Fuljhari Bibi vs Mosammat Rakia Khatun

Binayak Nath Banerjee, J.—This Revision case has been referred to a Division Bench by Sen, J., because his Lordship was of the opinion that certain observations, in the decision in Hirendralal Sarkar v. Kanaklata Chaudhurani (1942) 46 C.W.N. 849 about transferability of a right of pre-emption required further examination.

The subject matter of the dispute, between the parties to this application, is a tank, recorded in c.s. plot No. 492, Khatian No. 159 of Mouza Dakshin Bamnigram, in the district of Birbhum. One Jahedunnessa Bibi had two annas share in the tank and by a heba-bil-ewaj executed on February 7, 1944, she transferred her two annas share to her daughter Kasima and her grand-daughter Maslima, each of them thus obtaining one anna share. Thereafter, on February 6, 1950, Kasima transferred her one anna share to her sister Aslima, by a heba-hil-ewaj. Maslima in her turn sold her one anna share in the tank to Fuljhari Bibi, Petitioner No. 1, on March 22, 1953. Fuljhari Bibi transferred a part of her said share to Tarimunnessa (Bibi, Petitioner No. 2, by a sale deed, dated December 9, 1954, and she sold her remaining share to Sabhed Ali, Petitioner No. 3, by a sale deed executed on December 29, 1954.

Thereafter, on February 2, 1955, Kasima and Maslima sold certain properties including a share of the tank, appertaining to the jote with a rental of Rs. 5-10-6, recorded in Khatian No. 159 to several persons including Rakia Khatun, opposite party No. 1 and Razia Khatun, Opposite party No. 2. Later on Aslima sold her share in the said tank to Rakia Khatun, Razia Khatun and Rajeka Khatun, the three opposite parties, by a deed, dated May 7, 1955.

On November 22, 1955, the three opposite parties abovenamed, as applicants, filed an application for pre-emption u/s 26F of the Bengal Tenancy Act, in respect of the sale by Muslima Khatun to Petitioner No. 1, Fuljhari Bibi, on March 22, 1953.

The application was opposed by all the Petitioners and the learned Munsif dismissed the application for pre-emption. Theret was an appeal by the opposite parties and the learned District Judge, Birbhum, allowed the application for pre-emption, relying on two de cisions of this Court, namely, the Special Bench decision in Asmat Ali v. Mujahar Ali (1947) 52 C.W.N. 64 and the Division Bench decision in Hirendralal Sarkar v. Kanaklata Chowdhurani (supra).

According to the Special Bench decision, above referred to, where a co-sharer had not been served with the notice of transfer, u/s 26C of the Bengal Tenancy Act, such co-sharer could file an application for pre-emption within 3 years of the date of the sale. In the present case, when Muslima sold her share to Fuljhari Bibi, on March 22, 1953, there was no notice, u/s 26C, served on her sister Aslima Khatun, because in the sale deed it was mentioned that there was no co-sharer. But Aslima Khatun was in fact a co-sharer and since she was not served with a notice u/s 26C of the Bengal Tenancy Act, she could apply for pre-emption within 3 years of the date of sale by Muslima to Fuljhari. Since Aslima had transferred her share to the opposite parties, the learned District Judge held, the latter also could apply for pre-emption within 3 years of the date of the sale. The, learned District Judge, therefore, held that the application for pre-emption made on November 22, 1955, was not barred by limitation.

Relying on the decision in Hirendralal Sarkar Supra the learned. District Judge observed that the right of pre-emption was not merely a personal right but a right exercisable by a co-sharer by reason of his ownership of a share of the tenancy and when the share in the tenancy, to which the right was attached, was transferred, the right went along with it. The learned District Judge, therefore, held that the opposite parties had stepped into the shoes of Aslima and were entitled to apply for pre-emption.

When the matter came up in Revision, against the order of the learned District Judge, and was placed before S.K. Sen, J., for hearing, his Lordships felt doubts about the correctness of the decision in Hirendralal Sarkar Supra. The nature of doubt entertained by his Lordship we set out below, in his own language:

Now, though the decision in Hirendralal Sarkar v. Kanaklata Choudhurani Supra was made by a Division Bench consisting of B.K. Mukherjea and Blank, JJ., I think that the observation quoted above needs further examination. It appears to go against one''s natural sence of justice that a co-sharer by purchase should have the right of pre-emption in respect of sale which took place nearly two years before he became such a co-sharer. Section 26F of the Bengal Tenancy Act provides that one or more co-sharer tenants of a holding, a portion or share of which is transferred, may within four months of the service of the notice u/s 26C apply to the court for the said portion or share to be transferred to himself ox themselves. It follows from the above wording of the section that applicant for pre-emption must be a co-sharer tenant of the holding on the date of the transfer in respect of which preemption is sought. This view was adopted by a Division Bench of this Court consisting of Chakravartti C.J., and Mullick, J., in Gosto Behari Das Vs. Smt. Rajabala Dei and Another, . At page 60 it was observed as follows: "Rajabala Dai''s kobala was registered on March 31, 1950. u/s 26F of the Bengal Tenancy Act, the right of co-sharers to pre-empt arose on that date and, therefore, if I may put it in another way, all persons claiming to be entitled to pre-emption would have to be co-sharers on that day and not later. "In that case, it was held that a person whose kobala bore a date earlier than the kobala of the sale in respect of which pre-emption was sought, but which was registered later than that kobala did not have the right of pre-emption. Section 6(d) of the Transfer of Property Act provides that a right which is merely personal to an owner cannot be transferred. In his commentary on the transfer of Property Act., D.F Mulla observes that in view of this clause, the right of pre-emption cannot be transferred by an owner, because it is purely personal to the owner, and it would be against the principle of pre-emption to allow transfer of such right by an owner. In the earlier case Hirendralal Sarkar v. Kanaklata Choudhurani Supra, their Lordship observed, however, that the right of pre-emption was not a mere personal right but no authority was given for the view. The right of pre-emption is a right which attaches to a co-sharer by virtue of his being the owner of a share of the holding, but it accrues to him only if he is such owner on the date when another co-sharer sales a portion of share of the holding. A person who is not a co-sharer on the date of the sale cannot claim that right. To that extent, it appears to be personal right of the then owners, as observed by D.F. Mulla, and I have already referred to the decision of Chakravartti, C.J. and Mullick, J., that the right of pre-emption is a right which can be exercised only by those who are co-sharers on the date of the sale and not later. If so, the opposite parties being subsequent transferees could not claim pre-emption in respect of the earlier transfer.

