The right of pre-emption is a right in existence at the passing of the statute and is not to be applied retrospectively in the absence of express enactment or necessary intendment.

1. This revisional application is directed against the order of Sri T. Bhattacharva, Subordinate Judge, Third Court, Midnapore, allowing in appeal an application for pre-emption under section 26f of the Bengal Tenancy Act. The facts of the case are briefly as follows: there was an occupancy raiyati holding which is interest No. 319 of Gohaldanga Mouza with an area of 12 bighas held by one Chandra Mohan Sen. By amicable partition among the heirs of Chandra Mohan 7 bighas fell to the share of Bir Singh and he sold this land to opposite party No. 1, Sudarshan Dey, the applicant for preemption, by a kabala, dated the 20th April, 1951. Mahendra Sen, who obtained 5 bighas of the land of the holding and who is not petitioner No. 2, sold 1 bigha 9 chittacks of land out of his share of 5 bighas to Ganesh Chandra Mahata, who is now petitioner No. 1, by a kabala, dated the 7th August, 1955 for the consideration of Rs. 300. It is in respect of this sale dated the 7th August, 1955 that opposite party No. 1. Sudarshan Dey, filed the application for pre-emption on the 9th December 1955. The present petitioners, namely the transferee and the transferor by the kabala, dated the 7th August, 1955, filed two separate objections and opposed the application for pre-emption. They alleged that the kabala of the 7th August, 1955 was really a benami kabala and not a real transfer and that therefore no application for pre-emption was maintainable. They also took the objection that the interests of all occupancy raiyats in the Midnapore District had become vested in the State of West Bengal and that in the circumstances the application for pre-emption was no longer maintainable.

2. The learned Munsif, who dealt with the application in the first instance, decided both the issues in favour of the objectors. He held that it was really a benami transfer, there being no payment of consideration and no delivery of possession and that therefore the application for preemption was not maintainable. He also held that since the interests of the occupancy raiyats in the Midnapore District had become vested in the State of West Bengal the application for pre-emption by one such raiyat was no longer maintainable. On these findings the learned Munsif dismissed the application.

There was an appeal filed in the District Court by the applicant Sudarshan Dey. The learned Subordinate Judge, who heard the appeal, reversed the finding of the trial court on both the issues. He held that the transfer was not a benami transfer. He also held that whatever be the result of the vesting of the interest of the occupancy raiyats in the State of West Bengal, the applicant had already an existing right for obtaining pre-emption when the vesting took place and this existing right could not be defeated. The learned Subordinate Judge, therefore, allowed the application for pre-emption. Against that order the transferee as well as the transferor of the kabala of the 7th August, 1955 have, as petitioners, filed this revisional application.

3. The finding of the learned lower appellate court that the transfer was not a benami transfer is a finding on question of fact and cannot, therefore, be challenged before me. Mr. Mukherjee in this connection has only referred to the fact that the transferee, namely, petitioner No. 1, Ganesh, had executed a nadabi deed stating that he had acquired no interest in the subject-matter of the sale deed and that the learned lower appellate court did not consider the effect of the execution of the nadabi lease, which would create estoppel against the transferee, namely petitioner No. 1. The learned Subordinate Judge pointed out that the nadabi deed had been executed on the 21st December, 1955, that is 12 days after the application under section S6f of the Bengal Tenancy Act for pre-emption had been filed and in the circumstances he came to the conclusion that the nadabi deed was a collusive document executed in order to defeat the claim of the applicatio