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Civil Revision Case Nos. 1281 and 1282 of 1961, decided on 5th January 1962.

S. 96 (2)‑Pre‑emption proceedings at instance of co‑sharer tenant‑No party except other co‑sharer tenants of holding and transferee to be made parties‑Proceedings at instance of tenant holding land contiguous to land transferred‑Not only co‑sharer tenants but all persons holding land contiguous to land transferred, necessary parties.

Benamdar can sue and be sued and can be deemed to represent real owner in litigation with third party.

S. 96‑Addition of parties‑Procedure laid down in O. I, r. 10(5), Civil Procedure Code (V of 1908) to be followed‑Proceedings against added party deemed to commence only on service of summons on him‑Limitation Act (IX of 1908), S.22.

S. 96‑No one co‑sharer can get whole property by pre‑emption Rate-able pre‑emption as laid down in section 96 to be effected.

S. 96‑Co‑sharer tenant can join application for pre‑emption within prescribed period referred to in S. 96 (1) or within two months from date of service of notice of application under S. 96 (3) (b) whichever be earlier.

S. 96 (4)‑Co‑sharer tenant wishing to join as CO‑applicant for rate-able pre‑emption‑Relevant date for computing time date of knowledge of transfer by such tenant not that of original applicants.

Ss. 96 (4) & (1)‑Application for rate-able pre‑emption under S. 96 (4)‑Not possible in absence of application under S. 96 (1).

Meser Ali for Petitioners.

T. Talukdar with A. K. M. Siddlque for the Opposite‑Parties.

These two Rules arise out of two applications under section 96 of the East Bengal State Acquisition and Tenancy Act, 1950 (hereinafter referred to as the Act) asking for pre emption with regard to two Kabalas dated 21‑4‑60. The kabalas were executed by opposite‑party No. 3 Abdul Ghani Sardar and opposite‑party No. 4 Muhammad Ali Munshi in favour of petitioners Nos. 2 to 6 of whom petitioner No. 2 is a major and petitioners Nos. 3 to 6 are minors represented by their father petitioner No. 1 Haji Wahab Ali Rari.

2. The applications for pre‑emption were filed on or about 19‑8‑60, against the vendees as named in the kabalas. The petitioner No. 1 who had purchased some portions of the holding by an earlier kabala Exh. A dated 14‑2‑59, corresponding to 2nd Falgoon, 1365 B. S. was not, however made a party as a co‑sharer tenant in terms of subsection (2) of section 96 of the said Act.

3. It is not disputed that the minor recipients of kabalas were represented by their father natural guardian petitioner No. 1 in the applications upon which the two Miscellaneous Cases were started under section 96 of the Act. It appears that out of five plots or parts thereof making it a total area of 88 decimals covered by the kabala Exh. A executed by opposite‑party Abdul Gani Sardar two plots, namely C. S. Plots Nos. 125 and 1140 were common in the kabalas under pre‑emption which were executed by opposite‑party Abdul Gani Sardar and Muhammad Ali Munshi as stated above.

4. It also appears that the summons as issued by the Court in the respective Miscellaneous Cases was served upon petitioner No. 1 as guardian of petitioners Nos. 3 to 6 on or about 18‑10‑60. It further appears that by an order dated 10‑12‑60 the petitioner No. 1 Haji Wahab Ali Rari was added as opposite‑party No. 11 and notice of the application for pre‑emption as filed on behalf of opposite‑parties Nos. 1 and 2 Kadam Ali and Kazem Ali respectively was served on petitioner No. 1 Haji Wahab Ali Rari in his individual capacity on or about 30‑12‑60.

5. The defence inter alia was that the transaction in question as covered by kabalas dated 21‑4‑60, were benami transactions and Haji Wahab Rari being the real purchaser the application for pre‑emption could not succeed in his absence. In other words, it was contended that the vendees, though ostensible owners or mere benamdars, might be proper parties but Haji Wahab Rari, father of those vendees, being the real purchaser should have been added as a necessary party and in the absence of any proceeding started against him within the prescribed period the proceeding was liable to fail as a whole.