Before his Lordship, the Supreme Court decision in Audh Behari Singh v. Gajadhar Jaipuria [1965] S.C.A. 132 was not cited and his Lordship had not the advantage of considering that decision, which might have repelled his doubts. The judgment of the Supreme Court was delivered by Mukherjea, J., the same learned Judge who had delivered the judgment in Hirendralal Sarkar Supra. His Lordship traced the history and the incidents of the right of pre-emption with particular reference to Mohammadan Law and customary law. His Lordships observed that the law of pre-emption was introduced in India by the Muhammadans. During the period of Mughal Emperors the law of pre-emption was administered as a rule of common law of the land and was applied alike to Muhammadans and Zemmees (within which Christians and Hindus were included). In course of time the Hindus came to adopt pre-emption as a custom for reasons of convenience. Since the establishment of British Rule in India the Muhammadan Law ceased to be the general law of; the land and as pre-emption is tot one of the matters respecting which Muhammadan Law is expressly declared to be the rule of decision, where the parties to a suit were Muhammadans, the courts in British India administered the Muhammadan Law of pre-emption as between Muhammadans entirely on ground of justice, equity and good conscience. Rights of pre-emption were also embodied in some statutes passed by different Indian Legislatures and where the law was thus codified, it undoubtedly became the territorial law of the place and was applicable to persons other than Muhammadans by reason of their property being situated in that territory.

On the question whether the burden and benefit of this right of pre-emption are incidents annexed to the land or a personal right, his Lordship reviewed the case law on the point, including the judgment by Mahmood, J. in a Full Bench decision of the Allahabad High Court reported in Govenda Dayal v. Inatyatulla ILR (1885) All. 775 and observed as follows:

In our opinion it would not be correct to say that the right of pre-emption under Muhammadan Law is a personal right on the part of the pre-emptor to get a retransfer of the property from the vendee who has already become owner of the name. We prefer to accept the meaning of the word "Tajibo" used in the Hedaya in the sense in which Mr. Justice Mahmood construes it to mean and it was really a mistranslation of that word by Hamilton that accounted to a great extent for the view taken by the Calcutta High Court. It is true that the right becomes enforceable only when there is a sale but the right exists antecedently to the sale, the foundation of the right being the avoidance of the inconveniences and disturbances which would arise from the introduction of a stranger into the land. We agree with Mr. Justic Mahmood that the sale is a condition precedent not to the existence of the right but to its enforceability. We do not however desire to express any opinion on the view taken by the learned Judge that the right of pre-emption partakes strongly of the character of an easement in law. Analogies are not always helpful and even if there is resemblance between the two rights, the differences between them are no less material. The correct legal position seems to be that the law of pre-emption impose a limitation or disability upon the ownership of a property to the extent that it restricts the owners unfettered right of sale and compels him to sell the property to his co-sharer or neighbour, as the case may be. The person who is a co-sharer in the land or owns lands in the vicinity consequently gets an advantage or benefit corresponding to the burden with which the owner of the property is saddled; even though it does not amount to an actual interest in the property sold. The crux of the whole thing is that the benefit as well as the burden of the right of pre-emption run with the land and can be enforced by or against the owner of the land for the time being although the right of the pre-emptor does not amount to an interest in the land itself. It may be stated here that if the right of pre-emption had been only a personal right enforceable against the vendee and there was no infirmity in the title of the owner restricting his right of sale in a certain manner, a bonafide purchaser with out notice would certainly obtain an absolute title to the property, unhampered by any right of the pre-emptor and in such circumstances there could be no justification for enforcing the right of pre-emption against the purchaser on grounds of justice, equity and good conscience on which grounds alone the right could be enforced at the present day. In our opinion the law of pre-emption creates a right which attaches to the property and on that footing only it can be enforced against the purchaser.

After the authoritative pronouncement of the law on the point by the Supreme Court the contrary observations, if any, contained in Gostha Das v. Majabala Dai Supra cannot be treated as a correct legal proposition. The right attaches to the property and whoever is the owner of the property may enforce it.

The learned District Judge was therefore, right in holding that the right of pre-emption was annexed to the land and by purchase from Aslima the opposite parties became entitled to maintain an application for pre-emption which, the learned District Judge rightly found, was filed within time.

For the reason aforesaid we discharge the Rule but make no order as to costs.

Amaresh Roy, J.

I agree.