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1952 Supreme(Cal) 137
HIGH COURT OF CALCUTTA
K. C. Das Gupta, Guha Ray
DHANANJOY MALLICK - Appellant
Versus
ANNADA CHARAN MAITY - Respondent
Civil Rule 1877 Of 1951
Decided On : JULY 8, 1952
MANINDRA KRISHNA GHOSH, SARAT CHANDRA JAIN
A co-sharer's right to pre-empt under Section 26F(1) of the Bengal Tenancy Act, 1885, is not barred by limitation if he fails to join in an application filed by another co-sharer under Section 26F(4)(a), and a co-sharer is not estopped from asserting that the tenancy in question is an occupancy raiyati holding if his father had previously described it as a mokarari raiyati holding in a kobala.
Headnote:
PRE-EMPTION - BENGAL TENANCY ACT, 1885 - SECTION 26F(1), 26F(4)(A) - CO-SHARER'S RIGHT TO PRE-EMPT - LIMITATION - ESTOPPEL - Whether a co-sharer's right to pre-empt under Section 26F(1) is barred by limitation if he fails to join in an application filed by another co-sharer under Section 26F(4)(a) - Whether a co-sharer is estopped from asserting that the tenancy in question is an occupancy raiyati holding if his father had previously described it as a mokarari raiyati holding in a kobala.
Fact of the Case:
Annada Maity, a co-sharer in a tenancy, filed an application for pre-emption under Section 26F(1) of the Bengal Tenancy Act, 1885, after another co-sharer, Haradhan Ghorai, had filed a similar application under Section 26F(4)(a). The petitioner, Dhananjoy Mullick, who had purchased the tenancy from Bhagabati Charan, who had purchased it from Krishna Prosad Maity, Annada's father, argued that Annada was estopped from asserting that the tenancy was an occupancy raiyati holding because Krishna Prosad had described it as a mokarari raiyati holding in the kobala to Bhagabati Charan. He also argued that Annada's application was barred by limitation because it was not filed within the period specified in Section 26F(4)(a).
Finding of the Court:
The court held that Annada's application was not barred by limitation because the period of limitation applicable to applications under Section 26F(1) is governed by Article 181 of the Limitation Act, which provides a period of three years from the date of the sale, and not by the period specified in Section 26F(4)(a), which applies only to applications to join in an application already filed by another co-sharer. The court also held that Annada was not estopped from asserting that the tenancy was an occupancy raiyati holding because there was no evidence that Dhananjoy had relied on Krishna Prosad's statement in the kobala when he purchased the tenancy.
Issues: 1. Whether Annada's application was barred by limitation because it was not filed within the period specified in Section 26F(4)(a). 2. Whether Annada was estopped from asserting that the tenancy was an occupancy raiyati holding because Krishna Prosad had described it as a mokarari raiyati holding in the kobala to Bhagabati Charan.
Ratio Decidendi: 1. The period of limitation applicable to applications under Section 26F(1) is governed by Article 181 of the Limitation Act, which provides a period of three years from the date of the sale, and not by the period specified in Section 26F(4)(a), which applies only to applications to join in an application already filed by another co-sharer. 2. There was no evidence that Dhananjoy had relied on Krishna Prosad's statement in the kobala when he purchased the tenancy, and therefore Annada was not estopped from asserting that the tenancy was an occupancy raiyati holding.
Final Decision: The court dismissed the petitioner's application and upheld the order allowing Annada's application for pre-emption.
( 1 ) TWO questions of law are raised in this application against an order allowing an application for pre-emption, which was filed under the provisions of Sub-section (1) of Section 26f, Bengal Tenancy Act. The first is whether the petitioner is estopped from saying that the tenancy in question was an occupancy raiyati holding. The second is whether the application was barred by limitation.
( 2 ) THE tenancy in question appears to have belonged to a number of co-sharers including Krishna Prosad Maity whose son Annada Charan Maity has filed the present application under Section 23 F (1) and others. Krishna Prosad sold a portion of his interest to one Bhagabati Charan and in the Kobala described the tenancy as a raiyati mokarari holding. That sale took place on 14-8-1919. On 2-11-1946, Bhagabati Charan sold this very interest to Dhananjoy Mullick. One Haradhan Ghorai filed an application under Section 26 F (1) on 21-4-1949. The present application by Annada Maity has been filed on 20-9-1949. It is admitted that notice under Section 26 C, Bengal Tenancy Act was not served on Annada Maity though he as a co-sharer was entitled to it. It was urged on behalf of the present applicant that the application by Annada Maity not being within the period mentioned, Sub-section 4 (a) of Section 26 F, Bengal Tenancy Act must be held to be totally barred. This argument overlooks the fact that the present application by Annada Maity is not the application to join in the application filed by Haradhan Ghorai. It is an independent application one under Section 26 F (1), Bengal Tenancy Act. Mr. Janah on behalf of the petitioner contended that clause (a) of Sub-section 4 of Section 26 F, Bengal Tenancy Act does, by implication, take away a co-sharer's remedy under Sub-section 1 of Section 26 F. This contention, in my opinion, should not prevail. The remedy given to a co-sharer by Sub-section (1) is to apply to a Court for the portion which has been sold 'to be transferred to himself. The remedy in Clause (a) of Subsection (4) is to apply to join in an application which has already been filed by some other co-sharer tenant under Sub-section (1 ). It is quite clear that these are two distinct remedies. The matter is made very clear by the concluding words of Sub-section 4 (a) which runs thus: 'any co-sharer tenant who has not applied under either Sub-section (1) or this Sub-section shall not have any further power of purchase under this section'. These words clearly indicate that the Legislature's intention was to treat the two remedies as distinct and independent.
( 3 ) THAT the remedies are independent was the view taken by Mukherjea" J. sitting singly in the case of 'jahiruddin Gain v. Mohammad Shoukat Ali Biswas', 52 Cal. W. N. 95. His Lordship observed in this case thus: 'a glance at the language of Sub-section (4) would convince anybody that the provision embodied therein is merely permissive, and the 1st line of the paragraph makes it perfectly clear that a co-sharer has a two-fold remedy open to him, namely, either to make an independent application under Sub-section (1) of Section 26 F, or to join in an application already made by another cosharer as provided for in Sub-s. (4 ). '
( 4 ) AS the co-sharer Annada Maity had his independent remedy to apply under Sub-section (1) of Section 26 F, the period of limitation applicable must be governed by Article 181, Limitation Act as laid down in the case of 'asmatali Sharip v. Mujaharali Sardar', AIR 1948 Cal. 48. He is in no way concerned with the period of limitation as laid down for applications under Sub-section 4 (a) of Section 26 F, Bengal Tenancy Act.
( 5 ) THE decision in the case of 'abdul Aziz Khan v. Lalit Mohan', on which reliance was placed by Mr. Janah is, in my judgment, of no application to the case as in that case what their Lordships had to consider was the period of limitation applicable to an application 'to join as a co-petitioner under Section 26 F (4) of