6. The learned Munsif was inclined to take the view that the question of benami could not be brushed aside and that the application being had for defect of parties could not succeed. The relevant cases were accordingly dismissed.

7. On an appeal preferred by the applicants for pre‑emption the learned Subordinate Judge took the view that the fact that Halt Wahab Ali Rari was a co‑sharer, tenant by virtue of his kabala Exh. A was not known to the applicants for pre‑emption and as such they were not unjustified for non‑imp leading him (petitioner‑No.1 Haji Wahab Ali Rari) at the time of the filing of the application. In that view of the matter he, allowed the appeals and ‑the prayer for pre‑emption as made y the present opposite‑parties Nos. 1 and 2.

8. The learned Counsel in support of the Rules contends before me that Haji Wahab Ali Rari being the real purchaser the application for pre‑emption could not be maintained only against the present petitioners Nos. 2 to 6 who were mere ostensible owners, rather, benamdars. He .has also contended that Haji Wahab Ali Rari having already been a co‑sharer tenant by a previous purchase as per Exh. A he was a necessary party to be impleaded on the date of application (19‑8‑60), and in his absence it would be a fatal defect of: party so far the application for pre‑emption is concerned. He has also argued that the learned Subordinate ‑Judge has failed to come to any finding as to whether by allowing an application for pre‑emption in terms of section 96 (1) of the Act there would be any contravention of the requirements of section ‑90 of the Act. by which it is required to guard that no person getting the advantage of pre‑emption might have in his possession any‑land in excess of the statutory limit of one ‑hundred bighas for his family. His further contention is that the tenants holding lands contiguous to the lands transferred being not made parties the application for pre‑emption was also liable to fail.

9. Mr. Talukder appearing on behalf of the principal opposite‑parties Nos.1 and 2 has, on the other hand, contended that the contentions raised by the learned counsel for the petitioners on the score of section 90 of the Act and on the score of non‑imp leading the tenants holding contiguous land need not be given any serious consideration. It has been pointed out that at no stage of the proceeding any question was raised as to whether there would be contravention of section 90 of the Act by reason‑of the prayer for pre‑emption being allowed. The learned counsel for the petitioners has, however, referred to a decision of this Court in the case of Satya Ranjan Halder and others v: Surendra Nath Dasand ethers (P L D 1962 Dacca 554); and has argued that it is incumbent upon the Court, whether‑‑this point is raised or not to look into the question of possible contravention of section 90 of the Act in view of the proviso under ‑subsection (1) of section 96 of the Act. It, however, appears on a reference to .the reported, decision that in that case this point was definitely raised in the written objection by the purchaser concerned. In the presences however no‑such point seems to have been taken either in the written objection or at any stage before this. As this question involves consideration of facts I do not think it proper to allow this contention to be raised at this stage.

10. In regard to the question as to whether in a case like this tenants holding lands contiguous to the lands transferred as per kabalas dated 21‑4‑60, would be necessary parties, it has been very rightly pointed out by the learned Advocate Mr. Siddique while appearing with Mr. Talukder, that the present case comes under, the first part of subsection (2) of section 96 of the Act and that the present application for pre‑emption being made by one of the co‑sharer tenants no other party except other co‑sharer tenants of the holding and the transferee should be made parties. If it were an application, on behalf of a tenant holding lands contiguous to the land transferred then in that case it would be necessary to imp lead all the tenants holding lands contiguous to the land in dispute. In my view, the argument as advanced in this behalf by the learned Advocate for the opposite‑parties is quite sound. Subsection (2) of section 96 of the Act seems ‑to have two parts; the first part indicating the necessary parties to be ‑impleaded in a case started at the instance of a co‑sharer tenant. In such a proceeding the tenants holding lands con tiguous to the land transferred do not appear to be necessary parties. The second part seems to lay down that in a case or proceeding‑started at the instance of a tenant holding land con tiguous to the land transferred not only the co‑sharer tenants of the holding should be joined as necessary parties but also A all the tenants holding lands contiguous to the lands transferred and the transferee should be made parties. In my view, the present case having been started at the instance of an admitted co‑sharer tenant the second part of subsection (2) of section 96 of the Act is not attracted and as such it can not be defeated merely because the tenants holding lands contiguous to the lands transferred have not been made parties. The contention as raised in this behalf by the learned counsel for the petitioners must, therefore, fail.

