section 24 of the non-agricultural tenancy act, 1949 provides- · an assignment on “preemption...

An assignment on “preemption under section 24 of the Non-agricultural Tenancy Act,1949”

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Section 24 of the Non-Agricultural Tenancy Act, 1949 Provides-

“ (1) If a portion or share of the non-agricultural land held by a non-

agricultural tenant is transferred, one or more co-sharer tenants of such

land may, within four months of the service of notice issued under section

23 and, in case no notice had been issued or served, then within four

months from the date of knowledge of such transfer, apply to the court

for such portion or share to be transferred to himself or to themselves, as

the case may be.

(2) The application under sub-section (1) shall be dismissed unless the

applicant at the time of making it deposits in Court the amount of the

consideration money or the value of the portion or share of the property

transferred as stated in the notice served on the applicant under section 23

together with compensation at the rate of five per centum of such amount.

(3) If such deposit is made, the Court shall give notice to the transferee to

appear within such period as it may fix and to state what other sums he

has paid in respect of rent for the period after the date of transfer or in

annulling encumbrances on the property and also what other amounts, if

any, have been spent by him, between the date of the transfer and the date

of service of the notice of the application, in erecting any building or

structure or in making any other improvement in the portion or share of

the property transferred. The Court shall then direct the applicant,

including any person whose application under sub-section (4) is granted,

to deposit within such period as the Court thinks reasonable

such amount as the transferee has paid or spent on these accounts

together with interest at the rate of six and a quarter per centum per

annum with effect from the date on which the transferee made such

payments or spent such amounts:


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Provided that if the correctness of any amount claimed to have been paid

or spent by the transferee on any such account is disputed by any

applicant the Court shall enquire into such dispute and, after giving the

transferee an opportunity of being heard, determine the amount actually

paid or spent by the transferee on any such account and shall then direct

the applicant to deposit the amount so determined with interest at the rate

of six and quarter per centum per annum as aforesaid within such period

as the Court thinks reasonable.

(4) (a) When an application has been made by one or more co-sharer

tenants under sub-section (1) any of the remaining co-sharer tenants

including the transferee, if one of them, may within the period of four

months referred to in the said sub-section or within one month of the

service of notice of the application, whichever is later, apply to join in the

said application, and any co-sharer tenant who has not applied under sub-

section (1) or has not applied to join under this sub-section, shall not have

any further right to purchase under this section.

(b) Such application to join as a co-applicant shall be dismissed unless

within such period as the Court may fix, the applicant deposits in Court

for payment to the applicant under sub-section (1), such sum, as the

Court shall determine as the share to be paid by him for the purposes of

sub-section (2).

(c) If such deposit is made, the Court shall grant the application to

join and thereafter such applicant shall be deemed to be an applicant

under sub-section (1).

(5) If the deposits required under sub-section (2) or clause (b) of sub-

section (4), as the case may be, and under sub-section (3) are made, the


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Court shall make an order allowing the application and directing that the

deposits made under sub-sections (2) and (3) shall be paid to the

transferee or to such persons as the Court thinks fit.

(6) Notwithstanding anything contained in any other law for the time

being in force the Court shall, if the applicant under sub-section (1) or

any person whose application under sub-section (4) is granted disputes the

correctness of the amount of the consideration money as stated in the

notice issued under section 23, inquire into such dispute before making an

order under sub-section (5) and after giving the transferee an opportunity

of being heard determine for the purposes of this section the amount of

the consideration money which the transferee has actually paid for the

transfer of the portion or share of the property and the amount so

determined shall be deemed to be the consideration money referred to in

sub-section (2) and where the amount of the consideration money has

been so determined the deposit made under that sub-section shall for the

purposes of sub-section (5) be the amount so determined together with

the compensation at the rate of five per centum of such amount.

(7) In making an order under sub-section (5) in favour of more than one

co-sharer tenant, the Court may apportion the property comprised in the

portion or share transferred among the applicants in such manner as it

deems equitable after taking existing possession into consideration; the

Court shall so apportion the said property or portion thereof on the

request of any applicant and, in this case, may require the applicant who

makes such request to deposit, within such period as the Court may fix,

such further sums as the Court considers necessary for equitable

distribution among the remaining applicants:


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Provided that no apportionment order under this sub-section shall operate

as a division of the tenancy.

(8) From the date of making of the order under sub-section (5)-

(i) the right, title and interest in the share or portion of the non-

agricultural land accruing to the transferee from the transfer shall, subject

to any order passed under sub-section (7), vest free from all

encumbrances, which have been created after the date of transfer, in the

co-sharer tenant whose application to purchase has been allowed under

sub-section (5),

(ii) the liability of the transferee for the rent due from him on account of

the transfer shall cease, and

(iii) the Court, on further application of such applicant, may place him in

possession of the property vested in him.

(9) An appeal from any order of a Court under this section shall lie to the

Civil Appellate Court having jurisdiction to entertain such appeals. (10)

Nothing in this section shall take away the right of pre-emption conferred

on any person by Muhammadan Law.

(11) Nothing in this section shall apply to-

(a) a transfer to a co-sharer in the tenancy whose existing interest has

accrued otherwise than by purchase, or


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(b) a transfer by exchange, or partition, or

(c) a transfer by bequest or gift (including heba but excluding heba-bil-

ewaz for any pecuniary consideration) in favour of the husband or wife of

the testator or the donor or of any relation by consanguinity within three

degrees of the testator or donor, or

(d) a wakf in accordance with the provisions of the Muhammadan Law, or

(e) a debottor or any other dedication for religious or charitable purposes

without any reservation of pecuniary benefit for any individual.

Explanation.- A relation by consanguinity shall for the purposes of this

sub-section, include a son adopted under the Hindu Law.”

INTRODUCTORY EVOLUTION OF PREEMPTORY

RIGHTS

Evolution of preemptory rights; Historical Development of Law of Pre-

emption from ancient time to date:

History of Origin: The law of preemption has a long historical

background behind it, which was traced from Roman law, as the right of

preemption was exercised in a contract of sale.1

Judicial opinions on the point whether preemption had been prevalent

in British India from before the advent of Muslims are not uniform. It was

observed by their Lordships of Allahabad High Court that the right of 1 6 Mad. 26


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preemption as prevalent in British India was borrowed from Mohammedan

Law. 2

There is no indication of any such conception in the Hindu law and the

subject was not noticed or discussed either in the writings of Smite writers or

in those of later commentaries. Sir William Macknaghton in his Principles and

Precedents of Mohammedan law referred to a passage in the “Mahanirvana

Tantra” which, according to the learned author implies that rights of

Preemption was recognized as a legal provision according to the notions of

Hindus.

But in case law reported, his Lordship B. K. Mukherjee J. criticized the view

expressed by Sir William Macknaghton as incorrect on the ground that the

treatise of Mahanirvana Tantra is one on mythology, not on law and

admittedly a recent publication3. So relying on two Privy Council decisions

reported4 his Lordship Mukharjee observed that the law of Preemption was

introduced in this country by the Mohammedans. There was no Foundation for

Preemption in Hindu law.5

During the period of Muslim rulers the law of Preemption was administered as

a rule of common law of land in those parts of the Indian Sub-continent which

came under the domination of the Mohammedan rulers and it was applied

alike to Mohammedans and Zimmees (which included Hindus and Christians).

2 Govinda Dayal Vs. Inanayetullah; 37 Al 129 3 A. I. R. 1954 S. C. 41 4 L. R. 39 I. A. 101 & L. R. 42. I-A10 5 (39.1.A101; 35 Cal 915); 80; 44. 1.A 44 Cal 675


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In course of time the Hindus came to adapt preemption as a customs for reasons of convenience.6

It is to be observed that the right of preemption was absolutely unknown in Bengal school of Hindi law and it has been said that there has been an influence of Islamic law in Bengal School of Hindu Law.7

From the history of the law of preemption, it appears that the preemption in village community has its origin in the Mohammedan law. It was unknown in Indian sub-continent before the Muslim Rule.8 So it will not be out of place to point out that since the days of Muslim rulers, the law of preemption was being administered by British India as a part of Mohammedan law and it in 1928 that it was first introduced in Bengal as part of general law relating to agricultural tenancy.9 So the history of law of preemption in Indian sub-continent was traced by John Edgeir.

During Muslim rules it was administered as a rule of general law of the land both for the Muslims and non-muslims and with the advent British in India, it was administered even to Muslims only on the ground of equity justice and good conscience. In the course of times customs of preemption grew up and were adopted among the village communities. In some cases the sharers in the village adopted or followed the rules of Muslim law of Preemption and in some cases the customs of village follows the rules of Mohammedan law of preemption. So the conception of preemption was unknown to Hindu law. In course of time Hindus in certain areas of Indian sub-continent adopter the law of preemption by custom. But the customary law was not universally applicable to all Hindus throughout Indian Peninsula.10

6 A. I. R. 1952 S. C. 1476 7 Dr. B. N. Datta’s Hindu Law of Inheritance, Page 137 8 39. 1. A 101; 1954 S. C. 417 9 In Bengal Tenancy Act, 1885, the provision regarding preemption was first introduced. 10 1954 S. C. 417


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Growth of the law of preemption by Custom amongst the non-muslims: From

the above we know that the law of preemption is essentially a part of

Mohammedan jurisprudence. It was introduced in Indian sub-continent by

Mohammedan judges who administered Mohammedan law. Under their

administration the Mohammedan law of the country was applied universally to

Mohammedans and non-muslims. In course of time preemption became

adopted by the Hindus as a custom.11 So the law of preemption as applies to

Hindus in those parts of Indian sub-continent where it was adapted as

accustom, was the Hanafi law, because Mohammedan sovereigns of India

were Sunnis of the Hanafi sects.12

The right of preemption was setup by the non-muslims on the basis of

custom. When a Hindu set up the rights of preemption on the basis custom, he

usually claims to have the same right of preemption as Mohammedan. It is to

be pointed out that there is a custom of preemption among the non-muslims

in the city of Benares of U. P, in Behar, certain part of Gujrat and districts of

Sylhet and it is governed by the rules of Muslim law of preemption except in so

far as such rules are modified by such customs.13 So where a custom of

preemption is found to prevail amongst the non-muslims in any particular

locality, it is presumably founded on a co-extensive with the Mohammedan

law. But there may be instances where the custom of preemption is prevailing

among the Hindus does not go the whole length of the Mohammedan law of

preemption. The court may in such cases administer a modified form of law as

11 I. L. R. 7 All 775 at 790 12 Mulla’s Mohammedan law, 15th edition, at page 204 13 60 Calcutta 694; 45 All 50


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between Hindus. But the assertion of right by it must always be proceeded by

an observance of the preliminary formalities prescribes in Mohammedan law.14

When a right of preemption rests upon customs, it becomes the Lex Loci or the

law of the place and affects all lands situated in that place irrespective of the

religion, nationality or domicile of the owners of the lands except where such

incidents are proved to be a part of the customs itself.

It will not be out of place to point that customs mf preemption grew up

or were adopted among the village communities. In some cases the shares in

village adopted or followed the rules of Mohammedan law of preemption.

