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Issues Involved:
1. Legal right of a co-sharer tenant to pre-empt under Section 26(f)(1) of the Bengal Tenancy Act without notice of transfer. 2. Exclusivity of remedy by application under Section 26(f) for co-sharer tenants. 3. Period of limitation for filing an application by a co-sharer tenant not served with a notice of transfer. Detailed Analysis: 1. Legal Right of a Co-sharer Tenant to Pre-empt under Section 26(f)(1) of the Bengal Tenancy Act without Notice of Transfer: The court examined whether a co-sharer tenant has a legal right to pre-empt under Section 26(f)(1) without being served a notice of transfer under Section 26(c). It was noted that the intention of Section 26(f) is to prevent strangers from entering the family group of tenants. The court stated, "If the right to apply for pre-emption arises only when a co-sharer is served with notice Under Section 26(c), Bengal Tenancy Act, nothing would be easier for the purchaser than to withhold such notice and render the operation of the Section altogether nugatory." The court concluded that the right of pre-emption is not dependent on the service of notice, and the right accrues as soon as the transfer is made. Thus, the right to apply for pre-emption is given to all co-sharer tenants irrespective of whether the notice under Section 26(c) is served or not. 2. Exclusivity of Remedy by Application under Section 26(f) for Co-sharer Tenants: The court addressed whether the remedy provided by Section 26(f) is exclusive. It was held that "the remedy by way of application as provided for by the Section should be deemed to be exclusive, and the ordinary right of suit must be held to be barred." The court cited the principle that when an act creates an obligation and enforces performance in a specified manner, performance cannot be enforced in any other manner. Therefore, the remedy by way of application under Section 26(f) is exclusive for co-sharer tenants. 3. Period of Limitation for Filing an Application by a Co-sharer Tenant Not Served with a Notice of Transfer: The court considered the period of limitation for applications by co-sharer tenants who have not been served with a notice of transfer. Section 26(f)(i) imposes a four-month limit for co-sharers served with notice but is silent on those not served. The court reviewed previous decisions and noted that some courts had applied a "reasonable time" standard, often interpreted as four months from the date of knowledge of the transfer. However, the court rejected this approach, stating, "It is against sound canons of construction to enlarge the scope of a statute of limitation by importing into it words which are not found there." The court held that in the absence of a specific provision, Article 181 of the Limitation Act, which provides a three-year period for applications where no other period is specified, applies. Thus, the applicant has three years from the date of transfer to file the application. Conclusion: The court concluded that the petitioner, who had not been served with a notice of transfer and filed the application within three years from the date of sale, was within the time limit. The judgments of the lower courts were set aside, and the case was remanded to the trial court for an order of pre-emption in favor of the petitioner. The petitioner was entitled to costs of the trial court, with each party bearing their own costs in the High Court and lower appellate court. Separate Judgments: Ormond, J. and G.N. Das, J. concurred with the judgment delivered by B.K. Mukherjea, J., with Ormond, J. stating, "I entirely agree," and G.N. Das, J. stating, "I agree."
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