A co-sharer of a property is entitled to pre-emption under Section 8 of the W. B. Land Reforms Act, 1955, and an application for pre-emption is not barred by limitation if it is filed within three years from the date of the transfer.

1. THIS rule relates to an application for pre-emption under Section 8 of the W. B. Lands Reforms Act which was allowed by the learned Munsiff, 1st Court, at Contain in Case No. 57 of 1973 on the 21st of June, 1975 and later on affirmed on an appeal by the 3rd Court of the Additional District Judge, Midnapore on the 6th of April, 1976.

2. IT appears that one Kshirode chandra Shit, since deceased, who was the owner of the disputed plot no. 865 died after the date of vesting leaving him surviving his widow, one son and three daughters. The Opposite Party, basanta Kumar Shit, the original applicant before the learned Munsiff, purchased the share of the widow and son on 2. 11. 1967. But the present petitioner before this court purchased the share of the three daughters of the said Kshirode Chandra Shit since deceased on 5. 7. 1972 and 22. 7. 1972. No notice of transfer was served on the said Basanta Kumar Shit under section 5 (5) of W. B. Land Reforms Act. The opposite party then filed the application for pre-emption under section 8 of the W. B. Land Reforms Act which succeeded.

Mr. Bhunia, the learned Advocate, appearing in support of the rule urged mainly four points before this court His first contention was that the opposite party was not a co-sharer of the property at all and as such was not entitled to pre-emption. The basis for his contention is that the opposite party made the purchase in 1967 and then mutated his name and has been paying rent separately. Therefore he could not be regarded as a co-sharer. He relied on section 50 of the W. B. Land Reforms Act particularly sub-sec. (a) and (b). The said section relates to maintenance of the record of rights by incorporating changes on account, inter alia, of (a) mutation of names as a result of transfer or inheritance and (d) variation of revenue. Mr. Bhunia contended that since the name of the opposite party was mutated and since he paid rents separately his share was separate from that of others and he could not be called a co-sharer.

3. THE Court is unable to accept the validity of the said submission. There is a difference between the splitting up of tenancy and change in the ownership. Recognition of transfer of some portions of a plot does not necessarily amount to splitting up of the tenancy. Section 50 (a) of the land Reforms Act, as Mr. Mukherjee appearing for the opposite parties pointed out, only permits mutation of name as a, result of transfer or inheritance.

4. IN this connection it may he relevant to refer in section 88 of the bengal Tenancy Act which specifically provided that a division of tenancy or distribution of rent shall not be valid unless such division or distribution has been expressly consented to in writing by both the landlord and all the co-sharer tenants. The splitting up of the tenancy can happen only as a result of the agreement of ail concerned. As was pointed out in the case of S. R. Chowdhurani v. A. N. Tagore by a division Bench of this Court reported in I. L. R. 1949 (1) Calcutta 165, Section 88 of the Bengal Tenancy Act does not contemplate distribution of a portion of the rent, which if done, may be an best an arrangement for convenience without affecting the legal rights and liabilities of either side. Moreover, section 50 as compared to section 88 of the Bengal Tenancy Act does not specifically relate to any splitting up or division of tenancy. Mr. Bhunia's argument, it seems, seeks to equate an arrangement for convenience in terms of section 50 W. B. Land Reforms Act to be converted into a sub-division of tenancy which is not contemplated by law. Mr. Bhunia's attempt to make a distinction between rent and revenue and his reference to an observation of anil Kumar Sen, J. in Civil Rule No. 2488 (W) of 1970, which was quoted by me in my judgment, Provash Chandra mondal v. State of West Bengal, reported in 81 C. W. N. page 1026 at p. 1031 are also of no avail. Sen, J's observation which was relied on is that the petitioner "had