In other cases, where a custom of preemption exists, each village

community has a custom of its own which varies from the Mohammedan law

of preemption and is peculiar to the village in its provisions and incidents. A

custom of preemption was doubtless in all cases the result of agreement

amongst the share-holders of the particular village. Right of preemption has

also been created by contracts between the shares in a village.15

It is to be observed that the law of preemption is a personal law, it is not

territorial law, and it is not merely personal right but an incident annexed to

the land.16

Codification: It’s worthy to mention that the law of preemption in

some provinces of erstwhile British India, were embodied in statutes. Among

those statutes may be mentioned—

The Oudh Law Act (Act 18 of 1876)

The Punjab Laws Act (Act IV of 1872)

The Punjab Preemption Act ( Act II of 1905)

The Preemption Act (Act I of 1913)

14 1954, S. C. 417 15 Fyzee on Mohammedan law 3rd Edition, Page 330 16 1954 S. C. 417


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The Agra Preemption Act (Act XI of 1922)

So in other parts of India, other than Oudh, Punjab and Agra, the operation of

law of preemption depended upon the customs. When the law is customary

the right is enforceable irrespective of the religious persuasion of the parties

concerned. When there is neither territorial nor customary, it is applicable only

between Mohammedans as part of their personal law unless the judiciary of

the place considers such law to be opposed to the principles of justice equity

and good conscience.

Latest Development of the Law of Preemption:

During the British rule the courts in British India took the view that a

stranger purchaser other than a member of joint family should not be entitled

to be placed in physical possession in any part of the family dwelling house

purchased by him. Some judges opined that it was inequitable with reference

to hindu customs and prejudices to permit a stranger to intrude himself upon

the privacy to a joint Hindu family residence, more practically, as happens in

many cases, a stranger is actuated by motives of enmity.

In case law reported I.L.R 5 Bom 499his Lordship Westropp C.J of

Bombay High court observed as follows:

“We also deem it a far safer practice, and less likely to lead to

serious breaches of the peace, to leave a purchaser to a suit for

partition, than to place him by force in joint possession with

members of a joint family which may not only be of different cast

but also of different race or religion.”

The second paragraph of 44 of T.P. Act takes away the right of stranger

purchaser of share of an undivided family dwelling house to ask for joint

possession thereof or to obtain such possession through court. It also gives


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right to other co-shares of the family to prevent the stranger purchaser by

injunction from forcing an entry into the family residence, exercising any act of

joint possession along with them. But the said provision creates no positive

right so that if the stranger purchaser has somehow obtained possession, he

cannot be evicted, nor will a suit for perpetual injunction lie. In any case, the

stranger purchaser has the remedy of a partition suit open to him having

recourse to which he can get possession of the share purchased by him.

To meet the situation, “the partition Act(Act IV 1893) was enacted,

section 4 whereof confers on the co-sharer members of the undivided family a

right of preemption of the share transferred to a stranger- a right to buy the

same and prevent a partition of the family dwelling house with the stranger

purchaser. So, section 4 of the Partition Act, 1893is a logical sequel to section

44 of the Transfer of Property Act, 1882 and it is also a corollary of section 4 &

carries forward the law from which the latter provisions leaves it. Furthermore,

the partition Act is a Central Act and applies to all citizens of British India

irrespective of cast, religion and creed. So the section 44 of T.P. Act provides

no relief to the members of undivided family in such contingency but section 4

of the Partition Act comes to the rescue of the members of the undivided

family and gives them the right to purchase the share obtained by stranger.17

And there by to prevent the transferee, from a member of a joint family who is

an outsider from forcing his way in to a dwelling house in which the other

members of transferor’s family have the right to live. In other words a

member of a family is entitled to claim that the transferee of a share, who is a

stranger, shall accept the money valuation of his share and not the share. So

where a cash-rarer owner of the house under takes to purchase the share of

17 49 C.L.J 136; 1929 CAL 269.


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the transferor, the court shall make valuation of such share and direct the sale

of the share to such member.

In the early twenties, the Royal commission on Agriculture appointed by

the British government reports its view that subdivision and fragmentation of

agricultural holdings, were among the causes of the agricultural backwardness

of the then India. As a measure of checking fragmentation of agricultural

holdings, right of preemption was introduced in Bengal tenancy Act, 1885 by

the amendment Act IV of 1928. So section 26F of the amendment Act of 1928

conferred right of a holding if a holding or a share or portion thereof was

transferred by the tenant to person who is not a co-sharer tenant.

It is to be noted that the landlords right of preemption was abolished by

Bengal Tenancy Amendment Act VI of 1938 and the amended section 26F

conferred right of preemption on the co-sharer tenant instead.

Then came the East Bengal State Acquisition and Tenancy Act, 1950 (Act

XXVIII of 1951) the object of which is the abolition of zamindaries i.e. rent

receiving interests. So, in the context of new setup, the Bengal Tenancy Act

1885 with a gradation of tenants and complicated system of tenancy laws

became unnecessary and was replaced by the provisions of part V of The State

Acquisition and Tenancy Act, 1950. So the part V of the SAT Act has provided

for the right of preemption which contains in section 96 of SAT Act and the

said section confers the right of preemption on a co-sharer riyats as well as

contagious raiyats and applies to all agricultural holdings. So right of

preemption under section 96 of SAT Act is confined to agricultural land only.18

18 20 D. L. R. 1197; 21 D. L. R. 633


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Meaning of Preemption :

The word “preemption” literally means right of purchasing in

preference to others.19 Preemption equates – “pre” means “before” and

“emption” means “purchase”, both being derived from the Latin “prae” and

“emption respectively.20

So legally it means – before purchase, and this is the legal right of buying

a thing before all others. This is a right which the adjacent owner of an

immovable property possesses to acquire by purchase another immovable

property sold to another person.21

It is to be mentioned that legally the preemption means before

purchase but statutorily or according to legislature it becomes after purchaser.

Anyhow, in the field of law, the word “preemption” means a valuable right. It is

really a right of post preemption rather than preemption.

So in case law reported in 32 DLR 54 AD, their lordships of the Appellate

Division of the Supreme court have rightly observed- ‘A citizen’s right to deal

with his property freely, in view of the special statutory provision, bears a clog

i.e. subject to the right of preemption, The statutory provision providing such a

right curtailing owner’s right to deal with his property must be construed very

strictly. The right is allowed to claim in consideration of his necessity and not

as a matter of luxury. This principle always be kept in view while determining

the claim of preemption.’

As to the origin of the right of preemption their lordships of Privy Council

in case jaw reported in 42 I.A. observes “Preemption in village communities in

British India had its origin in the Mohammedan law as to preemption and was

19 Chamber’s Twenteenth Century Dictionary. AIYAR’S Judicial Dictionary. 20 The Oxford Dictionary 21 A.I.R 1962


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apparently unknown in India before the time of Mughal Rules. In course of

time custom of preemption grow up and were adopted among the village

communities........... The object is as far as possible to prevent stranger to a

village from becoming sharers in the village.

The having had its origin in Muslim law, the system of preemption was

introduced into British India by Muslim Rulers and has subsequently taken over

in toto by their successor, the British Administrator, Since then, the law has

undergone a great changes and it is now an important branch of the land laws

which are in force in this country.

Nature of the Right of Preemption:

The right of preemption was a right of repurchase from the buyer22. In a

case law it has been observed that the right of preemption is not a right of

repurchase either from the vendor or from vendee, involving a new contract of

sale, but simply a right of substitution entitling the preemptor, by reason of a

legal incident, to which the sale was subject, to stand in the shoes of the

vendor in respect of all the right and obligation arising from the sale under

which he derived hi title. So right of preemption arises from ownership. It is a

ownership and not possession that gives rise to the right. The right cannot be

resisted on the ground that the preemptor is not in possession of his own

property. But the right of preemption is not a right of repurchase, on ht other

hand it is right of substitution in place of vendee23.

The right of preemption is an incident of property attached to the land itself.

The benefit as well as the burden of the right of preemption run with the land

can be enforced by or against the owner of the land for the time being,

22 4B.L.R 134; 188 I.C 543 23 12 D.L.R 737 Dac; 33 C, W.N 354


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although the right of the preemptor does not amount to an interest in the land

itself.24

The Calcutta High Court was of the view that it was a mere personal

right. The right of preemption is a personal right if cannot be transferred. But

the view taken by Allahabad, Patna and the Bombay High courts was that the

right of preemption is an incident of property. So before the decision of the

case law reported in 1954 S. C 417, there was divergence of judicial opinions as

to whether the right of preemption is a mere personal right or an incident of

property. So the above mentioned case law settled the controversy and

affirmed the view that the right of preemption is not a mere personal right

alone, but an incident annexed to the land. Again the Supreme Court of India in

case law reported in A.I.R 1958 S. C 838, pointed out that a right to offer at

thing about to be sold this being the primary or inherent right and that

preemptor, has a secondary right or a remedial right to follow the thing sold. It

is simply a right of substitution in place of original vendee and is not a right of

transfer. The ordinary law of preemption under which the preemptor has the

right to follow the land is the subject matter of the sale deed, becomes

expanded and the land allotted to the vendee in lieu of the land which may

have been subject to preemption, also becomes subject to preemption in the

same way as the original holding or tenancy. The right of preemption is

convented with the property and is not repurchase.25

It is to be pointed out that the right of preemption is a clog to transfer

and this is an extraordinary right. The entire land is clogged with an

encumbrance in the shape of the right of preemption. The vendor possesses

the property not absolutely but subject to the right of preemption. The vendee

24 A.I.R 1954 S. C417 25 22D.L.R 275 S.C


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purchases the property not as whole free from all liabilities but as one

unpossessed with particular quality or incident.

So preemptor steps into shoes of the preemptee transferee and the

order5 of preemption can only be exercised against such transferee or his

successor-in-interest alone and not against anybody.26

It is to be noted that after the introduction of the right of preemption in

section 26F of B.T. Act, it is called a statutory right. The right is statutory and is

to be exercised within the scope of the statute itself.27 The right of preemption

is connected within property and it is not a right of repurchase from the

vendee. The right of preemption is the essence of a right of substitution.28

Preemption implies involuntary transfer

In such a transfer, the rufe is that the transferee takes the transfer at his

own risk. There is no question of any contract and there is thus no scope for

the claim for refund of the preemption money owing to a defect in the

preemptee’s title.

Now question arises whether the right of preemption is a preventive

right or predatory or Felconic right:

In case law reported in 19 D.L.R. 136 S.C 1967 P.L.D. 153 S.C. there

lordships of the than Supreme Court of Pakistan, described the fight of

preemption as a predatory or Felonic right. But with great respect a for there

Lordships, preemption cannot be called a predatory or falconic right. There is a

gulf of deference between the preventive right and predatory right. The one is 26 28D.L.R 61 AD. 27 22 D.L.R 535 Dac. 298 Dac. 30 D.L.R 75 H; 28 22D.L.R 275 S.C; P.L.D. 1970 S.C 229


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employed to save the right and the other is employed to grab the lands of

others. The rightful owner tries to save the land by preventing the stranger

purchaser to intrude in. So he cannot be called a felcon or a bird of prey as

sweeping over the right to land of others. The co-sharer who protects the land

by preemption is not a stranger like felcon. The one co-sharer saves the land

from the hand of stranger purchase. So his action cannot be called a felconic

action. Rather the stranger purchaser has been trying to sweep over the co-

sharer; and the co-sharer derives away the stranger felcon by deposit of

consideration money. So the right of preemption is not predatory or felconic

action of the co-sharer who deposits. It is the preventive right against the

felconic action of the stranger purchaser.

