Judgment

RANGANATHAN, J.:- All these cases involve a common point which has been decided by a Full Bench of the Calcutta High Court reported as Madan Mohan Ghosh v. Shishu Bala Atta, AIR 1972 Cal 502. Civil Appeal No. 626/ 75 is a direct appeal from the judgment of the Full Bench in one of the batch of cases dealt with therein. In the other cases, the High Court has decided the matter by following the Full Bench decision and that is the subject-matter of appeal before this Court. Basically, the question is whether the right of pre-emption conferred on co-sharers under the Bengal Tenancy Act, 1885 (hereinafter referred to as the Tenancy Act), is available to the holders after their interests in the holding have vested in the Government under the West Bengal Estates Acquisition Act, 1953 (hereinafter referred to as the 1953 Act). This question has been answered by the Full Bench (Coram: A.K. Mukherjea, Sabyasachi Mukharji and M.M. Dutt, JJ.) in the negative and it is the correctness of this conclusion that is assailed in these proceedings.

2. To provide a factual background it may be sufficient to set out the brief facts in C.A. No. 626/75. The respondent, Smt. Gangamoni Mondal, purchased, on 29-1-1983, the suit property being land measuring about 15 acres. She excavated a portion of the land, filled up other portions of it, constructed a small structure thereon and started living there from 1964. About three years and five months after her purchase, Ardhendu Bhusan Halder, the predecessor-in-interest of the appellants, made an application for pre-emption under S. 26-F of the Tenancy Act. His case was that he was a co-sharer of the holding which comprised the land purchased by the respondent. The holding was previously a Raiyati Mokarari interest and it has vested in the State under the provisions of the 1953 Act. The case of the respondent was that, though the predecessor-in-interest of the appellant and her vendor were the joint holders of the property in question, the right of pre-emption available to the co-sharer had ceased with the coming into force of the 1953 Act. The pre-emption application was allowed by the learned Munsif and his order was confirmed by the learned Additional District Judge. The respondent moved the High Court in revision. The matter came up for hearing before the two learned Judges of the Calcutta High Court who referred the matter to the Full Bench. The question, as already stated, was answered by the Full Bench in the negative with the result that the application for pre-emption stood dismissed. Hence the appeal before us.

3. The other appeals before us also involve the same point but there are some differences. We shall refer to these aspects later, to the extent necessary.

4. The question raised lies within a very narrow compass. The relevant statutory provisions may first be set out. As already mentioned, the Tenancy Act provides, in S. 26-F, that, except in the case of a transfer to a co-sharer in the tenancy whose existing interest has accrued otherwise than by purchase, one or more co-sharer tenants of the holding, a portion or share of which is transferred, may apply to the Court for the said portion or share to be transferred to himself or themselves. In other words, the section conferred, on a co-sharer tenant of an occupancy holding, a right to compel another co-sharer tenant to sell his share in the holding to him instead of to a stranger. The term "co-sharer" envisages that the holding must be under the ownership of more than one person. The holding must be an occupancy holding: that is, it must be the holding of raiyats having occupancy rights. So long as a division of the holding does not take place in accordance with S. 88 of the Tenancy Act, the holding remains a joint holding and each co-sharer will be entitled to pre-empt in case of transfer of a share or portion of the holding by a co-sharer to a stranger.

5. The 1953 Act came into force on February 12, 1954. Sub-section (1) of S.4 of