Appellate Division Cases
(Civil)
PARTIES
Fatema Khatun being dead her heirs Habibur Rahman and others…….Appellants
Vs
Andul Quddus………………………………………………………………Respondent
JUSTICE
Md. Ruhul Amin J
M. M. Ruhul Amin J
Date of Judgment
21st November 2005
The State Acquisition and Tenancy Act, 1950( SAT)(East Bangle XXXVIII of 1951), Section 10(C), 96.
The Transfer of Property Act (IV of 1882), Section 54.
The Bengal Tenancy Act, 1885 Section 26F.
The Registration Act 1973, Section 60.
Ahmed Hossain Vs. Basharat AH in 32 DLR (AD) 54. Dukhiram Mondai Vs. Aminuddin Molla in 14 DLR, 168. Noab Mian Bhuiyan Vs. Golam Hossain in 13 DLR. 889.
The co-sharer of the holding land of which sought to be pre-empted and as such the prayer for pre-emption.
Pre-emptee is a co-sharer in the holding land of which has been sought to be preempted and that as the transfer is being made in lieu of dower money as such the said transaction is not pre-emptable………………………………………………………………(5)
Civil Appeal No. 253 of 2001
(From the Judgment and Order dated June 28. 2000 passed by the Hinh Court Division in Civil Revision No. 1722 of 1993)
Right of pre-emption can not be defeated by a person who was not a co-sharer on the date of the transfer but subsequently alleged to have become a co-sharer. (7)
A transfer by Muhmmadan husband to his wife in lieu of dower-debt is sale and in some cases held Heba-bil-ewaz (18)
In case of claim for pre-emption the document shall take effect from the date of registration and not from the date of execution.that the date of accrual of the right of pre-emption is not the date of execution of the deed of sale or any earlier date but the date when the deed of sale is registered and the title effectively passes (23)
ADVOCATES
A. H. Amin, Advocate-on-Re cord., For the Appellants .Nazibar Rahman, (appeared with the leave of the Court) instructed by Firoj Sliaha, Advocate-on-re cord For the Respondent
JUDGMENT
Md. Ruhul Amin J :- The appeal is by the heirs of the pre emptee against the judgment dated June 28, 2000 of the High Court Division in Civil Revision No. 1722 of 1993 making the Rule absolute upon reversing the judgment and order dated June, 9, 1993 of the court of Additional District Judge, Dinajpur in Appeal No. 41 of 1989 affirming the Judgment and order dated April 30, 1989 of the Court of Assistant Judge, Chirirbandar, Dinajpur in Miscellaneous Case No. 1 of 1989 (filed under section 96 of the State Acquisition and Tenancy Act, 1950) dismissing the same.
2. The Miscellaneous case was filed seeking preemption of the transfer made by the deed executed on May 28, 1988 and presented for registration on May 28, 1988 and registered as per provision of section 60 of the Registration Act on 15.10.1988 claiming to be a co-sharer of the holding land of which was transferred by the aforesaid deed and contending that the transferee Fatema Khatun, wife of Babor AH is a stranger purchaser in the holding.
3. The transferor Babor Ali made the transaction in favour of his wife Fatema Khatun by the deed executed and presented for registration on 28.5.1988 and said Babor Ali died on June 7, 1988 and the deed in question was registered as per provision of section 60 of the Registration Act on October 15. 1988 and the Miscellaneous case was filed on January 2, 1989.
4. In the background of the aforesaid facts it was contended by the pre emptee Fatema Khatun, that the transfer in qestion was made in lieu of the dowerm money TK. 37,000/- and that the transfer being discharge of the dower-debt the same was valued at TK. 1,000/- . It was also the contention of the pre-emptee that on the death of her husband Babor Ali as she has become the co-sharer of the holding land of which sought to be pre empted and as such the prayer for pre emption is liable to be rejected.
5. The trial Court dismissed the Miscellaneous case on the finding that the pre emptee is a co-sharer in the holding land of which has been sought to be preempted and that as the transfer is being made in lieu of dower money as such the said transaction is not pre-emptable.