So a co sharer’s right of preemption is an overriding right and once that

right is exercised, the other rights would vanish. The vendor is not deberred

from preempting a sale made by his transferee or purchaser. The vendor is

only debarred from preempting a sale made by him. The right of preemption is

a preferential right. So the law of preemption imposes a limitation or disability

upon the ownership of property to the extent that it restricts the owner’s

unfettered right to sell and compel him to sell the property to his co-sharer or

neighbor as the cases may be and the said law imposes a restriction upon the

right to acquire, hold and dispose of property. So, the right of Purchase created

by the statutory provision of preemption, attaches an obligation to a particular

status which binds the purchaser to hand over property purchase to the oblige

on receiving the price paid by him with compensation. The right of preemption

is not based on contract or custom. It is to be noted that a covenant of

preemption in a sale deed is purely personal contract but it does not create

any interest in immoveable property. The rule of perpetuity did not apply to


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contract for preemption. A covenant for preemption which binds the parties

and their heir is void.29

So subject of preemption must be strictly construed as it operates as

clog on a citizen’s right todeal with his property in the way he likes.30

Classification of preemptory right:

The law of preemption as is applied in this country my in the first

instance be classified into:

1. Statutory law and

2. Customary law

Customary law has govern by adoption by the people from long continued

usage and convenience; Status law either (a) codification of customary law

already in existence or(b) a creation of the legislature out of the policy of

government from time to time.

Besides above, there is a third class, namely personal law such as the

Mohammeden law of preemption, which applies mainly to Muslims as a

matter of justice ,equity and good conscience .

Basically the law of preemption is of two kinds according to the ground

on which the right is founded, namely

1. right to preemption on the ground of co-shareship and

2. Right to preemption on the ground of vicinage.

Here is also a third ground, namely participation is common easement

right or relation of dominant and servient tenants, which is peculiar only to the

Mohammedan law of preemption.

29 33 C.W.N 150 25 C.W.N 901 30 32 D.L.R 54 A.D 1945


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The right of preemption on the ground of contiguity only where

statutory or customary ;law has been assailed as unreasonable restriction on

owner ship of property.

Again from the stand point of the occasion for exercise of the right , the

law is not unified always. The right arises in most of the existing laws when a

share or a portion of the property is transfer to the stranger i.e. other than a

co-sharer. But under Mohammedam law a scale to a co-sharer even is subject

to the right of preemption of other co-sharers in the property.

There may be another classification of the law from the point of view of

class of property affected, namely,

1. dwelling house belonging to an undivided family,

2. agricultural holding,

3. Non-agricultural tenancies and so the preemption can be claimed.

4. under section 4 of the partition Act, 1893(Act 2 of 1893)with respect

to undivided joint family dwelling house.31

5. under section 24 of N.A.T 1949 {Act of 1949} with suspect to land of

non-agricultural tenancies.32

6. under section 96 of NAT 1949 in respect of agricultural holdings.33

7. under the Mohammedan law of preemption which includes the above

mentioned classes of property within its purview.

The provisions of the abovementioned three status provide that the

right of preemption shall not effect the right of preemption conferred by the

Mohammedan law. if both parties are Muslim the right of preemption under

Mohammedan law will apply.34In the subsequent Chapters of the book, the

statutory provisions of the right of preemption will be dealt with each in

seriatim. 31 12 DLR 71,46 CWN 853.20 DLR 489,1969 DLC 285 D.L.C. 32 33 DLR 359 ALE ,62 H,198 DLR 156H,31 DLR 249 H. 33 AIR 1966 SC1977. 34 60 CWN 57,AIR 1957 Cal 449


20

Condition of the right of preemption :

The preemptor must have a right of preemption at the date of sale , at

the date of suit and finally at date of decree.35 All persons claiming to be

entitled to preempt would have to be co-sharer on the day the transfer

thought to be preempted took effect. A person claiming to preempt on he

basis a of being a co-shara by purchase can do so only if it is own deed of

purchase was roistered earlier than the transfer to be preempted.36 So the

preemption is the right which must exist not only when the application is made

but also when the case is finally disposed of.37 It is to be noted that right of

preemption arises immediately upon transfer of a holding.38 The right accrues

as soon as the transfer is made. Further it is to be noted the where

simultaneously with the sale of agreement for repurchase is made , the

existence of a contemporaneous agreement for resale of repurchase on the

same share of the property does not effect the right of preemption. Such an

agreement for reconveyance does not precludethe other co-sharer from

enforcing their right of preemption that as arisen immediately upon the sale.

Even a reconveyance if actually effected in pursuance of such agreement

would not bar the preemption proceeding. But if reconveyance taken place

before the proceeding of the preemption petitions the preemption right is to

be ceased to exist. The obligation under simultaneously with the transfer

under the original sale and is enforceable against the preemptor if he had

notice of the agreement for resale when he took the property under the order

of preemption. The transfer or preempt ore or to be preempted is subject to

the obligation arising from or by reason of the agreement for resale or

35 19 DLR 36 SC, 17 DLR 327 36 50 CWN 502 37 13 DLR 286,35 DLR 225 A,12 DLR 849 LD 1989. 38 53 CWN 687 1984 BLD


21

purchased.39 Further the right of promotion given by statute is mandatory and

not merely discretionary. The court has no option but to grant preemption.

That is the colar intension underlying the enactment and the duty of the court

is to give full effect to the intention consistent with the rights of the purchaser

.the right of the purchaser is to get back the consideration money and

compensation . that is the substantial right which the course are intended to

recognize and respect. In the ceases of the co-sharer deposit of the

consideration money and compensation must be made at the time of making

the application; otherwise the statutes direct the dismissal of the application .

in case of non-notified co-sharer there is no such direction in the statue .hence

the court is not empowered to dismiss the application if the same is not

accompanied by the deposit the court must make the order for preemption ,

but not before the deposit is made of the amount of the consideration plus

compensation as provided in the statue. In the case where the amount of

compensation is disputed, the court is under an obligation in the first instance

to adjudicate on the question of consideration being the amount payable by

the preemptor after the determination the said question the course is entitled

to give reasonable time to the preemptor to deposit the amount so determine

before making a final order as to weather preemption should be granted or

not.40

Where the statues requires the court to make an independent valuation

of the share transferred , the valuation should be made on the basis on the

prevailing market price and should take note of any variation in the market

rate after the transfer to the third party . the valuation should be fair to both

39 13 DLR 207, 35 DLR 225 AD 40 59 CWN 939


22

parties, the preemptor and preemtees, and not like fixing a relative value x-

shares as in done in partition.41

In the partient to motion that the court’s judgments should record a

finding when allowing petition for preemption.42 it is to be noted that if the

transfer is colorable or same or mare paper transaction, then there would no

be transfer, preemptor’s right will prevail right.43

Scope and application of the section 24:

Prior to the East Bengal Non-agricultural tenancy Act, 1949 (Act 23 of

1949), non-agricultural tenancies in this countries were governed by the

Transfer of Property Act, 1882 which did not provide adequate provision for

the arbitrary eviction of non-agricultural tenants. Under this state of law then

in existence, the tenants in urban area enjoyed no statutory rights. Their rights

were usually of a precarious nature. In such a situation, question of right of

preemption in respect of such tenancies was inconceivable.

So to improve their condition and to make better provisions for

regulating their rights and liabilities the East Bengal Non-agricultural Tenancy

Act, 1949 was passed, as a permanent nature on 20/10/1949. It is the parallel

statue to the Bengal Tenancy act, 1850 (Act 8 of 1885) and deals with the

tenancy law in the field which was not covered by BT Act, 1885. The East

Bengal Non-agricultural Tenancy act, 1949 which aims at supplementing the

Bengal Tenancy Act 1885 in the fie3ld of non- arable lands, provided for right

of preemption i9n respect of non-agricultural tenancies.

41 50 CWN 829 42 29 DLR 153 H 43 1934 BLD 219AD ,35 DLR 225 AD


23

So the right of preemption conferred by section 24 of N.A.T Act 1949 is

not retrospective in operation and does not affect transfer s effected before

the Act 23 of 1949 came into force.44 The section 24 of N.A.T conferred a right

of preemption on immediate landlord in case the entire land of non-

agricultural tenancy was transferred and a co-sharer tenant, both in case, a

share or portion of such land was transferred. But the landlords right of

preemption has been abolished by the Amending Ordinance-namely E.P

ordinance 9 of 1967 Dt 22/12/67. Now the position of the right of preemption

under section 24 of N.A.T Act is specified after the promulgation of E.P

Ordinances 9 of 1967 & 8 of 1967 Dt 22/12/67. So at present the section 24

confers a right of preemption on a co-sharer tenant only in case, a share of or

portion of non-agricultural is transferred.45 It is to be noted that ‘lease’ of

tenancy or ‘sublease’ is excluded from purview of this section. From the

section 24 it is apparent that co-sharer by purchase is entitled to preempt a

transfer of a share or portion of a land although his own purchase is subject to

right of preemption of other co-sharer tenants. A person who claims to

preemption on the basis of himself being a co-sharer by recent purchase can

do only of his own deed of purchase was registered before the registration of

the transfer sought to be preempted. But where a co-sharer by inheritance

and co-sharer by purchase both apply for preemption, the former right would

prevail over the latter’s so long as his right of preemption in respect of the

latter’s purchase survives.46

A co-sharer seeking preemption must have a subsisting interest in the

holding at the time when he files the case.It is to be pointed out that this act

44 44, 802; 640, 18 DLR, 19 DLR 615. 45 38 DLR 93 AD. 46 37 CWN 654, 35 DLR 130 AD.


24

does not speak of anything as ‘holding’.47 It speaks of non-agricultural land;

such land is to be held by a tenant. So where the land has been let out and is

used for purposes not connected with agricultural or horticultural.48

If the non-agricultural land by itself does not constitute the subject-

matter of a separate tenancy and is a fraction of land held partly for

agricultural land partly for non-agricultural purposes, the tenant holding such

non agricultural land cannot be said to be a non-agricultural tenant within the

meaning of the section 2(4) of the N.A.T Act. It is to be noted that section 24 is

attracted to a transfer of non-agricultural land with a building thereon.49 So

preemption in respect of non-agricultural land is only possible under section 24

and now in the case of non-agricultural land only the co-sharer tenant can

claim preemption.50

The right of preemption is to be exercised within the scope of the

statute as the right of preemption under this section is a statutory right, and

the right of preemption vests in a tenant of non-agricultural land under section

24(1) of this Act.51

So the ingredient of section 24 of N.A.T Act & section 96 of S.A.T Act are

different.52 The expression ‘holding’ in section 96 which is not to ne found in

section 24 of N.A.T Act. Homestead being a part of holding of rayiat is not

excluded from the provision of section 96 of S.A.T Act. Preemption under

47 35 DLR 230 AD. 48 17 CLJ 4111, 27 CAL 205. 49 20 DLR 1197 Dac, 27 DLR 114 AD. 50 35 DLR 230 AD, 27 DLR 114 AD. 51 30 DLR 75 HC. 52 33 DLR 323 AD.