11. The next question that calls for consideration is as to whether by reason of the fact that Haji Wahab Ali Rari who is said to be the real purchaser has not been made a party the application for pre‑emption should fail. It is not disputed that there is no clear and express finding of the Court of appeal below that Haji Wahab Ali Rari‑ is actually the real purchaser and that the present petitioners Nos. 2 to 6 are mere benamdars. The learned Munsiff seems to have been inclined to take the view that it was Haji Wahab Ali Rari who advanced the consideration money and, as such he was a necessary party. But the Court of appeal below has not come to any clear finding on this point though it has been pointed out by reference to the evidence on record as given on the side of the applicants for pre‑emption that it was not known that Haji Wahab Ali Rari had already become a co‑sharer tenant. Whatever might be the interest of Haji Wahab. Ali Rari in the land conveyed or purchased by the kabalas Exhs, 1 and 1 (a) dated 21‑4‑60, it is difficult to agree that the present petitioners Nos. 2 to 6 who were surely the recipients of the documents and apparently holders of the kabalas and vendees of the transaction, even though as benamdars, could not be used. It is well settled that a benamdar can sue and be sued and there is no reason to suppose that a benamdar cannot be deemed to represent the real owner while the litigation is wit 'h a third party. This contention of the learned counsel must, therefore, also fail.

12. The only other contention that requires to be considered in this case is as to whether the non‑imp leading of Haji Wahab Ali Rari who had purchased the interest in some lands appertain ing to the same holding by the kabalas Exh. A the application for pre‑emption could fail on the ground of defect of parties. As already stated Haji Wahab Ali Rari was not made a party on or about 19‑8‑60, when the application for pre‑emption was filed. It has throughout been the case of this Haji Wahab Ali Rari that he was the real purchaser and the learned counsel has placed the evidence suggesting that consideration was actually paid by this man for the transaction covered by the kabalas Exhs. I and 1 (a). It is true that the learned Subordinate Judge has found that it was not known to the applicants for pre‑emption that this man Haji Wahab Ali Rari already become a co‑sharer tenant. There is no finding, however, that he was not at all a co‑sharer tenant or that the kabala Exh. A was nothing but a sham transaction. In this state of things it must be accepted that a Haji Wahab Ali Rari actually became a co‑sharer tenant as early as 14‑2‑59, when he purchased some other lands apper taining to the same khatian by a kabala Exh. A. There is no dispute as to the consideration paid by him on account of this transaction as per kabala Exh. A. It is therefore, reasonable to examine the argument of the learned Subordinate Judge as to whether in the face of the fact that Haji Wahab Ali Rari was a co‑sharer tenant he ought to have been made a party or about 19‑8‑60, when the application for pre‑emption was filed. The admitted position is that by an order dated 10‑12‑60, he was added as a party and the notice in pursuance of such order seems to have been served sometime between 10‑12‑60 and 30‑12‑60.

13. It was contended on behalf of the contesting opposite parties that as soon as an order of addition of parties was made that order would take effect from the date of the application dated 19‑8‑60. It may be noted in this connection that there is no independent procedure laid down in section 96 of the Act for addition of parties. We have, therefore, to follow the procedure laid down in the Code of Civil Procedure. It is under the provision of Order. I, rule 10 of the Code of Civil Procedure that such an application for addition of parties can be considered and in my view the order dated 10‑12‑60, by which Haji Wahab Ali Rari was directed to be added as opposite‑party No. 11 was an order within the meaning of Order I, of rule 10 of the Code of Civil Procedure. According to sub‑rule (5) of rule 10 of Order I of the Code of Civil Procedure the proceeding in question against this man since he was added as opposite‑party No. 11 should be deemed to have begun only on the service of summons subject to the provision of section 22 of the Limitation Act. According to section 22 (1) of the Limitation Act where a new party is added the suit should be deemed to have been instituted when he is so made a party. If the provision of section 22 of the Limitation Act applies then opposite‑party No. 11 namely Haji Wahab Ali Rari should be deemed to have been made a party on 10‑12‑60. At one stage of the hearing Mr. Talukdar argued that the provision, of section 22 of the Limitation Act would not apply in this particular case as it originated in a proceeding based on an appli cation and not on the basis of a suit. Whatever might be the nature of the proceeding in question it is quite clear that if the provisions of the Limitation Act do not apply then opposite party No. 11 should be deemed to have been made a party on a date between 10‑12‑60 and 30‑12‑60. According to section 141 of the Code of Civil Procedure there is no reason as to why a proceeding on the footing of an application under section 96 of the Act could not be governed for the purpose of procedure by the provision of the Code of Civil Procedure. In my view, therefore, this proceeding is governed by the provisions of the Code of Civil Procedure for procedural purposes and whether section 22 of the Limitation Act applies or not Haji Wahab Ali Rari could not be deemed to have been made a party by virtue of the order dated 10‑12‑60, at any time before that order.

