite parties before me, and if the opposite parties succeed they would be entitled to have two-third shares in the holding and the petitioners one-third share, because the proportion of their shares in the landlords interest is 2 to 1. In fact the said parties have been allowed by the learned Munsiff to pre-empt according to the said proportion. The petitioners contended before the lower Court and also before me that the opposite parties cannot be allowed to pre-empt for two reasons, namely: (a) that they never made any application for becoming co-applicants for pre-emption, and (b) that the deposit made by them was out of time, the learned Munsiff having no power to extend the time for deposit beyond 2 June, 1935, i.e., beyond one month of the filing of the petitioner's application for pre-emption. Before I deal with these points and the reason given by the learned Munsiff for overruling them it is necessary to examine in some detail the provisions of the statute on the subject. When a landlord or the whole body of landlords or some of the co-sharer landlords apply for pre-emption under Sub- section 1 of Section 26-F, he or they, as the case may be, must deposit in Court with the application the price of the property as stated in the notice of transfer and ten per cent compensation. When such an application is made some days before the last date unaccompanied by such a deposit, but the deposit is made later on but within the period of limitation, a question may be and has been raised in some of the reported cases, as to whether there is sufficient compliance with the statute. On this point there is a divergence of judicial opinion [see Girish Chandra Ghose V/s. The Jadapur Estate Ltd. 1935 Cal 389; Sidheswara Prosad Choudhury V/s. Gendu Mia (1935) 61 C L J 27]. I am not called upon in this case to decide this point, and if I had been, I would be inclined to the view expressed by Mitter, J. in the case in Sidheswara Prosad Choudhury V/s. Gendu Mia (1935) 61 C L J 27.

(3.) In the case where some of the co-sharer landlords apply for pre-emption under sub Section 1 of Section 26-F, the remaining co-sharers must be made opposite parties, either in the application as originally filed or by an application for amendment made within one of the two periods of time mentioned in Sub-section 4 (a) of Section 26-F. This is my view of the effect of Section 188. The words "giving opportunity of joining in the proceedings" occurring in that section mean this: It is not necessary that the co sharer landlord applicant must invite the remaining co-sharer landlords made opposite parties by him to come forward and join in his application for pre-emption, nor is he required to give his consent to their so joining. All that he is required to do is to place his co-sharer landlords so far as the proceedings are concerned in a position to join in the pre-emption if they like. It would be for the Court to call upon the said co-sharer landlords opposite parties to join in the application for pre-emption by inserting such a direction in the summons. This is in my judgment the effect of the cases in, Muhammad Garib Hossain Mia V/s. Sm. Halimannessa Bibi 1936 Cal 231, Gajendra Nath Mandal V/s. Kunja Behary Mistry 1936 Cal 388 and of Section 148-A (2). The absence of an express statement in his application for pre-emption to the effect that he has no objection to his co- sharers joining in his application for pre-emption or that he would be willing to treat them as co-applicants is not required and its absence would not make his application for pre-emption, if it is otherwise good, a bad one. It is not necessary in this case to consider the provisions of Sub-section (3) of Section 26-F.