25

section 96 relates to rayiat holding only so homestead within Municipality or

non-agricultural land cannot be preempted under section 96 of S.A.T Act.53

Anyhow, the right of preemption under the section accrues on the ‘transfer of

lands’ of non-agricultural tenancy, whether entirely or portion or share of

thereof. The date of accrual of the right is not the date of execution but the

date of registration.54 It is to be noted that all transfers are not subject to

preemption under the section 24. Sub-section 11 of section 24 enumerates the

kinds of transfer which are excluded from the perview of this section. So there

will be no case for preemption if the transfer is in favour of a co-sharer in the

tenancy whose existing right was accrued otherwise than by purchase.

The expression ‘whose existing interest has accrued otherwise than

purchase’ means and implies that this section does not recognize a co-sharer

by purchase as co-sharer in the tenancy for the purpose of exemption from

preemption. So, under this section the right of preemption can be exercised

against a transferee who had acquired an existing interest in the tenancy by

virtue of a prior purchase and under this section a co-sharer tenant is entitled

to preempt any of the subsequent transfer without preempting the first or

prior transfer.55

Furthermore the subsection 11 of section 24 excludes from the

application of this section, the following kinds of transfer namely (a) exchange

(b) partition (c) bequest of gift including heba but excluding heba bil ewaz or

any pecuniary consideration in favour of the husband or wife of the testator or

the donor or any relation by consanguinity within three degree including

adopted son (d) wakf or (e) debuttar or any other dedication for religious or

53 21 DLR 633 DAC. 54 50 CWN 502. 55 79 CWN 1 BCR 53 AD.


26

charitable purpose without reservation of any pecuniary benefit of any

individual. But mortgage, whether simple, usufructuary, or by conditional sale

is not exempted, but will not deemed to be a transfer until a decree for

foreclosure is passed. But first creation of mortgage and then by purchase of

right of preemption, the right of preemption can be avoided.56 The transaction

through sale deed is an exchange and not a sale and as such exempted from

preemption.

Further, the word ‘transfer’ is not restricted to ‘voluntary transfer’ but it

is used in the ordinary and general sense and must be interpreted in the

ordinary meaning to include transfer by operation of law, as also ‘involuntary

transfers’ effected through court in execution of a decree.57

It is to be noted that, if the deed of sale is accompanied by a

simultaneous agreement of re-conveyance , the right of preemption that has

arise upon the sale will not be suspended. The existence of a contempoaneous

agreement for resale will not preclude the other co-shares from enforcing their

right of preemption.58 Even a re-conveyance, if actually effected in pursuance

of such agreement, would not bar the preemption proceeding. But the

preemptor will take the preempted property subject to the agreement for re-

sale which can be enforced against him if he had notice of the agreement.

It is important to note that right of transfer accrues on the transfer of

the holding which is not extinguished by subsequent re-conveyance to the

vendor.59

56 19 DLR 136 SC. 57 54 CWN936, 53 CWN 107. 58 53 CWN 678. 59 1985 BCR 35 AD.


27

If there was separation of jama, then certainly the preemptor is ceased to be

co-sharer and is debarred from claiming preemption.Preemptor cannot be

allowed when the land sought to be preempted re-conveyed to the vendor

before filing of the case. If re-sale is mere paper transaction preemption may

be allowed.60

The right of preemption under section 24 of N.A.T Act has to be

enforced by the application and not by suit. Each party entitled to the right

may apply separately and independently. So a co-sharer exercising right of

preempt6ion under section 24 has a two fold remedies open to him. He can

either make an independent application under sub-section (1) or join to the

application already made by another co-sharer as a co-applicant under sub-

section (4). Failure on the part of a co-sharer to avail himself of the remedy

prescribed by sub-section (4) does not deprive him of his remedy under sub-

section (1), the two remedies being independent and alternative.61 A

transferee who is a co-sharer by previous purchase can join as co-applicant. If

the transferee is a co-sharer of the tenancy, he may apply under sub-section

(4)to join as co-applicant, but, being the transferee he cannot make an

independent application under sub-section (1) of section 24 of this Act.62 Any

co-sharer who fails to apply either under sub-section (1) or sub-section (4) (a)

shall have no further right of preemption, so application for preemption under

section 24 will lie to the court, which means the ordinary civil court of ordinary

jurisdiction competent to entertain a suit for possession in respect of the land

concerned.63 Section 87 of this act specifies the jurisdiction of proceeding

under the N.A.T Act to the effect that when under this Act, a court is

authorized to make an order on any application. The application shall be made 60 35 DLR325 AD. 61 58 CWN 957. 62 54 CWN 421. 63 38 CWN 616.


28

to the civil court which would have jurisdiction to entertain a suit for

possession in connection which the application is made. So an application

under section 24 is in the nature of the proceeding under Civil Procedure

Court and the ordinary procedure of the civil court as provided in the code of

Civil Procedure will apply to the proceeding.64

Amendment of preemption petition making a claim on the basis of his

right will not change the nature and character of neither the case nor it will be

barred by the limitation. It is implied that the order of preemption will be

executed as it is a civil court decree in accordance of the provisions of the CPC

upon an application by the preemptor in this behalf and no separate suit for

possession is not necessary. An appeal against an order passed in the

preemption proceeding Shall lie to the Civil Appellate Court having jurisdiction

to entertain such appeals i.e. the court of District Judge to which appeals

ordinarily lie from the orders from the court which the ordinary proceeding.65

It will not be out of place to mention that sub-section (10) of section 24

provides that the right of preemption under this section shall not affect the

right of preemption conferred by the Mohammadan law.

Sub-section 8(iii) of section of section 24 of this Act, empowers the court

to deliver possession of the preempted land to the preemptor. So the

preemptor shall be entitled to the delivery of possession in the preempted

land through court in execution of the preemption order. So sub-section 8 of

this section provides from the date of the order, right, title and interest of the

transferee in the preempted land which accrued from the transfer, shall vest in

the applicant or applicants whose application for preemption has been

64 52 CWN 641. 65 45 CWN 790.


29

allowed, free from all encumbrances whether annulled, i.e. liquidated or

created by the transferee after his purchase. The right, title and interest

accruing to the transferee from the transferor implies the title conveyed by the

transferor including the right of possession. But other right of the transferee, if

any, accruing otherwise than from the preempted transfer, will remain

unaffected. So, the right of preemptor will also be subject to the right of

preemption of all other co-sharers in the tenancy who have not yet exercised

their right provided their right to preempt did not suffer from any defect on

the score of limitation or otherwise.66 If subsequent to the order of

preemption , it is found that the transferee had not acquired any right, title

and interest in the preempted property because his vendor did not have the

proposed title, preemptor is not entitled to claim refund of the preemption

money from the preemptee, so long as the preemption order, which includes

payment of the preemption money to the transferee, stands no question of

refund of the said preemption money can arise.67

It will not be out of place to point out that the court in deciding a case

under section 24 is to set aside the sale under preemption if it is collusive and

fraudulent. The preemptor who claims the right of preemption, on the date of

sale, must continue to possess that right till the date of decree.68

If preemption is allowed, the court shall direct that the amounts due to

the transferee as determined under sub-section (4), (5) & (7) of this section,

empower the court to make an equitable distribution and appointment of the

preempted land amongst the preemptors when there are more than one co-

sharer tenant in whose favour the order has been made. In doing so the court

66 58 CN 975. 67 60 CWN 631. 68 17 DLR 327 DAC.


30

is required to take consideration, the existing possession of the parties. But

such appointment shall not operate as division of the holding. 69 Rateable

preemption cannot be given in absence of positive finding on the issue. When

the preemptors have unequal sharers, it would be fair to apportion between

them such sharers of the preempted land as are proportionate to their

respective sharers in the holding.70 It is to be noted that the right of

preemption is heritable. Pendency6 of a preemption proceeding before a court

means pending but a competent court availing final decision in the matter.71

Modes of enforcement of the right of preemption :

The right of pre-emption under section 24 , has to be enforced by

application not by suit .Each party entitled to the right of pre-emption may

apply separately and independently72.

“ So , a power to avail of oneself of the benefit of section 24(1) is a right vested

by the provisions of section 24 and on transference of a portion or share of

land by co-sharer , the said right becomes a ‘accrued right’ under the

provisions of section 24 of the N.A.T Act”. 73

A co-sharer tenant exercising the right of pre-emption under S24 has

two hold remedies open to him-

He may make an independent application under sub- section (1) and he may

join in the application already made by another co-sharer as a co- applicant

under sub section (4) of the section 24 of the N.A.T Act.

So the remedies under sub section (1) and under sub section (4) are two

distinct remedies.

69 35 CWN 1058. 70 58 CWN 975. 71 1982 BCR 77 AD. 72 40 CWN 121 73 17 DLR 384 Dac .


31

Application made under sub - section (1)of the section 24 of the N.A.T

Act:

If a portion or share of any non –Agricultural land is transferred, a co-

sharer tenant of such land may apply for transfer of that portion or share of

land to him. The co-sharer tenant must apply within 4 months of the service of

the notice issued under S-23 of that Act and in case no notice has been issued

or served he may apply within 4 months of the date of knowledge of the

transfer. There is also a condition that an application for pre-emption must be

accompanied by a deposit of the entire consideration money or the value of

the property transferred as stated in the notice served, together with

compensation at the rate of 5 per centum thereon. Its non fulfillment will

render the application liable to be summarily dismissed.

Application made under sub –section (4)of the section 24 of the N.A.T

Act:

Sub-section 4 gives the remaining co-sharer tenants an opportunity to

join as a co applicants in the pre-emption proceeding. It provides that when an

application has been made under sub-section 1 any of the remaining co-sharer

tenants including the transferee, if one of them, may within the period of 4

months as referred to sub –section 1 or within one month of the service of

notice of the application, whichever is later, apply to join in the application for

pre-emption.

The time for making the application can be taken to mean the time of

actual moving of the application in court and not the time filing the

application.74

74 1955, 08 DLR, 22.


32

Any co- sharer tenant who will not apply either under sub-section 1 or under

sub –section 4 shall have not any further right to exercise the right of pre-

emption. Failure on part of a co-sharer to avail oneself of the remedy

prescribed by sub-section 4 does not deprive him of his remedy under sub –

section 1, the two remedies being alternative and independent.75A co-sharer

after service of notice on him may either join in the original case for pre-

emption or may bring a separate and independent case within time limit76.

One the several co-sharer tenants is entitled to pre-empt to the extent of his

own share in the pre-emption case77.

An application filed under sub-section 1 gives the right to the other co-

share tenants to join as co- applicant and once they file an application to join

as such and make the deposit, they shall be deemed to be co-applicants under

sub -section 1 and this right cannot be defected by subsequent withdrawal of

the original application.78

When the original application for pre-emption under subsection 01 fails

on the ground of limitation the co-applicants prayer for ratable pre-emption

under subsection 04 though made in time cannot be sustained79

No case for pre-emption under section 24 of the Act would lie when the

sole recorded tenant in a Khanda Khatian, sells his land80. Similarly in the case

of Nishkar Pan Vs Mahadeb Ghosh, it was held that where the finally published

record of rights indicates splitting up of the tenancies and separation of the

interest of the co-sharers, the co-sharers must be held to have ceased to be a 75 58 CWN975. 76 1967,20 DLR 480. 77 1969, 21 DLR, 647. 78 1964, 17 DLR, 565 79 1970, 24, DLR, 170. 80 1968, 73, CWN, 742.


33

co-sharer of the land. Hence when one of them transfers his share the other

has no right of pre-emption.

