GOAS ALI BHUIYA Vs. LAL MIA

JUDGEMENT

(1.) The question involved in this Rule is whether an heir of a person who purchased a share of an occupancy holding before 1928 but was not recognized by the landlord, is protected from pre-emption Under Section 26F(1)(a), Bengal Tenancy Act, in case he purchases a further share of the holding. The Court below has answered the question in the negative for reasons which, the petitioners contend, are erroneous.

(2.) The relevent facts are as follows. One Shafi was the original holder of an occupancy holding" consisting of a little over 8 kanis of land. In June 1900, he sold an is gandas share of the holding to one Maharam Ali, who was the father of" petitioners 1 and 2 and great grandfather of petitioner 3. Maharam Ali was not recognised by the landlord as a tenant. In 1907, Shafi made a second, sale and thereby transferred 2 kanis 8 gandas and 1 kara of land; out of the same holding to one Mahammad Waif. Shafi died in 1920 and on 9-4-1925 some of his heirs who a re opposite parties No, 1-3 to this rule, and his widow, Alekjan Bibi now dead, transferred a further 2 Kanis and 8 Gandas of land to Mahammad Wali and at the same time executed in his favour an indemnity bond for Rs. 400 as a security for quiet enjoyment against other co-sharers. On the death of Maharam Ali in 1931, his heirs, petitioners 1 and 2, inherited his properties and on 28-10-1945, petitioner 1 made a gift of a 3 1/4 gandas interest in the holding to his grandson, petitioner 3. Meanwhile, Mahammad Wali had died in 1941. On 11-3-1946, the petitioners, along with opposite party 8, purchased from some of the heirs of Mahammad Wali a 12 annas share of his interest in the holding as also the rights of the vendors under indemnity bond. Thereupon, the heirs of Shafi, who are opposite parties 1 to 7, applied for preemption Under Section 26F, Bengal Tenancy Act.

(3.) The application was resisted by the petitioners and opposite party Section It is not necessary to refer to defences which have been disposed of by the findings of the Courts below and were not pressed further before Rs. The main contention of the purchasers was that before the present transfer, the petitioners were already co-sharers in the tenancy whose existing interest had accrued otherwise than by purchase and accordingly their share under the present transfer was protected from pre-emption Under Clause (a), Section 26P(1). Petitioners 1 and 2, it was said, had acquired the 18 Jgartdae interest of their father Maharam Ali by inheritance from him; and petitioner 3 had ac quired a 3j gandas interest by gift from petitioner 1. But although opposite party 8 was a party to the petition of objection, it was not disputed at the trial that he being a stranger to the tenancy, his interest was preemptible.