Ramanuj Ojha vs Nirmal Chandra Majhi

Renupada Mukherjee, J.—A short but interesting question of law is raised in this revisional case, which does not appear to be covered by any direct decision of this Court. The question is whether an application for pre-emption u/s 26F of the Bengal Tenancy Act filed after the execution of a deed of sale, but before its actual registration, should be dismissed in limini as being premature and not entertainable in law. This question has arisen under the following circumstances:

Opposite parties Nos. 1 to 6, who filed an application for pre-emption in the trial court are admitted by co-sharers of an occupancy rioti-holding bearing a jama of Rs. 9-8 and recorded in C. S. Khatian No. 21 of Mouza Benagoria and opposite Parties Nos. 7 and 8 have the remaining 8 annas as share. The two last mentioned opposite parties sold on 5th May, 1952, 41/2 decimals of land of this rioti-holding to opposite party-No. 9 Joynarayan Tewari for a consideration of Rs. 400 and two days later Joynarayan Tewari sold the same land to Petitioner Ramanuj Ojha for Rs. 500. The first kabala was actually registered on the 6th June, 1952 and the second kabala in favour of the Petitioner on the 9th June, 1952. In the meantime opposite parties Nos. 1 to 6 filed an application for preemption on the 3rd June, 1952, i.e., a few days before the registration of both these kabalas after depositing the consideration money on the 2nd kabala along with the statutory compensation of 10 per cent, in the first court of the Munsif at Asansol. The proceedings were contested before the learned Munsif, but ultimately the application for pre-emption was allowed ex parte on the 16th January, 1954. Thereupon, an appeal was preferred by Ramanuj Ojha, the purchaser, under the second kabala, but his appeal was dismissed by the learned Subordinate Judge and the order of the Munsif was confirmed. Against this order of the learned Subordinate Judge the present Rule was obtained by Petitioner Ramanuj Ojha.

Mr. Mitter appearing on behalf of the Petitioner contended that a right of pre-emption u/s 26F of the Bengal Tenancy Act accrues to a co-sharer of an occupancy rioti holding only after its transfer u/s 260 of the same Act and as the transfer of an occupancy can only be effected by a registered instrument save in some cases excepted u/s 260, it must be held that there is no valid and complete transfer of an occupancy rioti-holding until the kabala is actually registered. Mr. Mitter argued that there is no cause of action for preemption until actual registration of the deed and as the application for pre-emption was filed in the present case before the actual registration of the conveyances the application was not entertain able.

In support of the above contention Mr. Mitter drew my attention to a Division Bench case reported in Gobardhan Bar v. Gunadhar Bar (1940) 44 C.W.N. 802. In this case Mukherjea J. held that in determining whether a particular transaction would be governed by the old section of the Bengal Tenancy Act or the new section, the material date to be considered is not the date of execution of the deed but that of its registration when only the transfer is completed. The facts of this case would show that a part of an occupancy rioti-holding was transferred on the 9th August, 1938. The document was registered on the 24th August following. In the meantime the Bengal Tenancy Amendment Act of 1938, which for the first time gave a co-sharer tenant the right of pre-emption, came into force on the 18th August, 1988. The co-sharer tenant applied for pre-emption after the date of registration of the deed. Upon these facts it was contended on behalf of the purchaser that the kabala having been executed on the 9th August, 1938, a right of pre-emption accrued in favour of the landlord under the old Act as soon as the conveyance was executed. This contention was repelled by the Court and it was held that the date of registration is the material date and no right of pre-emption could possibly accrue in favour of a co-sharer tenant after the Amendment of 1938 until the document of transfer was registered.

This case was followed by Das J. in another case reported in Debendra Nath Sen v. Ganendra Nath Basu (1948) 53 C.W.N. 107.

The view propounded by Mukherjea J. also gets support from another case reported in Gosto Behari Das Vs. Smt. Rajabala Dei and Another, where Chakrabartti C.J. sitting with Mallick J. held that a person claiming to pre-empt an occupancy rioti-holding u/s 26F of the Bengal Tenancy Act can do so only after his own document has been registered.

It would follow from the above decisions that for the purpose of Section 26C or Section 26F of the Bengal Tenancy Act, a transfer is not complete till after the registration of the instrument of transfer. Section 26F lays down that except in the case of some transfers specified in that section, one or more co-sharer tenants of an occupancy rioti-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 or themselves. This shows that an application for pre-emption can be made only after a holding or a portion of it has been validly transferred after the registration of the instrument of transfer.

Mr. Day appearing on behalf of the contesting opposite parties contended that u/s 47 of the Registration Act a registered instrument operates from the date of its execution and not from the date of its registration. Mr. Dey also submitted that in this case the application for pre-emption had been filed on the 3rd June, 1952 and the two documents of transfer had been presented for registration on 5th May, 1952 and 7th May, 1952 and that these dates should be taken as the dates of registration because the actual orders of registration made by the Sub-Registrar later on 6th June, 1952 and 9th June, 1952, must be taken to be mere formal and mechanical orders. In my opinion, there is no substance in this contention because the registration of a document is not complete u/s 60 of the Registration Act until the Sub-Registrar endorses a certificate thereon containing the words "registered". In this case this certificate was endorsed on the two deeds of sale on 6th June, 1952 and 9th June, 1952, that is, several days after the filing of the application for pre-emption. The transfers were not, therefore, complete for the purpose of Section 26F of the Bengal Tenancy Act until those dates of actual registration.

Mr. Dey further contended that even if there was this defect in presenting the application for pre-emption before the learned Munsif, the defect was a technical one and as subsequent facts revealed that the documents were actually registered, the defect should be ignored in accordance with the provisions of Section 99 of the Code of Civil Procedure. He also submitted that the fact of subsequent registration of the deeds should be looked into for shortening the litigation and for the ends of justice. In support of his contention Mr. Dey cited a case reported in Ram Ratan Sahoo v. Bishun Chand (1907) 11 C.W.N. 732. In my judgment that case is of no assistance to Mr. Dey, because in the present case we are concerned with the question of jurisdiction, which question certainly did not arise in the case cited above. Section 26F of the Bengal Tenancy Act is to some extent restrictive of free alienation and so that section should be strictly construed. The learned Munsif had no jurisdiction to receive the application in question as no cause of action had arisen on the date the application was filed. That being the case, this is a fit case where the revisional jurisdiction of the High Court should be exercised.

In the result, this Rule is made absolute. The orders passed by the courts below are hereby vacated and the application for pre-emption would stand dismissed as it was not entertainable by the learned Munsif.

In view of the special circumstances of this case I direct that the parties will bear their own costs throughout.

Opposite parties Nos. 1 to 6 will be entitled to withdraw the amount deposited by them in the trial court.