Further , it is to pointed out that if a deed of sale is accompanied by

simultaneous agreement for re-conveyance , the right of that has arisen upon

the sale will not be suspend . The existence of a contemporaneous agreement

for resale will not preclude the other co-sharer from enforcing their right of

pre-emption81. Even a re-conveyance, if actually effected in pursuance of such

agreement would not bar the pre-emption proceeding.82 But the pre-emptor

will take the pre-empted property subject to the agreement for resale which

can be enforced against him if he had notice of agreement.83So a sale with a

condition of transfer does not exclude the operation ofpre-emption right.84

Again, no pre-emption can be claimed in case of deed of release, as deed of

release cannot confer title on any party.85 Further, where the transfer is simply

Benami no question of the right of preemption hereunder arises. So, transfer

occurring in section 24 of the said Act contemplates a transfer for

consideration of money and not transfer for any other consideration.

Essentiality of applicant’s interest in the property to file an application:

The right of pre-emption is not an indefeasible right. If during the

pendency of the proceeding of the pre-emptor ceases to be a co-sharer the

right is lost. In order to maintain a claim for pre-emption the pre-emptor

should have an interest in the holdings as a co-sharer tenant not only at the

time of filing of the application for preemption but also throughout the

81 53CWN 678. 82 57 CWN253. 83 13 DLR 287 Dac 84 35 DLR230 AD. 85 11 DLR 535


34

proceeding86. Similarly in the case of Chandro kumar Vs Abdul Motaleb learned

judges of the supreme court held that “the pre-emptor must not only have a

subsisting interest in the holding when he files an application for preemption

but also must continue to hold the self same interest to the date when the

case is finally disposed of”. Equally a fresh interest acquired at a later stage

cannot be tacked on the interest held in the beginning, but lost during the

pendency of the application. So, the pre-emption right which must exist not

only when the application is made but also when the claim is finally disposed

of.87

Time limitation as to exercise the right of pre-emption:

If notice is served under section 23, the applicant should file an application for

the right of pre-emption within four months of the service of notice and if no

notice had been issued than within four months from the date of knowledge of

such transfer where he may apply under sub-section 01 of the said Act. If he

files an application under sub- section 04 then, he has to file within four month

referred to in the subsection 01 or within one month of the service of notice of

the application.

In the case of Hari Charan kar vs Abhoy Charan Dey a question was raised as to

the period of limitation for filing an application under section 24 when no

notice was served under section 23 of the Act. Following the decisions of the

special branch in Asmat Ali‘s case, it was held that “where no notice under

section 23 of the Act has been served upon the applicant for pre-emption, the

period of limitation for filing the pre-emption application is 3 years from the

86 1966, 19 DLR, SC 36 87 17 DLR, 327 Dac.


35

date of sale under article 181 of the Limitation Act and not four month as

provided in section 24 of the Act.”

The period for limitation for filling an application for pre-emption under

this section is the same as provided in section 96 of the State Acquisition and

Tenancy Act. 1950. The burden of proof of the date of knowledge lies on the

petitioner88. In the language of Murshed C.J:

“It is incumbent upon the petitioner to show that he is still within

the period of limitation, namely four months from the date of the

actual knowledge of the transaction”89.

If, he does not come to the court within this period his application will be

dismissed90.

When the right of preemption is accrued:

It is apparent that right of pre-emption under section 24 of N.A.T Act

accrues on the “transfer of land of non – agricultural tenancy” whether

entirety or a portion or share thereof. 91 The word ‘land’ in section 24 is

intended to include structures on the land also if it is also transferred along

with land as part and parcel of land and not separately from the consideration

for both is one and same and in that case right of pre-emption will extend up

to those structures on the transferred . 92 So, section 24 is attracted to a

transfer of non agricultural land with building thereon. 93

88 1969, 21 DLR, 633. 89 1964, 18 DLR, 618. 90 1969, 21 DLR, 262. 91 12 DLR 785 Dac 92 1960 PLR 249 Dac 93 33 DLR 323 AD


36

So, from the section 24 of the Non Agricultural Tenancy Act 1949 it is

established, that right of preemption accrues on the transfer94. In the case law

reported in 1985 BCR35 Ad, it has been held that right of preemption accrues

on the transfer of the holding which is not extinguished by subsequent re-

conveyance. The date of the accrual of the right is not date of execution but

the date of registration of the deed of transfer, as according to section 54 of

T.P act, title pass after registration of the document95. According to S-24 cause

of action arises in case of sale from the date of registration96. So the right of

preemption accrues after the registration being complete under S.60 and 61 of

The Registration Act97.

In this stage, the expression ‘transfer’ requires an appropriate

explanation. In section 24 of N.A.T Act the word “transfer” must be a transfer

for a pecuniary consideration. The word pecuniary means a money and money

alone .98 So, Heba–bil ewaz for any pecuniary consideration is a sale and is

not exempted but Heba – bil ewaz for any other consideration is an exchange

and is exempted under clause (b) of sub section 11 Heba–bil ewaz in

consideration of payment is not a pecuniary consideration . So, in Heba–bil

ewaz, there no right of preemption accrues. 99So,where love and affection

combined with payment of money being interpreted as Heba, the right of pre-

emption does not accrue.100

Further, the word ‘transfer’ is not restricted to ‘voluntary transfers’ but

is used in the ordinary and general sense and must be interpreted in the

94 506: 501i 1981 BLD 423 AD 95 44 CWN 802 96 21 DLR 599 97 82 CWN 184 98 20 DLR 433 Dac 99 15 DLR 671 Dac 100 12 DLR 479 Dac


37

ordinary dictionary meaning to include transfer by ‘operation of law’ as also

‘involuntary transfer’ affected through court in execution of a decree.101 A sale

by an official assignee, through with the permission of the court is a voluntary

transfer and is subject to the right of pre-emption.102

But the point still remains to be controversial. Because the S. 24 does

not speak of the particular and details of the transfer but of transfer itself. It

seems obvious that the period of 4 months has been allowed in order to give

the applicant an opportunity to obtain details of the transfer. So, a non notified

co-sharer seeking pre-emption is to prove that the date of knowledge of

transfer and that his petition is within 4 months103. In case law reported in

1969 DLC 229, it has been held the right of pre-emption accrues from the date

of knowledge of transfer and not from the date of registration of the

document. It cannot be expected that a pre-emptor should keep a perpetual

which at the time when the sale deed has been so copied. When the applicant

has got the knowledge of transfer, he need not require to wait for the

registration of the deed which is the ministerial work of the registering

department. It is not possible for the applicant to know when the document

would be copied in the registration office and become final.

This controversial point should be set at rest once for all. It is pertinent

to point out that in case law reported in 31DLR Page 118 AD 230H, it has been

held that a petition for pre-emption con be filed before the document of

transfer was copied in the Registration Volume of the Registration Office. The

101 1963 SC1205. 102 53CWN 107 103 29 DLR 178 H


38

prematurity is duly cured; so there is no prohibition in filing of preemption

earlier than the registration of sale deed104.

A non notified co-sharer can apply for pre-emption from the date of the

knowledge of transfer105. This knowledge of transfer is based on inferences

from circumstances106.

So, in consideration of the above discussion – net result is that the right

of pre-emption accrues from the date of knowledge of the transfer and it to be

borne in mind that the heavy onus lies on the applicant to substantiate by

uncontroverted evidence that he has come within the limitation as provided by

statute107.

In the case law reported in 52 CWN 64, it has been held that the right of

preemption is not dependent on the notice of transfer under S 23 being

served on him , the right accrues as soon as the transfer is made irrespective

of whether he is served with notice or not. Subsequent transfer is subject to

the right of pre-emption.108

So pre-emptor must have to be a co-sharer of the tenancy on the date of

the registration of the conveyance sought to be pre-empted. If the title deed of

the pre-emptor is executed before the registration of the conveyance sought

to be pre-empted, after the registration of it pre-emptor’s title deed is

registered, the pre-emptor will have no locus standi109.

104 34 DLR 264 H 105 19 DLR 6151 106 25 DLR 91 H 107 19 DLR 655 Dac 108 33 DLR 113 AD 254H 109 33 DLR 323 AD.


39

Co-shearer’s right of preemption:

In order to claim for preemption the preemptor should have an interest in

tenancy as co-sharer.110and preemption proceeding lies at the instance of co-

sharer tenant.111an applicant intending to get preemption is to prove all

requisites under section 24.one of the several co-sharers is entitled to preempt

to the extent of his own share in preemption case112.so, the right of

preemption can be exercised under sub-section (1) as well sub-section of

section 24 of section of N.A.T Act.

The person must have some share of some fractional interest in the

property consulting the tenancy .a person may be a co-sharer tenant by

inheritance and by purchase .so any co-sharer tenant can exercise the right of

preemption if a portion or share of tenancy is transferred to anyone other

than a co sharer in the tenancy. A co-sharer by purchase is entitled to preempt

a transfer of a share or portion of a tenancy although his own purchase is

subject to right of preemption of other co-sharer tenants. A person who

claims to preempt on the basis of himself being a co-sharer by recent purchase

can do so only if his own deed of purchase was registered before the

registration of the transfer sought to be preempted. 113

But co-sharer by inheritance and a co-sharer by purchase both apply for

preemption, the former’s right would prevail over the latter’s so long as his

right of preemption in respect of the latter’s purchase services. (73 CWN 654)

Both the co-sharer by inheritance and by co-sharer by inheritance is not

perceptible, while the transferee made to co-sharer by purchase is

110 21 DLR 599;17 DLR 327 111 1963 PLD 939 Dac;1962 PLD 545,19 DLR 365 SC 112 21 DLR 647 Dac 113 60 CWN 57;1981 BCR 38 Ad


40

perceptible.114 It is to be noted that as soon as transfer of a share or portion of

tenancy takes place, the right of preemption accrues to the co-sharer tenant

and any subsequent transferee of the transferee takes the property subject to

that right, whether the subsequent transfer is effected before or after filing of

the application for preemption against the original transferor and shall not be

entitled to any money in excess of the original deposit.115

So as co-sharer by purchase ,though himself liable for preemption is

however entitled to preempt a subsequent transferee by virtue of his price

purchase provide his sale deed is registered earlier .but a co-shares right of

preemption is an overriding right, and once that right is exercised by an

original co-share by inheritance would supersede the claim of the co-sharer by

purchase to preempt.116If the co-sharer amicably partition the lands of holding

amongst themselves each possessing separate portion of land in his share,

they cease to be co-sharers and an application for preemption in respect of

transfer by one of them is not maintainable.117 But if the ‘Jama’ is not split up

and separate tenancy are not created following such partition even though the

co-sharer tenants are in separate possession of the land, thay6 shall have the

right of preemption if any one of them transfer his share to stranger.118 S0

partition does not bar a petition for preemption. Though partition does not bar

the preemption yet the division of tenancy under section 117 of S.A.T Act, bars

the right of preemption.119Further ,when sale recorded tenant in a “khanda

khatian (i.e., creation of a separate tenancy for the land cut off from the parent

tenancy) sells his share of land, the persons recorded in the parent khatian

114 (6 DLR 267; 557; 12 DLR 248; 31 DLR 88 Ad, 33 DLR 113 Ad, 323 Ad, 37 DLR 154H 35 DLR 230 Ad, 137H, 1985 BCR 236H). 115 50 CWN 806 116 73 CWN 654 117 53 CWN 107. 118 55 CWN 717. 119 35 DLR 230 Ad


41

cannot be regarded as his co-sharers even though ‘jama’ is recorded in the

‘khanda khatian’ as ‘samil khatian’ with the ‘parent khatian’ and there is right

of preemption. A co-sharer in the land transferred, and not a c-sharer in

tenancy is entitled to preemption under section 24.

