The right of pre-emption under Section 26F of the Bengal Tenancy Act, 1885, does not apply to transfers of shares in a holding where the co-sharers became co-sharers of a new tenancy created by operation of law under the Estates Acquisition Act, 1956, and not by purchase.

1. THIS is a petition under section 115 of the Code of Civil Procedure. The purchasers are the petitioners in a matter relating to pre-emption under section 26f of the Bengal Tenancy Act. The opposite Party No. 1 is the pre-emptor.

2. THE factual position on the findings of the courts below is that the purchasers petitioners, the pre-emptor opposite party No. 1 and the vendor amongst others were co-sharers of a holding. It is also clear that the petitioners got their share in the holding by purchase. The Courts below allowed the application for pre-emption. The question that was urged in the courts below was whether the opposite party pre-emptor was a co-sharer of the holding or not. That being the single question, the Courts answered that question in the positive and allowed pre-emption. As I have stated above, on the findings of the Courts below it cannot be challenged in this court that the opposite party No. 1, the pre-emptor, was not a co-sharer of the holding. Therefore, prima facie, it appears that the application should have been allowed.

It has been urged in this Court that the opposite party No. 1 may be a co-sharer, but the transfer was to the petitioners and the petitioners became co-sharers by purchase. It is urged that ordinarily there is pre-emption by a co-sharer if there is a transfer, but if the transfer is to a co-sharer, then there is no pre-emption. Again if the transfer is to co-sharers whose existing interest accrued by purchase, even then there would be pre-emption. It was held in the Courts below that the petitioners purchased their share in the holding in 1953. Therefore, they became co-sharers by purchase and the result would be again that there would be pre-emption because the transfer would be to persons whose existing interest was acquired by purchase. If the position rests there, then I have no difficulty in agreeing with the Courts below that the petitioners being co-sharers by purchase, pre-emption would still be available but there is a further difficulty.

3. BY an amendment of the Estates acquisition Act in 1956, subsequent to this purchase in 1953 the interest of the occupancy raiyats was declared to be deemed to be that of an intermediary. The result was that under section 4 of the Estates Acquisition Act the interest of the intermediaries would vest in the State of West Bengal free from all encumbrances and, therefore, the interest of the tenants as tenants under the then landlord would cease and the tenancy would cease. Therefore, whatever interest, the parties had, before the vesting under the Estates acquisition Act, would be extinguished and the original rights of the parties would be gone. The interest of the petitioners by virtue of their purchase in 1953 (before the vesting) as co-sharers of the tenancy then existing would cease, but subsequent to such vesting and as a result of such vesting the persons, who are deemed to be intermediaries, would still be entitled to retain the land and if they retain the land, they would become tenants of a new tenancy under the State of West Bengal on such terms as the State may prescribe. The terms have now been prescribed under the rules and under the rules if the land is agricultural, they would retain the land under the State with the right of an occupancy raiyat. Hence, at the date of the application for pre-emption which was subsequent to the date of vesting or at the date of the transfer in question which was also subsequent to the vesting, the interest of all the co-sharers in the new tenancy was created not by any act of parties nor by any purchase but by operation of law, namely, the provisions of the Estates acquisition Act and the rules thereunder. Therefore, the opposite party no. 1 and the petitioners ceased to be co-sharers of the original holding but became co-sharers of a new holding under the State of West Bengal.

4. HENCE, if the former co-sharers retained their interest in the land and became co-sharers by virtue of the