- (1.) These five Rules were issued at the instance of the Petitioners and they are directed against an order of the District Judge of Birbhum passed on February 2, 1952, whereby he dismissed five appeals taken before him by the present Petitioners against an order of the Munsif, first court, Rampurhat, dated September 17, 1951. By the last mentioned order the Munsif of Rampurhat dismissed five applications under Section 26F of the Bengal Tenancy Act which were tried analogously and which had been filed before him by the Petitioners of the five cases now heard by me. The following facts may be stated for the purpose of understanding the point in controversy between the parties. Hedat Mondal, opposite party No. 2 in all the cases, executed a hebd-bil-ewaj in favour of his grand-daughter Kamrezvan Bibi, opposite party No. 1, in all these cases, on Baisakh 25, 1358 B.S. (May 9, 1951). The document was executed for a consideration of Rs. 7 which was given in the shape of one jainamaj valued at Rs. 4-8 and one tasbi (a string of beads) valued at Rs. 2-8. The properties covered by the heba-bil-ewaj comprised some occupancy raiyati holdings in which the Petitioners of these cases were co-sharers along with Hedat Mandal, the executant of the heba-bil-ewaj. After the transfer the Petitioners launched five pre-emption proceedings under Section 26F of the Bengal Tenancy Act in the first court of the Munsif of Rampurhat upon depositing in each case, the proportionate value of the properties transferred under the heba-bil-ewaj together with the statutory- compensation. All the cases were tried analogously by the Munsif who dismissed the applications on the ground that they were not maintainable. This finding of the Munsif was upheld by the learned District Judge, though on a somewhat different ground and so the Petitioners have come up in revision.
(2.) The document of heba-bil-ewaj which forms the basis of the pre-emption applications was marked Ex. B in the trial court. First of all, I shall address myself to the question whether the construction put by the lower appellate court upon this document is correct. That court seems to be of opinion that the document is not really a heba-bil-ewaj but it is a gift which was executed by the grand-father in favour of his grand-daughter out of love and affection in order to make some provision for the maintenance and residence of the grand-daughter. On a perusal of the document I am clearly of opinion that this construction put upon the document is wholly unwarranted. Not only has the document been mentioned at several places as a heba-bil-ewaj but it has clearly been stated that the properties were given to the grand-daughter in exchange for one Jainamaj valued at Rs. 4-8 and a string of tasbi valued at Rs. 2-8. There is, therefore, no reason for construing the document as a heba and not a heba-bil-ewaj. The construction put upon the document by the lower appellate court being clearly wrong, I hold that the document was, as it purports to be on the face of it, a heba-hil-ewaj and nothing more or less.
(3.) It was contended by Mr. Lala appearing on behalf of the Petitioners that the document being a heba-bil-ewaj, the Petitioners were within their rights in claiming pre-emption under Section 26F of the Bengal Tenancy Act and that the courts below were not justified in holding 'that no pre-emption application was maintainable on the basis of such a document. I have already observed that the reasons given by the lower appellate court for holding that the pre-empting applications are not maintainable on the basis of this document, are incorrect. I shall presently consider whether the reasons given by the trial court for holding that no pre-emption application can be maintained on this document are correct. In this connection it will be necessary to quote the following portion of Section 26F of the Bengal Tenancy Act: (1) Except in the case of? * * * (c) a transfer by bequest, or gift (including heba but excluding heba-bil-ewaj for any pecuniary consideration) in favour of the husband or wife of the testator or the donor or of any relation by consanguinity within three degrees of the testator or donor, or * * * 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 the notice under Section 26C, apply to the court for the said portion or share to be transferred to himself or themselves.;