B.P. Banerjee, J. - (1.) This revisional application was at the instance of the pre -emptee/Petitioner who was a stranger purchaser of the property in question for which the Opposite parties herein had filed an application for pre -emption and is against the Order No.22 dated 23rd September, 1983 passed by the learned Munsif, Arambag, in Misc. case No. 61 of 1981, whereby the learned Munsif rejected an application under Sec. 151 of the Code of Civil Procedure filed by the pre -emptee/petitioner on the ground that one of the applicants for pre -emption, namely, the opposite party No. 4 herein was a minor and, as such, the said application for pre -emption should be rejected. The learned Munsif rejected the said application u/s. 151 of the Code of Civil Procedure simply observing that "this applicant's contention appears to be flimsy and therefore not acceptable". The facts of the case are briefly as follows : The opposite parties herein filed an application u/s. 8 of the West Bengal Land Reforms Act 1955 (hereinafter referred to as the said Act') for exercising their right to purchase as contiguous tenants in respect of.33 acres of land in Mouza Serampore appearing to R. S. Khatian No. 366. The disputed land originally belonged to one Sri Gour Hari Ghosh who sold the same to the pre -emptee/petitioner in the year 1980 by Deed No. 4869 which was registered on 29.7.81 for a consideration of Rs.7,000/ -. The opposite parties being adjoining owner of the land made an application u/s. 8 of the said Act for purchase of the said property after depositing the requisite money. One of the four brothers (applicants), namely, opposite party No. 4 herein was admittedly a' minor on the date of making the said application. After service of notice upon the petitioner, the petitioner appeared before the learned Munsif and filed an application u/s. 151 of the Civil Procedure Code for dismissal of the said application u/s. 8 on the ground and in view of the provisions of Sec. 11 of the Hindu Minority and Guardianship Act 1956 (hereinafter referred to as 'the Act') read with Sec. 5 of the Act, the said application for pre -emption was not maintainable inasmuch as Sec. 11 of the Act provides that after the commencement of the Act no person shall be entitled to dispose of or deal with the property of a Hindu minor merely on the ground of his/her being the defacto guardian of the minor and that as Sec. 11 of the Act puts an embargo to deal with the property of the minor, the application for pre -emption by the minor represented by the next friend elder brother, Mahapada Samanta, opposite party No. 1 herein, was not maintainable. The Opposite Parties opposed the said application u/s. 151 of Civil Procedure Code contending that the said application u/s. 8 was maintainable as per the provisions of Order 38 rule 1 of the Civil Procedure Code.
(2.) Mr. Saktinath Mukherjee, learned Advocate appearing for the petitioner, contended that Sec. 11 of the Act brings about a material change in the law relating to defacto guardian or defacto manager of a Hindu Minor's estate for which no person has the right or authority to do any act as the defacto guardian of such minor. It was submitted that in view of the provisions of Sec. 5 of the Act, the Act gives over -riding effect to the provisions of this Act in respect of matters dealt with in the Act and it seeks to repeal all existing law, in the matters dealt with in it, whether in the shape of enactment or otherwise which may be inconsistent with it. It was submitted that the provisions of Sec. 11 of the Act take away the authority of any person to deal with or dispose of any property of a Hindu minor on the ground of his being a defacto guardian of such minor. Mr. Mukherjee next contended that as because Sec. 11 of the Act puts an embargo in this behalf, a property cannot be purchased by the minor through its defacto guardian. It was further submitted by Mr. Mukherjee that the application for pre -emption u/s. 8 of the Land Reforms Act has to be dealt with in accordance with the procedure laid down in Sec. 9 of the said Act which lays down elaborate procedure as to the manner in which notice is to be served, nature of enquiry that may be made and also contains provisions for appeal against the order. Mr. Mukherjee drew my attention not only to Sec. 9 for also to Sec. 57 of the said Act which provides for power to compel production of records and documents and to enforce attendance of witnesses and pointed out that for the purpose of exercising all these powers, provisions of Civil Procedure Code regarding issuing of summons, enforcing attendance and examination of other witnesses, requisitioning published records, issuing commission, enforcing or executing orders or remanding the case etc., were made applicable. In other words, Mr. Mukherjee submitted, the provisions of Civil Procedure Code except what was adopted by the aforesaid two Ss. have been excluded. Mr. Mukherjee further submitted that the procedure for suits by or against a minor are specifically laid down in Order 32 Rules 1 and 2 of the Code of Civil procedure and submitted that in the absence of any provision in the West Bengal Land Reforms Act adopting the same, provisions of Order 32, Rules 1 and 3 of the Code of Civil Procedure would not apply in the case of an application for pre -emption under this Act. Sec. 11 of the Act provides as follows : " After the commencement of this Act no person shall be entitled to dispose of or deal with the property of a Hindu minor merely on the ground of his/her being the defacto guardian of the minor".
(3.) Mr. Mukherjee submitted that the expression 'deal with' also means 'buying' as well as 'selling'. The support of this contention, Mr. Mukherjee relied upon a Queens Bench decision in the case of Mecanzie v/s. Day, reported in (1893)1 Q.B. 289 where Lord Colendge, C. J., held; " The plain meaning of the word 'deal with' unquestionably extends to buying as well as selling.";