6. The pre-emptor went on appeal and the appellate Court affirmed the judgment and order of the trial Court on the finding that pre-emptee having became the co-sharer of the holding on the death of her husband Babor Ali prior to the filing of the i.Miscellaneous case, the prayer for pre-emption is not sustainable in law.
7. The pre-emptor moved the High Court Division as against the judgment of the appellate Court in revisional jurisdiction and obtained the Rule. The High Court Division made the Rule absolute on the finding that “right of pre-emption can not be defeated by a person who was not a cosharer on the date of the transfer but subsequently alleged to have become a co-sharer “and as such the courts below were in error in holding that the pre-emptor was not ntitled to preempt a co sharer on the death of her husband who transferred the land sought to be pre-empted to her. It appears that after the death of Babor Ali he preemptee Fatema Khatun was married to certain Habibur Rahman and at the time of moving the revisional application said Fatema Khatun having died her husband Habibur Rahman, two sons one is of Babor Ali and the other is of Habibur Rahman and a daughter of Babor Ali were impleaded as the pre-emptee opposite parties.
8. As against the judgment of the High Court Division Habibur Rahman and his son filed the petition for leave to appeal and leave was obtained for consideration of the contentions whether the Miscellaneous case filed on 2.1.1989 was liable to be dismissed under the circumstances that the pre emptee Fatema Khatun became also a coshare by inheritance in the land of the holding on the death of her vendor husband Babor Ali on June 7, 1988 and whether Miscellaneous case was liable to be dismissed under sub-section 10(c) of Section 96 of the State Acquisition and Tenancy Act, 1950 (SAT Act) considering the low amount of price in the sale deed as a deed of Heba-bil ewaz for non-pecuniary consideration in favour of wife as being obviously in lieu of dower money combined with love and affection.
9. In the kabala in question there is recital as to the background of fact whereof the transfer was made. In the kabala the circumstances that necessitated the transfer by Babor Ali to his wife Fatemea Khatun has been stated as”………………………BANGLA………………………………………………. ” There is also recital in the kabala that the same has been executed for the purpose of discharging the obligation of payment of dower-debt.
10. For our purpose provision of Section 96(1) of the SAT Act, where under Miscellaneous case was filed, is relevant. The said provision reads as: “96(1): If a portion or share of a holding of raiyat is transferred one or more co-sharer tenants of the holding may, within four months of the service of the notice given under section 89, or, if no notice has been served under section 89, wthin four months of the date of the knowledge of the transfer, apply to the Court for the said portion or share to be transferred to himself or themselves; and if a holding or a portion or a share of a holding is transferred, the tenant or tenants holding land contiguous to the land transferred may, within 4 months of the date of the knowledge of such transfer, apply to the Court for the holding or portion or share to be transferred to himself or themselves”.
11. Proviso to the sub-section is not relevant for the disposal of the appeal.
12. On reading of the provision of subsection (I) of section 96 of the SAT Act it is seen that right of pre-emption is available to one or more co-sharers of the holding when land of the holding is transferred to stranger. The co-sharer or co-sharers so mentioned in the sub-section is/are to be one who is/are con sharer (s) on the date of transfer on whom as per provision of section 89 of the SAT Act notice is required to be served.
13. As seen earlier that Court of first instance and the appellate Court rejected the prayer for pre-emption on the finding that the pre-emptee became a co- sharer of the holding prior to the filing of the Miscellaneous case on the death of her vendor-husband. As against that High Court Division allowed the prayer for pre emption on the finding that right of pre-emption cannot be defeated by a person who was not a co-sharer at the time of transfer but later on became co sharer on the death of the vendor (herein husband) or in the background of some other situation. 266 Fatema Khatun ors. vs Abdul Quddus (Md. Ruhul Amin J) ADC (2006)
14. The learned Advocate-on-Record in support of the appeal contended that as the right of pre-emption accrues on the registration of the document upon compliance of the provision of section 60 of the Registration Act and that in the instant case the pre-emptee having had became co sharer on June 7 1988 prior to the registration of the document as per provision of section 60 of the Registration Act on 15.10.1988 and Y the Miscellaneous case having been filed on 2.1.1989 the High Court Division was in error in allowing the prayer for pre cmption on the finding as the pre-emptee was not a co sharer on the date of transfer but became a co sharer subsequently. It was also contended on behalf of the appellant that the transaction was not a sale but discharge of the obligation and as such is covered by the exception as in section 96 (10)(c) of the SAT Act. The Provision of section 96 (10(c) of the SAT Act reads as follows.”Section 96(10)(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 or the testator or donor, or of any relation by consanguinity within three degrees of the testator or donor”
15. From the aforesaid provision it is seen that a transaction which is a Heba-bilewaz has not been made outside the ambit of pre emption . It is seen in the deed in questin that the same was made for discharging the dowe-debt. There is also recital in the kabala in question that the dower remained unpaid at the time of marriage and that the wife Fatema Khatun, the pre-emptee, claimed the dower money and thereupon Babor Ali, the husband of the pre-emptee, transferred the land sought to be pre-empted.