The expression ‘co-sharer tenant’ means a person who claims to be a c-

sharer vis a vis other tenants of the holding. The word co-sharer ordinarily

used, means a person who shares in the profit. No amicable arrangement for

separate or exclusive possession of some lands of the tenancy by each of the

co-sharers takes away the character of all of them as “co-sharer tenant’ of the

entire holding .the right of preemption arises when not only a share but also a

portion of the holding is transferred. The portion indicates even in the

particular portion in the exclusive possession of one of the co-shares, the other

co-sharers given the right to preempt. But there will be no right of preemption

under section 24 if the transfer of the portion of holding is made to co-sharers

in the tenancy who existing interest has accrued otherwise either by

purchase.120

Forum of trial:

Under section 24 valuation of the property determines the court’s

jurisdiction.121The purchase money determines the forum of trial but not the

market value. So, the valuation of the property sought is to preempted in

determining the court’s jurisdiction. Value of the prpprety means

consideration paid by the ‘cabla’ in respect of land which does not include the

amount deposited by way of compensation.

120 35DLR 230 AD 121 21 DLR 404 DAC.


42

Pecuniary jurisdiction is to be determined by the value of the sale deed the

statutory compensation is not be added to it. So, amount of consideration

money or value of transferred holding a stated in the document of transfer

determines the pecuniary jurisdiction in case of sale.122 The statutory

compensation can not be regarded as the value of the land for the purpose of

jurisdiction. Where the right of preemption arises out of execution sale, the

application for preemption should accordingly, be made in the court which

would have jurisdiction to entertain suit for preemption of the holding and not

the court which sold the holding in execution.123

The application is to be filed so that the court within the jurisdiction of

which portion of the holding which has been transferred is situated and the

value of portion or share as recited in the notice will govern the jurisdiction.

The pecuniary jurisdiction is determined by the value of the subject matter.

For the sub-section (1) of the section 24 it is apparent that an application

for preemption under the aforesaid section will lie to the court which means

the ordinary civil court of jurisdiction competent to entertain a suit for

possession in respect of the land concerned. The section 87 of the N.A.T Act

specifies the jurisdiction under this Act to the effect where under this Act a

court is authorized to make an order an order on an application shall be made

to civil court which would have jurisdiction to entertain a suit for possession of

the land in connection with which that application is made. provisions of C.P.C

applies to the cases coming under coming under section 24.124under sub-

section (90 of section 24 an appeals lies .so an appeal against an order passed

in the preemption proceeding shall lie to the civil Appellate court having

122 20 DLR 535. 123 38 CWN 616. 124 20 DLR 1220,31 dlr 51 Ad


43

jurisdiction to entertain such appeals, that is the court of District judge to

which appeals ordinarily lie from orders of the court which hold the original

proceeding. There is no bar of revisions. But there is no second appeal, as the

section does not provide it.125

The court in deciding a case under section 24 is to set aside the sale

under preemption if is collusive and fraudulent.126So, the question of title can

be gone into in proceeding for preemption.

Causes of action and Limitation for filing pre-emption petition in the

court:

The right is to be exercised within four months from the date of services.

If no notice is served then application may be made within reasonable time

from date of knowledge.127

Cause of action arises in cases of sale under P.D.R. Act from the date of

confirmation of sale.128Cause of action arises in case of sale from date of

registration of deed.129

The period of limitation for making application under sub-section (1) is

four months from the date of service of notice of transfer under section 23 of

the NAT Act. So according to said subsection, the petition is to be filed by co-

sharer tenant within four months of service of notice under section 23 of NAT

Act.130

125 45 CWN 790 126 18DLR 517,15 DLR 524 SC 127 Ayetunnissa V. Johar Ali, 45 CWN 735 128 14 DLR 847 129 21 DLR 599 130 1934 Cal 350; 45 CWN 735


44

If the notice of transfer is not served of issued, the period of limitation is

four months from the date of knowledge of such transfer. It is to be noted that

the period of limitation for filing application for pre-emption is the same as

provided in section 96 of the SAT Act.131

The knowledge of transfer may be based on inference from

circumstances.132Burden of proof of date of knowledge lies on the

petitioner.133If a party does not apply for pre-emption within the time

prescribed by the statute, he loses his right of pre-emption.134

Further is to be pointed out that the period of limitation for an

application to join as co-applicant under sub-section (4) (a) of section 24 is one

month from the date of the application under sub-section (1) by the original

applicant or four months from date of service of notice under section 23,

whichever is later.

In the case of the transferee co-sharer joining as co-applicant also, the

period of, limitation is the same but the starting point thereof is the date of

application sub-section (1) by the original applicant and not the date of service

of notice under sub-section (3) on him.135

But if a non-notified co-sharer instead of applying under sub-section (4)

(a) to join as co-applicant to and application already made by another co-

sharer, avails of the remedy of independent application under sub-section (1)

the period of limitation in such case will not be one month from the date of

application by other co-sharer as prescribed under sub-section (4) of section 24

131 19 DLR 615 132 21 DLR 463 133 1969 PLD 979 Dac 134 21 DLR 262 135 54 CWN 442


45

of the NAT Act.136 Such non-notified co-sharer will get the benefit of the period

of limitation prescribe under sub-section (1).

It is to be noted that the addition of parties without claiming relief does

not attract the question of limitation but if relief claimed then the question of

limitation will be involved.137

A co-sharer availing of the remedy of an independent application under

sub-section (1) is not concerned with the period of limitation as laid down

under sub-section (4).138

So the right of pre-emption can be exercised under sub-section (1) and

sub-section (4) of section 24 which provides two folds of limitation as

described above.

But after the filing of the petition and lapse of statutory period of

limitation to pray of ratable pre-emption, the co-sharers tenants and other

parties concerned become unnecessary parties and as such rule cannot be

affected for not substituting the heirs.139

It is to be noted that an application for pre-emption is a suit and so a

minor cannot take advantage of his minority under section 6 of the Limitation

Act; he can take advantage of section 18 of the Limitation Act.140 So when an

application for pre-emption has been made, any of the remaining co-sharer

tenants including transferee, may within the period of four months as

136 57 CWN 571 137 19 DLR 655 Dac 138 57 CWN 571 139 33 DLR 113 AD 140 27 DLR 418; 55 CWN 561


46

prescribed in sub-section (1) or within one month one month of the date of

service of notice under sub-section (3) which ever be earlier apply to join in

application for pre-emption.141 If a party does not apply for pre-emption within

time, he loses his right of pre-emption.142 Further to be pointed out that when

the original pre-emption under sub-section (1) fails on the ground of limitation,

the co-applicant’s prayer for pre-emption under sub-section (4) of section 24

made in time, is not sustainable.143

From the above it is clear that under sub-section (1) of section 24

provides for a period of four months from the date of service of notice U/S 23

or within four months from the date of knowledge of transfer and sub-section

(4) provides that the remaining co-sharer including transferee may join in the

petition under sub-section (1) or within one month from the date of service of

notice under subsection (3) of section 24 whichever is latter. If the pre-

emption petition was filed within time, amendment petition will not be barred

by limitation.144

The position of law of pre-emption as to Non-agricultural land after

the passing of SAT Act:

The right of pre-emption under section 24 of the NAT Act is protected

under the proviso to section 85(2) of the NAT Act.145The right of pre-emption

vests in a tenant of non-agricultural land under section 24(1) of the NAT Act.146

When the tenancy will be perpetual it will not be governed by SAT Act, 1950

and when the tenancy is not perpetual it will be governed by TP Act and SAT

141 20 DLR 480 Dac 142 21 DLR 262 143 24 DLR 170 Dac 144 38 DLR 265 AD; 1986 BLD 158 AD 145 17 DLR 384 Dac; 33 DLR 323 146 1967 PLD 546 Dac


47

Act.147 Section 24 of the NAT Act has specific provision for pre-emption of lands

which are non-agricultural land.148 In view of the definition of holding as given

in section 2(13) of the SAT Act it cannot be said that the right of preemption

can be exercised in respect of non-agricultural land.149 Hence it may be

mentioned that there are specific provisions for pre-emption of non-

agricultural land under NAT Act.150 The sub-section (2) & (3) of section 81 of

SAT Act have not repealed the section 24 of NAT Act.151 Now the position of

the right of pre-emption U/S 24 of NAT Act is specified after the passing of E.P.

Ordinance No. 9 of 1967 and Ordinance No. 8 of 1967.152

So the pre-emption in respect of non-agricultural land can be claimed

only under section 24 of NAT Act and section 96 of SAT Act will not apply to

non-agricultural land.153

It is to be noted that the petition for preemption was framed under

section 96 of the SAT Act but subsequently preemption was claimed under

section 24 of NAT Act, in that matter it is held that prayer ought to have been

granted as it is not correct to say that new case has been made. Since the relief

prayed for could be given by the court under 24 of the NAT Act, even if that

section had not been specifically mentioned in the application.154

Misdescription of the provision of law in the title of suit – no bar to treat the

suit as one under relevant law.155 So if the relief claimed by petitioner

allowable under some other law of the country, then the court is bound to

147 1969 PLD 979 148 1970 PLD 10 Dac 149 33 DLR 323 AD 150 16 DLR 77 151 21 DLR 633 152 20 DLR 1197 153 35 DLR 230 154 27 DLR 11 155 27 DLR 418


48

apply the same notwithstanding the misdescription of law in the cause title of

application.156

NAT Act is not affected by SAT Act as the right of preemption under

NAT Act is a vested right.157 Whether section 90 of the SAT Act and section 4

of Land Reforms Ordinance controls the Preemption proceeding under

section 24 of the NAT Act or not?

It is common knowledge that the government is the paramount title

holder of all lands in Bangladesh and as such the ultimate controller of the

quantity of land to be held by the tenants. So after the promulgation of SAT

Act only two kinds of permanent tenants, one for agricultural lands and

another for the non-agricultural lands, have been created, each holding land

directly under the government by virtue of the statutory gift as provisions in

the section 20 of SAT Act. The right of retention of retainable land on payment

of new rate of rent is the creature of statue and as such statutory right,

established between the government and the people of this country. Each

family is allowed to hold 60 standard bighas. 158\

With the emergence of Bangladesh, the government of the People’s

Republic of Bangladesh has made the new laws by amending the previous laws

for ameliorating the condition of the raiyats and tenants of this country as well

as to provide lands to the landless peasantry. By the promulgation of P.O. 98 of

1972 the land ceiling had been reduced from 375 standard bighas to 100

standard bighas. By ordinance No. 10 of 1984 it has been reduced to 60

standard bighas. The creation of this limitation in the quantity of land is

156 1967 PLR 305 Dac 157 16 DLR 77 158 Section 4 of the Land Reforms Ordinance, 1984


49

absolutely in the hands of the Government, as the Government is the

paramount title holder of all lands in Bangladesh.159

It will not be out of place to observe that section 90 of SAT Act controls

the provisions of sections 7,8,9 and 21 of the NAT Act;160 but there is no

specific provisions in the section 24 of NAT Act and section 7 has pointed out

that section 24 will be guided by section 90 of SAT Act; though section 96 of

SAT Act lays down that before a preemptor is entitled to get preemption, he is

to show that the area of land in his possession does not exceed the maximum

limit he is entitled to retain under section 90 of SAT Act.161

So in each case of these cases (preemption U/S 24 of NAT Act and U/S 96

of the SAT Act) the quantity of land held by tenant or raiyat should not exceed

60 standard bighas. As it may be called the yardstick for determination of

capacity of tenant or raiyat to hold lands. So any attempt to take away and

settled land is not in excess of 60 standard bighas will be unauthorized in law.