14. It has next been contended by the learned Advocate for the opposite‑parties that subsection (2) of section 96 of the Act merely provides that such a co‑sharer tenant should be made a party and the requirements of this subsection should be regarded as having been fully complied with as soon as he has been made a party. In my view, this argument has no substance. If it is conceded as it has been, in view of the provision of subsection (2) of section 96 of the Act that Haji Wahab Ali Rari as a co‑sharer tenant by virtue of his earlier purchase as per kabala Exh. A was a necessary party, then it must also be examined as to whether as a necessary party he has been deprived of any right conferred upon him by the relevant provision of section 96 of the Act It is needless to point out that unless the legal right of a particular party is sought to be affected he need not be considered ordinarily as a necessary party. From the scheme of section 96 of the Act it is patently clear that the intention of the legislature was that pre‑emption should be available to the entire body of the co -sharer tenants and in certain cases also to the tenants holding lands contiguous to the lands transferred. It is true that when all the co‑sharer tenants have to participate in the pre‑emption no one co‑sharer tenant can get the whole of the property by such pre‑emption but rate-able pre‑emption has to be affected as laid down in that section. Under subsection (4) of section 96 of the Act any of the remaining co‑sharer tenants can join in the application for pre‑emption within a prescribed time. The period f as indicated therein is the period referred to in subsection (1) of section 96 of the Act or within two months from the date of the service of notice of the application under clause (b) subsection (3) whichever be earlier.

