Jerafat Mondal vs Kamrezvan Bibi

Renupada Mukherjee, J.—These five Rules were issued at the instance of the Petitioners and they are directed against an order of the District Judge of Birbhum passed on February 2, 1952, whereby he dismissed five appeals taken before him by the present Petitioners against an order of the Munsif, first court, Rampurhat, dated September 17, 1951. By the last mentioned order the Munsif of Rampurhat dismissed five applications u/s 26F of the Bengal Tenancy Act which were tried analogously and which had been filed before him by the Petitioners of the five cases now heard by me. The following facts may be stated for the purpose of understanding the point in controversy between the parties.

Hedat Mondal, opposite party No. 2 in all the cases, executed a hebd-bil-ewaj in favour of his grand-daughter Kamrezvan Bibi, opposite party No. 1, in all these cases, on Baisakh 25, 1358 B.S. (May 9, 1951). The document was executed for a consideration of Rs. 7 which was given in the shape of one jainamaj valued at Rs. 4-8 and one tasbi (a string of beads) valued at Rs. 2-8. The properties covered by the heba-bil-ewaj comprised some occupancy raiyati holdings in which the Petitioners of these cases were co-sharers along with Hedat Mandal, the executant of the heba-bil-ewaj. After the transfer the Petitioners launched five pre-emption proceedings u/s 26F of the Bengal Tenancy Act in the first court of the Munsif of Rampurhat upon depositing in each case, the proportionate value of the properties transferred under the heba-bil-ewaj together with the statutory- compensation. All the cases were tried analogously by the Munsif who dismissed the applications on the ground that they were not maintainable. This finding of the Munsif was upheld by the learned District Judge, though on a somewhat different ground and so the Petitioners have come up in revision.

The document of heba-bil-ewaj which forms the basis of the pre-emption applications was marked Ex. B in the trial court. First of all, I shall address myself to the question whether the construction put by the lower appellate court upon this document is correct. That court seems to be of opinion that the document is not really a heba-bil-ewaj but it is a gift which was executed by the grand-father in favour of his grand-daughter out of love and affection in order to make some provision for the maintenance and residence of the grand-daughter. On a perusal of the document I am clearly of opinion that this construction put upon the document is wholly unwarranted. Not only has the document been mentioned at several places as a heba-bil-ewaj but it has clearly been stated that the properties were given to the grand-daughter in exchange for one Jainamaj valued at Rs. 4-8 and a string of tasbi valued at Rs. 2-8. There is, therefore, no reason for construing the document as a heba and not a heba-bil-ewaj. The construction put upon the document by the lower appellate court being clearly wrong, I hold that the document was, as it purports to be on the face of it, a heba-hil-ewaj and nothing more or less.

It was contended by Mr. Lala appearing on behalf of the Petitioners that the document being a heba-bil-ewaj, the Petitioners were within their rights in claiming pre-emption u/s 26F of the Bengal Tenancy Act and that the courts below were not justified in holding ''that no pre-emption application was maintainable on the basis of such a document. I have already observed that the reasons given by the lower appellate court for holding that the pre-empting applications are not maintainable on the basis of this document, are incorrect. I shall presently consider whether the reasons given by the trial court for holding that no pre-emption application can be maintained on this document are correct. In this connection it will be necessary to quote the following portion of Section 26F of the Bengal Tenancy Act:

(1) Except in the case of�

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

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One or more co-sharer tenants of the holding, a portion or share of which is transferred, may within four months of the service of the notice u/s 26C, apply to the court for the said portion or share to be transferred to himself or themselves.

Mr. Lala contended on behalf of the Petitioners that a preemption application is not maintainable where a deed of gift which includes a heba has been executed, but such an application is maintainable where the document is heba-bil-ewaj, because a heba-bil-ewaj is essentially a sale according to Mahomedan law. On a reading of Clause (c) of Section 26F(2) of the Bengal Tenancy Act it will appear that although a deed of heba has been excluded from the operation of pre-emption under the above section, a heba-bil-ewaj has expressly been subjected to the operation of pre-emption.

Mr. Burman, appearing on behalf of the opposite parties", contended before me that only heba-bil-ewaj of a limited class has been so subjected to pre-emption, viz., where the consideration is pecuniary, but where the consideration for a heba-bil-ewaj is other than money, viz., a book or a string of bead or a carpet, the document would not be hit by the law of pre-emption. In the present case the considerations were a jainamaj (a carpet) and a string; of tashi (beads), the consideration on the face of it was not money. Mr. Burman laid some emphasis on the word "pecuniary'''' appearing within brackets in Clause (e) of Sub-section (1) of Section 26F of the Bengal Tenancy Act. After carefully reading the section I am of opinion that this interpretation put upon the section by Mr. Burman which apparently was the interpretation accepted by the Munsif, is not a reasonable or proper interpretation. There is no reason for placing such a limited or narrow meaning upon the word "pecuniary". In fact, the only word appearing within the brackets in Sub-section (e) which requires any stress is the word "airy" to make it clear that heba-bil-ewaj should be regarded as a sale, whatever might be the value given in exchange for the property transferred. It would also be somewhat odd to say that the legislature intended to make only such documents of heba-bil-ewaj subject to the law of preemption as are executed for cash money consideration and not for consideration in other shapes such as a Quoran Sarif, a string of beads or a carpet. There would absolutely be no sense in making such a distinction. I am of opinion that the expression "any "pecuniary consideration" occurring in Sub-section (e) of Section 26F(1) of the Bengal Tenancy Act includes and connotes all consideration either in the shape of cash money or other material thing having a pecuniary ''value. It is also worth mentioning that in the document we are dealing with, the price of the two articles which were given in exchange by the recipient of the document was mentioned as Rs. 4-8 and Rs. 2-8. In these circumstances, I hold that the document is really a heba-bil-ewaj for a pecuniary consideration and so it is not exempted from the operation of pre-emption as provided in Section 26F(1)(e) of the Bengal Tenancy Act. To my mind the learned Munsif was wrong in refusing to exercise his jurisdiction and to decide the applications on the merits. The lower appellate court''s judgment which affirmed the judgment of the Munsif, although on a somewhat different ground, is also wrong.

It was contended by Mr. Burman on behalf of the opposite party that although the courts below committed an error in construing the heba-bil-ewaj, this Court should not interfere in revision. I cannot agree with this contention because the trial court has refused to exercise jurisdiction on the wrong construction of a document although such jurisdiction was vested in him by law. There is good ground for interference.

In the result, the Rules are made absolute. The orders of the courts below are hereby set aside and the Munsif is directed to decide the applications on merits and in accordance with law, it being held by this Court that the applications are maintainable in law. The Munsif will dispose of the applications on the evidence which is already on the record.

Costs of the courts below will abide the result of the Applications. The Petitioners will get costs of this Court from the opposite party, hearing fee being assessed at four gold mohurs which will be distributed equally in all the cases.