The right of preemption is a statutory right and is a creature of statute.162 As

the preemption is in a manner of transfer by sale through the order of the

court, this certainly be hit by section 90 of the SAT Act and section 4 of the

Ordinance No. 10 of 1984.163

So from the above discussion it can be said without semi, demi,hemi on

a sting in the aplomb of the heart that the preemption proceeding under

159 48 DLR 93 AD 160 Vide Ordinance No.9 of 1967 161 21 DLR 599 162 30 DLR 75 163 1981 BCR 17 (AD)


50

section 24 of the NAT Act will be controlled by section 90 of the SAT Act and

section 4 of the Land Reforms Ordinance, 1984.164

Pre-emption under section 24 of the NAT Act and pre-emption under

Muslim Law:

If a co-tenant files an application under section 24 and another bring a

suit under Muslim Law and either of them joins the other in his case, what will

be the position. Either the application under section 24 should not be

disposed of without hearing the suit under Muslim Law or both should be

heard together; in such case if the suit of the later succeeds on merits, the

application under the provision of the statute should be dismissed.165

Section 24(10) saves the right of preemption under Muslim Law. If

transferee is preempted under Muslim Law, no application for preemption

under this section will lie.166 This subsection lays down the provision in which

cases there cannot be any preemption. So preemption under Muslim Law

demanded formalities to be followed. The formality Talabi Moasibat is to be

carried out on the execution of sale deed. Under the Muslim Law there is no

obligatory provision for execution and registration of document for the

purpose of sale of immovable property.167

Important features of the right of pre-emption under section 24 of NAT

Act at a glance:

(1)The right of preemption is a statutory right and is a creature of a

statute.

(2) Section 24 gives the right of preemption to a co-sharer only. 164 35 DLR 79 165 21 DLR 211 Dac 166 Nalinaksha v. Abdul Jalil, AIR 1936 Cal. 398 167 1 BLD 34 (HD)


51

(3)The right of preemption under section 24 has to be enforced by

application and not by suit.

(4)The right of preemption is to be exercised within four months from

the date of service of notice under section 23 or if no notice had been

served, then within four months from the date of knowledge of transfer.

(5)Right of preemption accrues on the transfer of non-agricultural land

which is not extinguished by subsequent reconveyance.

(6)Sale with a condition of retransfer does not exclude the operation of

preemption right.

(7)Partial preemption is not allowed under section 24 of the NAT Act.

(8)The right of preemption under section 24 of the NAT Act is a vested

right.

(9)Right of preemption under section 24 of the NAT Act is not affected

by section 96 of the SAT Act.

(10)In case of conflict between preemption under section 24 of the NAT

Act and under Muslim Law; preemption under Muslim law will prevail.

Procedural matters:

The section 24 further prescribes the procedure how the application for

preemption should be dealt with and disposed of.

who can apply for preemption: Co- sharers of a holding, when a portion

of share of non-agricultural land is transferred. Where a co-sharer by

inheritance or a co-sharer by purchase both apply for preemption , the

former’s right will prevail over the latter’s so long his right of

preemption in respect of tatter’s purchase survives.168 A co- sharer by

purchase to preempt a transfer of a share or portion of a holding

168 (37 dlr 138h, 33 dlr 113 ad 269ad 1983 bld 103 ad 35 dlr 54 ad 230 ad 34 dlr 225 h)


52

although his own purchase is subject to right of preemption of other co-

sharer tenants. A person who claims to preemption the basis of himself

being a co-sharer by recent purchase, can do so only if his own deed of

purchase was registered before the registration of the transfer sought

to be preempted,169 So, as soon as transfer of share or portion of a

holding takes place right of preemption accrues to the co-sharer tenants

and by subsequent transferee of transferee takes the property subject

to that right whether the subsequent transfer is in effect against the

original transferee170 such subsequent transferee may be preempted.

Each party entitled to the right may apply separately and

independently171 a co-share tenant may either make an independent.

Application under sub-section (4) of section 24.172 so, a transferee who is

a co-sharer of the tenancy, may apply under sub-section (4) of section 24

to join as a co-applicant, but being the transferee he can’t make an

independent application under sub-section(1).173 Any co-sharer who fails

to apply either under sub-section(1) or under (4) of section 24 shall have

no further right of preemption. So, one of the several co-sharer tenants

is entitled to preempt to the extent of his own share.174 it is to be noted

here that co-sharer tenant includes the benamder of such tenant and

such benamder can apply further a purchaser subsequent to the transfer

sought to be preempted is entitle to the file a petition175 when a minor

sues, through his natural guardian being mother as a next friend , the

169 (60 cwn 57). 170 ( 50 cwn 807). 171 (40 cwn 1211). 172 (52 cwn 85) 173 (52 cwn 85) 174 (21 dlr 647dec). 175 (46 cwn 8491, 54 cwn 442)


53

knowledge of the mother as ag uardian shall be deemed to be

knowledge of minor.176

Parties who are to be impleaded in a preemption application: when an

application is made by a co-sharer tenant –

(1) all other co- sharer tenants and

(2) the transferee are to made parties in a preemption proceeding.

Impleading a necessary party in preemption proceeding is mandatory

on a preemptor177 the transferee principle and necessary party and is

entitled to notice under subsection(3) of section 24. It is his purchase

that is the subject matter of the proceeding.

It is to be noted that the transferor is neither a necessary party nor a

property party. He has no locus stani to take part in the preemption or to

contest the application on the ground that there has been no transfer at all.178

so persons are to be included in preemption petition are:

1) In case of petition by a co shearer by inheritance – all other remaining

co-sharers by inheritance aded.

2) In case of petition by co- sharer by purchase – all other co sharers by

purchase and by inheritance are to be impleaded179 the co- sharer

tenants are to be imple not necessary party. the appellant is not

required to be impleaded the other co-sharer tenant or to give them

notice under subsection (3) it is to be noted that there is no provision

176 (1982 bcr 127 h) 177 (1984 bcr 59 ad 251 ad) 178 (61CI.j 410; 45CWN 658,25DLR 359H; 21 DLR 647Dac; 31 DLR 88 AD.33 DLR 113 AD, 28 DLR 8 Dac, Contra 26 DLR 859H) 179 (23 DLR 68 Dac; 31DLR 88 AD)


54

under section 24 of N.A.T Act, unlike the section 96 of S.A.T Act to make

other co- sharers tenants of the holding , party to the proceedings180

But other co-sharer tenants are entitled to join as co-applicant and

fulfilling the conditions laid down in the subsection 4 (a)and (b) will be as

applicable in the proceedings. Subsequent transferee of the original transferee

, if any ,may be at the option of the applicant impleaded as the opposite party

in proceeding and as such a proper party. A subsequent transferee of the

original transferee is a necessary party in the preemption proceeding. A

subsequent transferee may be entitled to preempt in the same proceeding

along with his transferor. So, in a proceeding of preemption under section 24

under which only the co-sharer have the right of preemption and it is not

necessary to join all co-sharer in such a proceeding181 It is be noted that

impleading of a necessary party in the preemption proceeding is a mandatory

for the preemptor182 who is proper party and necessary is to be determined.183

Deposit under sec. 24(2)&(4):

Sub-section (2) provides that a co-sharer is required to deposit in the

court the mentioned in the notice under section 23, together with

compensation at the rate of five percent of such amount at the time of

making the application. Value of the property means the consideration money

paid by kabala in respect of land sold which does not include the amount

deposited by way of compensation to be paid to the disappointed transferee

1) 180 (37 DLR 154H,35 DLR 230 AD ; 1986 BLD 297; 1986 BCR 323 AD bangladesh Supreme Court Digest Vol I page 236, AD 33 DLR 269 AD, 113 AD) 181 (28DLR 7 SC ; 31 DLR 88AD ;35DLR 74H ; 230 AD 79 HD) 182 (1984 BCR 271 AD ; 1981 BCR 59 AD) 183 (vide 14 DLR 647 DAC ; 8 DLR 5 SC ; 30 DLR 417 H ;26 DLR 99 AD ; 33 DLR; 113AD , 323 ,35DLR 230 AD )


55

preemptee. This statutory compensation can’t be regarded as the value of the

land for the purpose of jurisdiction.184

Further sub-section(4)(b) lays down that any co-sharer tenant applying

under sub-section 4 (a) to join as a co applicant is required to deposit his share

of the consideration money and compensation as determined by the court,

within the time fixed by the court , so sub-section (4)empowers the court to fix

the share of the applicants for preemption. They may allowed preemption in

equal shares or in shares proportionate to their original shares185. The

condition precedent for being allowed to join as co-applicants is the money is

tobe deposited in the treasury under orders of the court and the deposit

made in the treasury is valid deposit under sub-section (1) of section 24.186

When deposit is to be made:

The sub-section(2)provides that unless the applicant deposit the

consideration money and compensation at the time of making the application

under sub-section (1), the application shall be dismissed, with reference to

similar provisions in sub-section(3) of section 96 of S.A.T act, it was held that

an application for preemption must be accompanied with deposit required by

law; otherwise the application must be dismissed,187 So deposit is to be made

at the time of making application188.deposit made after but within the period

of limitation is all right.189

184 (21 DLR) so entire 1986 BLD32 H) 185 (35CWN 1058) 186 (59CWN 849) 187 (34DLR 272H ,39CWN 232, 60 CLG 576 ;2DLC 245; 22 DLR 535, DAC ;1968 PLR 396 DAC ). 188 (1948 CAL144;64 CLG 80 : 31 DLR 89 AD) 189 (10 DLR 54 ; 8 DLR 23 17Dlr 565; 59 CWN 939).


56

In case law reported in 61 CLJ 27, it was held that , it is not necessary that

deposit should be made on the same day as application. An application is not

liable to be dismissed on the ground that the deposit is not made on the very

day of filing application under sub-section(1) of section 24. If the deposit is

made within the period prescribed for making application, there is sufficient

compliance with the section.

In case law reported in 1937 CAL 377 it was observed the expression “at

the time of making it” should be liberally interpreted. The expression means

the point of time when the application is brought to the notice of the court.

Again a case law reported in 40 CWN 1023 it was expressed the view that the

whole scheme in the matter of deposit, whether under subsection (1) or

subsection (4)(a),seems to be that the deposit must be made within the tie

limit imposed by the statute for making the application.