16. As against the contentions of the appellant the learned Advocate, appeared with the leave of the court, submitted that prayer for pre-emption can be made by a person who is a co-sharer of the holding on the date of transfer or in other words prayer for pre emption can be opposed by a person who is a co-sharer of the holding on the date of transfer, but not be a person who becomes a co-sharer at a time subsequent to the date of transfer. It was also the contention of the learned Advocate that the transaction was an out and out sale in the background of the expressions.
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17. The question whether a transfer by a muhammadan husband to his wife in lieu of dower-debt is sale and as such is premetable came up for consideration in the case of Musammat Saiful Bibi vs. Abdul Aziz Khan reported in 133 Indian cases, 901 (same case has also been reported in AIR 1932 Allahabad 596) where in it has been held ” A transfer of property in lieu of an existing debt in cash would be transfer for a price paid so as to bring it within section 54 of the Transfer of Property Act that a dower-debt is a debt like every other debt, and therefore, a transfer in lieu of it must be a sale as defined in that section”. The aforesaid decision was made in a case wherein pre emption was sought but opposed contending that the transaction was a Heba-bil-ewaz and not a sale at all. As has been seen earlier as per provision of section 96 (10)(c) of the SAT Act Heba-bilewaz j is not out of the ambit of pre-emption. Previous to the decision referred to above it was held in the case reported in 13. C. W. N. 160, that transfer of immovable property by a muhammad an to his wife purporting to be made in consideration of a dower debt is a sale and is governed by the provisions of section 54 of the Transfer of Property Act. In the case of Mohammad Zaki Khan and others vs. Munnu Sahu and another reported in AIR 1925 Oudh, 407 it was held “Where the transfer of property is made in lieu of a sum of money, whether the money is paid in cash or by the estimation of a dower-debt, the transaction comes within the definition of sale in section 54 which is applicable to a transaction between Moahomedans”. In the case of Ghulam Abbas vs. Mt. Razia Begum and others reported in AIR 1951 Allahabad, 86 (FB) it has been observed ” The use of the word “price” instead of “money” in section 54 signifies that the word is wide enough to include any amount which can be definitely ascertained and worked out in terms of money, such as outstanding debts.” (The above observation is referable to the provision of section 54 of the Transfer of Property Act). It has further been observed “The dower due to a Muslim wife is a debt-it has been so recorded even under the muhammadan Law; consequently, if the amount of dower is ascertained and the transfer is made in lieu thereof, the transfer would be for a price. A transfer, therefore, of immovable property in consideration of a dower-deft which is a Hiba-bil-ewaz, under the Muhammadan Law, having all the legal incidents of a sale, falls within the purview of S. 54, T. P. Act” It may be mentioned in the present case the dower debt was an ascertained amount of Tk. 37,000/- and it was claimed by the pre-emptee that for dis* charge of the dower debt of the aforesaid amount the transfer was made in’ her favour by her husband. It is seen from the deed in question that therein an amount of TK. 1,000/- has been mentioned and it has been stated in the kabala that the said amount has been put in the document for registration purpose i. e to lessen the costs of registration. There is another line of decisions where in has been viewed that a transfer by a Muhammad an husband to his wife in lieu her dowr debt is Hcba-bil-ewaz and not a sale. It may be mentioned as per provision of section 96(10) of the SAT Act a transaction which is a Heba-bil-ewaz is not out of the ambit of pre-emption.