15. It has already been indicated that the date of the service of the notice of the application under clause (b) of subsection (3) can be said to be a date be been 10‑10‑60 and 30‑12‑60. It may be contended that as the natural guardian of the minor vendees Haji Wahab Ali Rari got notice of the original application in this capacity as such guardian on 18‑10‑60. Even then ‑that kind of service cannot entitle the applicants for pre‑emption to treat Haji Wahab Ali Rari as a co‑sharer tenant opposite‑party with effect from the date of the application (19‑8‑60). Apart from that unlike subsection (4) of section 26 of the Bengal Tenancy Act the language of subsection (4) of section 96 of the Act indicates that of the two periods of time it is the earlier limit which has to be kept in view, that is to say, period referred to in subsection (1) of section 96 of the Act seems to be the most material period in the present case. In subsection (1) of section 96 of the Act it is provided that one or more co‑sharer tenants of the holding may within four months of the service of notice given under section 89 of the Act or if no notice has been served under section 89 of the Act within four months of the date of the knowledge of the transfer may apply to the Court for the said portion or share to be transferred to himself or themselves. It is not disputed that no notice under section 89 of the Act was served in the present case. Therefore, the time referred to in subsection (1) of section 96 of the Act must be four months from the date of knowledge of the transfer. A question here was pertinently raised as to whether it should be a date of knowledge of the application under subsection (1) of section 96 of the Act or it should be a date of knowledge of the co‑sharer tenants who wants to join as a co‑applicant for the purpose of rate-able pre emption under subsection (4) of section 96 of the Act. Although the language as employed in subsection (4) of section 96 of the Act does not make it very clear yet, in my view, upon a reason able construction of the language employed therein the relevant knowledge must be of the party who wants to join as a co -applicant for rate-able pre‑emption by virtue of subsection (4) of the said Act and not the knowledge of the original applicant who comes under subsection (1) of section 96 of the Act. Otherwise it would have to be assumed that the knowledge of the original appli cant under subsection (1) should be deemed to be the knowledge of a subsequent applicant. Such as hypothesis may not be very consistent and as such cannot be approved. In this view of the matter it has to be seen of the two periods whether the date of the knowledge of a possible co‑sharer tenant who might intend to apply under subsection (4) of the said Act would be earlier or later than the date of service of summons or of notice of the application since it was filed. As to the date of knowledge of Haji Wahab Ali Rari for the purpose of subsection (4) of the said Act it cannot be disputed that he had knowledge of the kabala under pre‑emption from the very date of their execution. It has throughout been his case that he advanced the considera tion money and he was the real purchaser. As such he must have known about these kabalas dated 21‑4‑60. The learned counsel for the petitioners also concedes that the date of knowledge of Haji Wahab Ali Rari cannot be any date other than 21‑4‑60. In that view of the position four months from that date would take us to 21‑8‑60, and according to subsection (4) of section 96 of the Act it was this date within which he was required to put in an application for rate-able pre‑emption if he so liked. The scheme of section 96 of the Act, however, seems to indicate that an application for rate-able pre‑emption under subsection (4) of the said Act is note possible unless an application is originally made under sub section (1) of the said Act. More or less the applicant who wants to join in the prayer for pre‑emption by virtue of subsection (4) of the said Act cannot come into the picture unless there is already an application under subsection (1) of section 96 of the Act. It is true that he could make an independent application within four months from the date of knowledge but the Legislature has given him an alternative right of asking for a rate-able pre‑emption which cannot be claimed in the absence of a pre‑existing application under subsection (1). In this particular case the original application purported to be under subsection (1) of section 96 of the Act seems to have been filed on 19‑8‑60. The condition for making a prayer for rate-able pre‑emption under subsection (4) can thus be said to have been satisfied. But this Haji Wahab Ali Rari in his capacity as a co‑sharer tenant was not made a party on 19‑8‑60. As already observed he was brought on record in that capacity by an order dated 10‑12‑60 and his addition as such co‑sharer tenant could not have any effect from 19‑8‑60. But in view of the special period of limitation provided for a purpose like this as indicated in subsection (4) of section 96 of the Act, his right to join in an application for pre‑emption made initially under subsection (1) of section 96 of the Act could not subsist beyond 21‑8‑60, the last date of four months from the date of his knowledge i.e., 21‑4‑60, considering all these aspects of the question, I am inclined to think that although as a co‑sharer tenant he had a right to make an application under subsection (1) of section 96 of the Act and he did not avail of the same yet his alternative right of claiming rate-able pre‑emption under sub section (1) of section 96 of the Act was lost by lapse of time as he was not made a party in that capacity, that is to say, though a necessary party in an application under subsection (1) of section 96 of the Act yet he was not impleaded within the prescribed period. This application as made under subsection (1) of the said Act therefore was not effective against him and it must be held that on 19‑8‑60, the application was bad for a fatal defect of party. The question as to whether the fact of a particular party being a co‑sharer tenant is known to the applicant under subsection (1) of the said Act or not seems to be wholly immaterial according to the scheme of section 96‑of the Act. In my opinion, therefore, the learned Subordinate Judge acted with material irregularity in the exercise of his jurisdiction in holding that the original petitioners, namely, opposite‑parties Nos. 1 and 2 Kadam Ali and Kazem Ali respectively were not unjustified in non- imp leading opposite‑party No. 11 (Haji Wahab Ali Rari) at the time of the filing of the application as they were not aware that he was not a co‑sharer of the disputed korsha.

16. The result, therefore, is that these Rules are made absolute, the judgment and order of the learned Subordinate Judge in Miscellaneous Appeals Nos. 63 and 64 of 1961, are set aside and those of the learned Munsiff in Miscellaneous Cases Nos. 165 and 167 of 1960, are restored. In the circumstances of the case there will, however, be no order as to costs of these Rules which will be governed by the same judgment.

K. B. A.

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