It is to be noted that the court has no power to extend the for deposit

beyond that time limit prescribed in the statute. But if the is caused by reason

of the fault of the court or it’s officer, the court is bound to relive the

applicants against the prejudice caused.190 where delay is making deposit is

caused by reason of certain treasury rules, the delay should be condoned.191

Where because of practical difficulty of depositing on a statutory the deposit is

made on next opening day, the delay should be ignored.192 For deposit under

subsection(4)(b) however, the present statute empowers the court to fix the

time within restriction of time limit prescribed in subsection (1) of section

190 (40 CWN 1032;680) 191 (1938 CAL 792 ;CLJ 8). 192 (41 CWN 1201; 1212).


57

24.193 So the deposit is to be made at the time of filling petition. (10 DLR 54; 17

DLR566;1969DLC 144).

Whether proportionate deposit can be made:

The answer is in affirmative we know that co-sharer tenant can join as

applicant under subsection (4) for rateable preemption. (1963 pld 364 DAC

1960 PLD ) claim for rateable compensation money or the value of the share of

the holding had not been separately stated in the document or notice, the

jurisdiction to make such an ascertainment to determine such value must be

held to be inherent in the court trying applying as being as an incident of

trial.194

Notice:

Subsection (3) of section 21 provides that notice of the proceeding

should be issued only after the deposit under subsection (2) of section 24 of

N.A.T Act, and served upon the transferee inviting him to file written

objection of whether sum he has paid since his purchase towards rent, taxes

etc and for annualing any encumberences. So the transferee is required to

appear and state what other sums besides the consideration mention in the

document, he has paid on account of property in respect of rent and for

annulling encumbrances on the property. Where no notice is served on the co-

sharer tenant, onus of proving the date of transfer does not lie on the co-

sharer.195 The court shall then direct the original applicant as well as the co-

applicants who have joined, to deposit the amount paid by the transferee on

the aforesaid accounts, with six and a quarter per cent per annum interest

calculated from the date of payment to the date of deposit. 193 (1981 BCR 293H, 1981 BLD 328AD, 30 DLR 88 AD, 1986BLD 32H) 194 17BLd 618 DAC 195 35 DLR 238 HD.


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Where the value of improvement can be claimed by transferee-

preemptee:

The same can be claimed in the preemption proceeding.196 But in case

law reported in 30 DLR 75H, it has been held that improvement made by the

preemtee does not create a clog to the right of preemption and does not alter

the nature of transfer.

From the sub-section 3 of section 24 it is apparent that the transferee

preemptee is entitled to be re-imbursed in respect of amount legitimately

spent by him in paying off or discharging the encumbrances created before the

transfer; but he cannot claim compensation for encumbrances created by him

after the date of transfer.197

Building constructed by the transferee on the property after his

purchase are encumbrances created by him and he is not entitled to get the

costs of the building from the preemptor under sub-section (3)198 the

transferee is not entitled to claim compensation for improvements done since

his purchase, where preemption right is upheld.199 On the contrary, the

transferee is liable for damages if he has committed any act of waste or

caused deterioration of the value of the property by cutting trees and digging

earth etc, during the pendency of the preemption proceeding.200

196 Vide subsection (3) of section 24 (DLR 312 Dac;19 DLR 318 Dac, 13 DLR 889 contra 1961 PLR 626 Dac; 47 CWN 184) 197 1985 BCR 430 AD. 198 1930 Cal 547; 1934 Cal 749. 199 74 CWN 897 200 39 CWN 459,!985 BCR 430 AD.


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Rateable preemption :

Claim of rateable preemption by the transfaree can be made even in his

written objection which he files in travesting preemtion application.201 It is to

be noted that remaining cosharers may join as co-applicant. Subsection (4) of

section 24 makes provision for co-sharer served with notice under subsection

(3) apply to be joined as party. It also provides that co-sharers who are not

original applicant or applicants under subsection (4) are not entitled to get

preemption.202 Subsection (4) empowers the court to fix the share of the

applicants for preemption, they may be allowed to preemption in equal shares

proportionate to their original share. The condition precedent to being allowed

to join as co-applicants is deposit of money. Rateable preemption cannot be

given in absence of positive finding on the issue.203 So transfer of portion or

share of non-agricultural land to a stranger opens right of preemption to the

co-sharers.204 But i the transaction is a colourable one or mere paper

transaction then there has been no real retransfer and the right of preemption

will prevail.205

Time Limit for co-applicant:

Four months from the date of service of notice of transfer or one month

from the date of application by a co-sharer, whichever is later. It also provides

that co-sharers who are original applicants or applicants under the section

24(1) are ineligible to get preemption. As to the time limit of one month of

application for preemption, there may be cases in which the notice of co-

sharer’s application for preemption may be served before the expiry of one

201201 1986 BLD 333Ad, 36 DLR 250H=1984 BLD 135H, 38 DLR 265 AD but see 1982 BCR 73H 202 40 CWN 1023. 203 1982 BCR 73H, 36 DLR 205H,259H. 204 35 DLR 230 AD, 1986 BLD 333 AD=38 DLR 285 AD. 205 1985 BLD 82 AD, 38 DLR 265 AD, 1986 BLD 333 AD.


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month of application. In such cases the court will receive an application

beyond one month.206

Disposal of Application:

Subsection (5) deals with the final disposal of application and the

payment out of the money in deposit. If the deposits required under

subsection (2) or clause (b) of subsection (1). As the case may be and under

subsection (3) are made, the court shall make an order allowing the application

and directing that the deposits made under subsections (2) and (3) shall be

paid to the transferee or to such person as the court things fit. If the

application be dismissed for default and thereafter deposit is withdrawn by

depositor in collusion with the transferee on restoration, preemption granted

or money ordered to be brought back.207

Subsection (6) of S.24:

The subsection(6) deals with the cases where the amount of

consideration money as stated in notice under section 23 is deposited by

applicant for preemption. The court is given the power to determine the

amount of consideration after giving the transferee an opportunity of being

heard. It is the amount so determined by the court together with

compensation at the rate of 5% thereon that will be paid to the transferee

under subsection (5). So subsection (6) provides if the applicant or co-

applicants dispute the correctness of the consideration as stated in the notice

under section 23 in the sell deed, the court will inquire into the dispute and

determined the amount of consideration actually paid by the transferee. So

where the amount of consideration is disputed the court is under an obligation

206 40 CWN 1023, 1985 BLD 82 AD. 207 40 CWN 1182.


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to adjudicate on the question of consideration being the amount payable by

the preemptor before making final order as to whether preemption should be

granted or not.208

Order of the court:

It is to be noted that after the conclusion of inquiry into all relevant

issues and if in the meanwhile the further sues determined under subsection

(3) and (6), if any have deposited by the applicants and co-applicants, the court

will make a final order either allowing or disallowing preemption in terms of

subsection(5). If preemption is allowed the court shall direct that the amounts

to the transferee as determined under subsection (3) and (6) be paid to him

out of the deposits. So the court shall order preemption and the transferee

may be ordered to be paid compensation, rent and expenses out of the

deposit.209

Order of appointment:

Subsection (7) empowers the court to make an equitable distribution

and apportionment of the preempted property, i.e. rateable preemption

amongst different applicants, and as a corollary the court will as in partition

suits, apply the principle of maintaining the present possession of the parties

as far as possible.210 Where the preemptor have unequal sharers, it would be

fair to apportion between them such shares of the preempted land as are

proportionate to their respective share in the holding.211 But no

apportionment order under this section shall operates as division of the

holding.212 So rateable distribution cannot be given in the absence of positive

208 59 CWN 939. 209 28 DLR SC;91 SC.29DLR 153H, 38 DLR 265 AD. 210 1941 Cal 481; 35 CWN 1058 211 58 CWN 975 212 1982 BCR 75 HD


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findings in the issues.213 Claim of rateable preempting by the transferee can be

made even in his written objection which he files in traversing preemption

application.214

Effect of the order of Preemption:

Subsection (8) provides that from the date of order, the right, title and

interest accruing to the transferee from date of the transfer, free from

encumbrances annulled. i.e. paid off discharged from encumbrances created

after transfer, vests in the applicant who succeeds.215 So it is the right, title and

interest transferred and not holding which vests216The right, title and interest

accruing to the transferee from the transfer implies the title conveyed by the

transferor including the right to possession. But the rights of transferee, if any,

will remain unaffected.217 So it is the right tile and interest transferred and not

the holding which vests.218 The right, title, and interest acquiring to the

transferee from the transfer implies the tile conveyed by the transferor

including the right to possession. But the right of transferee, if any, will remain

unaffected,219 so it is the right title and interest transferred and not holding

which vests.220 It is to be mention that the transferee acting in the way that

price of land deteriorates e.g by cutting down trees etc, and during pendency

of preemption proceeding, is liable for damage.221 The subsection (8) provides

that on making an order for preemption the liability of transferee for rent on

account of the transfer shall cease. So the transferee remain liable for rent

before such order.

213 1982 BCR 73 HD 214 36 DLR 250H; 1984 BLD 135 H, 38 DLR 265 AD, 21551 CWN 415 216 73 CLJ 529 217 51 CWN 415. 218 73 CLJ 529. 219 51 CWN 415. 220 73 CWN 529 221 39 CWN 459.


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The subsection further prescribed a mode of excursion of such order. It is not

necessary to bring a separate suit for possession.222Clause (iii) of subsection

(8) empower the court to place a successful preemptor in possession only of

the property vested in him.

The word “transferee” in this section includes his successor-in-

interest.223 So the successors -in-interest of the transferee whether by

inheritance or by voluntary transfer i.e. the heirs and subsequent transferees

of the transferee, will be equally bond and affected by the order of preemption

and the right, title and interest of heirs and subsequent transferees of the

original transferee will also vest in preemptor in like manner. The right of

preemptor will also be the subject to the right of preemption of all other co-

sharers in the tenancy who have not yet exercise their right provided their

right to preempt did not suffer from any defect on the score of limitation or

otherwise.224 Again under subsection (8) (iii) the preemptor shall be entitle to

deliver possession through court in execution of the preemption order. So the

clause(iii) of subsection (8) prescribes a mode of execution of such order. It is

not necessary to bring a separate suit.225It it to be noted that so long as the

preemption order, which includes payment of the preemption money to the

transferee, stands, no question of refund of the said preemption money can

arise.226 If the subsequent to the order of preemption it is found that the

transferee had not acquired any right, title and interest in the preempted

property.227 So an order allowing preemption adjudication finally determining

the right of parties as the claim of preemption is a decision formally expressed

by civil court.228 From the ingredients as set out by section 24 it is apparent

222 39 CWN 1024. 223 Vide section 26(1). 224 58 CWN 975. 225 39 CWN 1014; 61 CWN 241. 226 60 CWN 631. 227 56 CWN 775. 228 28 DLR 5 SC.


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that the right of preemption is created by statute, attaches an obligation to a

particular status which binds the purchaser to hand over the property

purchased to the obligee on receiving the price paid by him with

compensation.229

So the preemptor steps into the shoes of the preemptee-transferee and

the order of preemption can only be executed against the transferee or his

successor-in-interest alone and not against anybody230.There being no word of

limitation as to the nature of the transfer which a transfer in the eye of law,

subject to the restriction laid down in subsection (11) of the section 24, is

preemptible. The preemptor in order to succeed must show that he has

interest in the property not only at the time of filing petition but also

Throughout the proceeding.

229 8 DLR 362; 14 DLR 168 DAC. 230 28 DLR 61 AD.

section 24 of the non-agricultural tenancy act, 1949 provides- · an assignment on “preemption...

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