18. So it is seen that the preponderance of the judicial view is that a transfer by Muhmmadan husband to his wife in lieu of dower-debt is sale and in some cases held Heba-bil-ewaz. In the instant case from the construction of the document in question it can be viewed that the transfer has been made by Babor Ali, husband, to his wife Fatema Khatun in lieu of her dower-debt. The transaction so made by Babor Ali as is a sale, the same certainly subject to preemption since Fatema Khatun was a stranger transferee in the holding. Even if appellant’s contention is accepted that the transaction was a Heba-bil-ewaz, then too because of the provision of Section 96 (10) of the SAT Act the transaction is subject to pre-emption.
19. It has been contended on behalf of the appellant that pre-emption case was’not maintainable since in between the stage of presentation of the document for registration and registration thereof (presented for registration on May 28, 1988 and the document was registered on October 15.1988)Vender Babor Ali having had died on June 7, 1988, Fatema Khatun, the preemptee, became co sharer in the holding since by the transfer in question to Fatema Khatun, Babor Ali did not exhaust his interest in the holding and the Miscellaneous case having been filed on 2.1.1989.
20. The admitted position is that on the date of execution of the deed and presentation thereof for registration. Fatema Khatun was not a co-sharer in the holding land of which sought to be pre empted. It was also the contention of the appellant that right of pre-emption having had accrued on the registration of a document under section 60 of the Registration Act, to Fatema Khatun and that also on the death of Babor Ali on June7, 1988 she having had became a co- sharer in the holding, as such Miscellaneous case filed on 2.1.1989 by a co-sharer against another co-sharcr (Fatema Khatun) as was not maintainable the High Court Division was in serious error in allowing the prayer for pre-emption upon setting aside the concurrent judgment of the Courts below.
21. The learned Advocate-on-record for the appellant in support of the above contentions has referred to the case of Muhammad Meherali Mondal vs. Muhammad Karam Ali Sarkar reported in 17 DLR, 365. In the reported case pre-emption was sought under section 26F of the Bengal Tenancy Act, 1885. The pre-emption was sought by a non- notified co sharer. The question of limitation in seeking pre-emption by non-notified co-sharer was the prime point of consideration in the case and in that state of the matter it has been observed ‘”we have thus no hesitation to hold that the right of a non notified co-sharer tenant to apply under Section 26F of the Bengal Tenancy Act accrues only upon registration of the deed of transfer”. In the said decision in inteipreting the provision of section 60 of the Registration Act it has been observed “language of the section 60 admits of no doubt that it is the certificate in compliance with the provision of this section that makes a document, a registered document. The document cannot be regarded as registered before the certificate is endorsed thereon and signed, sealed and dated in terms of section 60, nor has it to wait for acquiring the character of a registered document till after compliance with the other provisions that follow section 60.”
22. The learned Advocate-on-record has also referred us to the case of Abdur Rahman Vs. Baser Ali and others reported in 21 DLR, 599. In the reported case preemption was sought under section 96 of the State Acquisition and Tenancy. The facts of the case, in short, is that Miscellaneous cases were filed: one on the basis of kabala executed on February 2, 1959, presented for registration on April 30, 1959 and registered on August 2, 1965, the other document executed on 10.3.1961 and registered on 28.3.1961. The holder of the document of the year 1961 sought to pre-empt the transfer made by the document registered on August 2, 1965. The holder of the documet registered ton August 2, 1965 sought to pre-empt the transfer made by the document registered on March 28,1961. It was the contention of the holder of the document registered on August 2, 1965 that cosharer ship would become effective from the date of execution of the kabala. The point that came up for consideration and decision in the case was: whether right of pre-emption available with reference to the date of registration of the deed of transfer under pre-emption or with reference to the date of execution of the deed of transfer under pre-emption.
