The right of co-sharers to pre-empt under Section 26-F of the Bengal Tenancy Act arises on the date of registration of the vendor's deed.

( 1 ) THIS Rule has raised a somewhat interesting point, but I think it ought to be decided in accordance with authority which is all one way.

( 2 ) THE facts are these: A particular holding was sold in execution of a rent decree on 19-4-1945, and purchased by one Jyoti Prasad Mitra. Jyoti Prasad in his turn sold 15-1/2 acres of the larfd on 2-1-1950, to the petitioner. The kobala was executed on that date. On 27-3-1950, one Rajabala who is opposite party No. 1 to this. Rule purchased 32 acres of land from Jyoti Prasad, but this area did not cover, nor was it a part of the areas previously sold to the petitioner. The petitioner's kobala was presented for registration on 30-3-1950, when certain preliminaries were completed, but the actual registration did not take place on that date. On the next day, that is to say, 31-3-1950, Rajabala's kobala was registered. The petitioner's kobala came to be registered only on 10-6-1950. It is said that no notice under Section 26-C of the Bengal Tenancy Act was issued or served in respect of the sale to Rajabala, but the petitioner came to know of the sale on 16-4-1951. Thereafter on 4-6-1951, he made an application for pre-emption out of which the present Rule has arisen.

( 3 ) IT will be seen from what I have stated that the petitioner's kobala was earlier in point of time, but it was registered later than Rajatala's kobala. It was argued on behalf of the petitioner before the courts below that since, under Section 47, Registration Act, a registered document would operate from the time from which it would have commenced to operate if no registration had foeen required, that Is to say, from the date of execution, the petitioner was entitled to pre-empt the land, since his kobala, although registered on 10-6-1950, would operate from 2-1-1950, and therefore, would operate from a date earlier than the date of the execution of Rajabala's kobala. If so, he would be already a co-sharer before Rajabala's purchase was completed. The courts below have repelled that contention in the view 'that while, as between the purchaser and the vendor an instrument of transfer would take eject from the date of its execution and not from the date of registration, the position was different as against third parties. As against third parties, an instrument of transfer, if required to be registered by law, would operate only from the date of registration.

( 4 ) THE question to be decided in the Rule is which of these two views is correct. The learned Advocate for the Petitioner has drawn our attention to a series of cases on Section 47, Registration Act which undoubtedly lay down what the section itself says, namely, that a document remittable under the law takes effect upon registration from the date of its execution. Particular reliance was placed upon the decision of the Judicial Committee in the case of 'kalyanasundaram Pillai v. Karuppa Mooppanar', 1927 PC 42 (AIR, V 14) (A), where dealing with a case of a gift, their Lordships observed that: "while registration is a necessary solemnity in order to the enforcement of a gift of immovable property, it does not suspend the gift until registration actually takes place. " Founding upon that case, the learned Advocate for the petitioner contended that, equally, upon the execution of the deed of transfer in his' client's favour, the transfer would not remain suspended till the document was registered but would take effect from the date of its execution, even against third parties to whom another property might have been sold by the transferor and whose document might have been registered earlier.

( 5 ) IT appears, however, from the decided cases that Section 47, Registration Act has been construed as limited to successive transfers of the same property. Where different properties have been transferred by different instruments or where the contest is with a third party, the decisions have been in accordance with the plain meaning of Section 49