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TMI Blog1940 (5) TMI 27X X X X Extracts X X X X X X X X Extracts X X X X ..... hich is C. S. plot No. 1050 was sold by these tenants to two persons, namely Gobordhan Bar, the petitioner, and Nakul Bar his brother. On 9th August 1938, a kobala was executed by Nakul Bar in respect of his half share of plot No. 1050 in favour of the opposite party and the document was registered on 24th August following. On 18th August 1938, the Bengal Tenancy Amendment Act of 1938 came into force and the petitioner who was a cosharer of the vendor presented an application within four months from the date of the sale claiming to exercise his rights of purchase under Section 26P of the new Act. The application was resisted by the opposite party purchaser on two grounds. It was contended in the first place that the kobala being executed be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ested right that accrued under the old section and the rights which it creates could arise only in respect of transfers taking place after it came into force. The question however for our consideration is whether the rights of pre-emption would accrue in favour of the immediate landlord under the old section or in favour of the cosharer tenants under the new, as soon as the conveyance is executed or would they come into existence only when the document is registered. If the date of execution is the material date, the decision of the subordinate Judge is right and neither the landlord would lose any right which he acquired on the date of the execution of the deed nor would the cosharer tenants gain any advantage which was created by a statut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... document is registered after the new Act came into force, the provision of the new Section 26C would certainly be attracted to it. The purchaser would not have to pay landlord's fees even though the kobala was executed when the old Act was still in force, and notice would have to be served upon the cosharer tenants, within four months from the date of service of which they would have the right to come up and apply for repurchase of the share. It is fairly clear from these sections that the intention of the Legislature was that the provisions of the new Act would be applicable in respect of transfers which were registered after the new Act came into force, whereas the old Act would apply to the cases where the document of transfer was re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f purchase that is created by Section 26F, Bengal Tenancy Act, like the right of pre-emption under the Mahomedan law, attaches an obligation to a particular status which binds the purchaser from the person obliged to hand over the property purchased to the obligee on receiving the price paid by him for it with or without additional compensation: vide Budhai Sirdar v. Sonaulla Mridha ('14) 1 AIR 1914 Cal 234. The obligation can only arise when the property passes from the original owner to the purchaser. There is undoubtedly some conflict of judicial opinion as to when a sale under Mahomedan law becomes complete, and it has been held by some authorities that for purposes of giving effect to the right of pre-emption a sale would be deemed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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