23. It has also been observed “There is preponderance of decisions that in case of claim for pre-emption the document shall take effect from the date of registration and not from the date of execution that the date of accrual of the right of pre-emption is not the date of execution of the deed of sale or any earlier date but the date when the deed of sale is registered and the title effectively passes.” The learned Advocate-onrecord has also referred to the case of Ashutosh Mali and others Vs. Shamsunnahar and others reported in 33 p- DLR, 254. In this case pre-emption was ought as it appears from the facts of the case by a non-notified co sharer. The Miscellaneous case was filed on May 16,1966 seeking pre-emption in respect of the transfer which was made by the kabala dated January 18,1963 (date of execution) and registered on March 13,1966. In opposingthe prayer for pre emption amongst others it was contended that right of pre-emption accrued from the date of registration of the document and that after its registration, it will take effect from the date of execution.
24. In the background of the said contention it was observed ” In case of transfer,the date on which the transfer takes effect is the date of instrument and not the date of registration but in case of pre-emption thedate of registration gives rise to the accrual of the right of pre-emption”. The aforesaid observation was made in the context of point for determination of the status of the class of tenancy i. e. whether the status of tenancy would be governed by the provision of section 26F of the Bengal Tenancy Act or by the provisions in part V of the State Acquisition and Tenancy Act since by the time the document was registered Part V of the State Acquisition and Tenancy Actcame into operation and it was held’that the status of the tenancy “would be governed by the law applicable at that time”.
25. The learned Advocate-on-record lastly referred us to the case of Ahmed Hossain and others vs. Basharat Ali and others reported in 32 DLR (AD) 54, wherein it has been observed “A citizen’s right to deal with his property freely, in view of the special statutory provision, bears a clog, this is, subject to right of pre-emption. 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 a claimant in consideration of his necessity and not as a matter of luxury. This principle should always be kept in view while determining the claim of pre-emption”. It may be mentioned in the reported case pre-emption was sought by a contiguous land holder under section 96(1) of the SAT Act. It appears that aforesaid observation has been made in the background of the said fact. 26. In the case of Dukhiram Mondal Vs. Aminuddin Molla and others reported in 14DLR, 168 it has been observec “it is a prerequisite condition that for the purpose of an application under sub-section (1) of section 26F of the Act the applicant must show that he was a co sharer tenant entitle to get notice in terms of section 26C of the Act at the time when the registration of the kabala in question took place the expression “any of the remaining co sharer tenants” as used in sub-section (4) (a) of section 26F of the Act refers torn such co-sharer tenants as indicated in sub-section (4) of section 26C of the Act.” (the pre-emption was sought under the provisions of Bengal Tenancy Act, 1885) . So it is seen from the aforesaid observation that a prayer for pre-emption can be made by a tenant who is entitled to get notice in terms of the provision of section 26F of the Act. In the instant case as per provision of section 96 (1) of the SAT Act provision of serving notice of the transfer similar to the provision of section 26(C)(4) of Bengal Tenancy Act has been made. The question of limitation in the case of prayer of for pre-emption made by a non-notified co-sharer came up for consideration in the case of Noab Mian Bhuiyan Vs. golam Hossain reported in 13 DLR, 889. In the reported case application seeking preemption was filed on 8.12.1959 in respect of the transfer that took place by the deed dated November 6, 1956, which was registered on 1st of January, 1957. The pre-emptor was a non-notified co-sharer. In the background of the aforesaid fact while examining the question of limitation it was observed ” The transfer in question, was compulsorily registrable and that being the position it cannot be doubted that the disputed transfer was not complete until registration was effected. It follows, therefore, that the pre-emtpor’s right to apply for pre emption could not accrue before registration took place that the right of a co-sharer to apply for pre emption in respect of any transfer cannot and does not accrue until the document of transfer is registered”. The aforesaid observation has been made as stated hereinbefore in addressing the contention made by the pre emptee that the Miscellaneous case was barred by limitation.
27. It thus appears from the ratio of the aforementioned decisions that right of non-notified co-sharer to exercise the right of pre-emption as provides in section 96 (1) of the SAT Act would arise from the date of registration of the document under section 60 of the Reg>stration Act and the period of limitation in a case filed by a non notified co sharer seeking pre emption of the transaction would be counted from the date of registration of the document since the same would be considered a notice to be person interested to seek pre-emption under section 96 (1) of the SAT Act.
