The term 'transfer' in Section 26f of the Bengal Tenancy Act includes both voluntary and involuntary sales.

( 1 ) THIS is an application in revision against the orders passed by the lower Courts allowing an application under Section 26f, Bengal Tenancy Act.

( 2 ) THE opposite party made an application on 17th September 1948 under Section 26f, Bengal Tenancy Act on the allegation that he was a cosharer with one Kshirode Das in respect of an occupancy holding which had been sold on 22nd March 1947 under the provisions of the Public Demands Recovery Act. Sasi Bhusan Singha, the petitioner before this Court, was a creditor of Kshirode Das and had obtained an award under the provisions of the Bengal Agricultural Debtors Act. The payments directed to be made under the award not having been made within the due dates steps were taken by the creditor under Section 28, Bengal Agricultural Debtors Act. The certificate sale which followed was confirmed on 23rd May 1947 but the opposite party alleged that he had no knowledge of the sale before 9th September 1948. The application for pre-emption under Section 26-F, Bengal Tenancy Act was filed on 17th September 1948.

( 3 ) VARIOUS objections were raised by the decree-holder auction purchaser, Sasi Bhusan Singha. It is not necessary for our present purpose to refer to all the different objections as only one of those has been urged before us. It is argued that the sale had taken place under Section 28, Bengal Agricultural Debtors Act, and the provisions of Section 26 F, Bengal Tenancy Act are not attracted in the case of involuntary sales. This objection had been disallowed by the Courts below.

( 4 ) SECTION 26 F, Bengal Tenancy Act provides that subject to exceptions mentioned in Sub-section (1) of that section"one or more cosharer tenants of the holding, a. portion of share of which is transferred, may, within four months of the service of the notice under Section 26-C, apply to the Court for the said portion or share to be transferred to himself or themselves. "it is contended that all the exceptions as appearing in clauses (a) to (e) refer to voluntary transfers. There is no indication that the transfer referred to in this sub-section includes an involuntary transfer. It is further contended that the reference to Section 26-C in Sub-section (1) is only for the purpose of attracting such cases where a notice is to be given under Section 26 C of the Act, Section 26c does not control Section 26f.

( 5 ) IN our view, such a restricted interpretation of Section 26f is not warranted. Reference may be made in this connection to the other parts of Section 26f and also to the provisions contained in Section 260 of the Act. Before we refer to the provisions contained in Section 26-G it may be noticed that in Sub-section (11) of Section 26f, it is provided: "in this section 'transfer' does not include simple or usufructuary mortgage or mortgage by conditional sale until a decree or order absolute for foreclosure is made. " if it were the intention of the Legislature to restrict the term 'transfer' only to cases of voluntary sales, there would have been no necessity of excluding simple or usufructuary mortgage or mortgage by conditional sale until a decree or order absolute for foreclosure is made. Let us take the case of a mortgage by conditional sale. Title passes on the final decree for foreclosure being passed. If the passing of such a decree for foreclosure is deemed to be a transfer under Section 26f, it is difficult to support the contention that only voluntary transfers were taken into consideration in this section. If a transfer which takes place on the passing of a decree absolute for foreclosure is not saved under Sub-section (11) of Section 26f, it cannot be contended that transfers by involving sales were not provided for in this section. 5a. This interpretation is, however, further supported if reference is made to the provisions contained in Section 26-C of the Act. In Sub-section (1) of Section 26-F, reference is made to Section 26-C, no doubt, for the purpose of de