28. In the instant case it is the case of the pre emptee that before registration of the document she became a co-sharer i. e. On the death of her husband on 7.8.1988 in the holding land of which was transferred by the deed which was presented for registration on May 2, 1988 and registered on October 15, 1988 and that on the date of filing of the Miscellaneous case on January 2, 1989 as she was a co-sharer the Miscellaneous case was not maintainable. In repelling the aforesaid contention of the pre emptee, the learned counsel for the Respondent has submitted that one who was not a co sharer on the date of transfer i. e. on May 28, 1988 when the transfer deed was presented for registration and that on that date as the pre emptee being not a cosharer in the holding was not entitled to have the notice of the transfer as in section 96 (1) of the SAT Act as per provision of sub-section 96 (1) of the Sat Act as per provision of sub-section 4 of section 89 of the SAT Act, the pre-emptee was not entitled to oppose the prayer for pre-emption claiming to be a co-sharer in the holding portion or share whereof was transferred by her husband, Babor Ah to her, a stranger in the holding. The learned Advocate also submitted that only a tenant who was a co-sharer on the date of transfer can oppose the prayer for pre-emption of another co -sharer, but by one who was not a co sharer tenant on the date of transfer claiming to have become a co^sharer in the holding subsequent to the transfer of the land of said holding. The learned Advocate further submitted that a co-sharer tenant of a holding who was entitles to notice of transfer would only be entitled to oppose the prayer for pre-emption and no other person or in other words not by a person who has become co-sharer subsequent to the date on which deed of transfer was presented for registration before the sub-Registrar.
29. In support of the aofresaid contention the learned Advocate has referred us to the case of Abdul Baten Vs. Abdul Latif Shekh and others reported in 45 DLR (AD) 26. Wherein it has been observed ” If a preemptee is not a co-sharer at the time of transfer or at the lime of the institution of pre-emption proceeding, as in the present case, and if he becomes a co-sharer in the case holding during the pendency of the pre-emption proceeding, as also in the present case, he does not become a transferee to a co-sharer either at the time of transfer or at the time of institution of the pre emption proceeding. The right of pre-emption accrued to the pre-emptor is not affected by the subsequent acquisition of co sharer ship by the pre-emptee.”
30. Aforesaid observation was made in the background of the fact that the preemptee got the land from his aunt by way of gift by a registered document dated 2.10.1980. The pre-emptor sought for pre emption by imitating Miscellaneous Case No. 17 of 1981 of the land which the preemptee got by the aforementioned registered deed of gift. The pre-emption was sought upon asserting that the pre-emptee was not a co-sharer in the case holding and the deed of gift is pre-emptable since same is not covered by the provision of section 96 (1) of the SAT Act. The prayer for preemption was opposed contending that preemptee’s father died during the pendency of the proceeding and thereby pre-emptee has become a co-sharer in the case holding. So it is seen from the ratio of the aforesaid decision that one who becomes a co-sharer in holding land of which sought to be preempted subsequent to the transfer or during the pendency of the Miscellaneous case filed seeking pre-emption is not a co-sharer as contemplates by the provision of section 96(1) of the SAT Act.
31. The proposition of law, as seen from the judicial pronouncements taht right of pre-emption accrues after the registration of the instrument of transfer as per provision of section 60 of the Registration Act, 1908 is limited to the category of the case filed by a non notified co-sharer, who as per provision of section 89(4) of SAT Act, 1950 or Section 26c(4) of Bengal Tenancy Act, 1885 being a co-sharer of the holding, land of which transferred by the kabala sought to be pre-empted, ought to have been notified about the transfer but was not notified or did not receive the notice, seeking pre-emption and the question of limitation comes for consideration. It appears from the trend of judicial pronouncements that completion of registration of a deed as per provision of Section 60 of the Registration Act is a notice in general as well as to one who was not notified of the transfer but interested in seeking preemption of the transfer made to a person who is a stranger in the holding or in other words the transfer sought to be pre-empted has been made without notifying the co-sharer of the holding to a person who is not a cosharer of the holding on the date of transfer and was not entitled to notice of transfer.
32. As per provision of section 89 of SAT Act transfer i.e. sale is to be made by registered instrument and taht such transfer is to be notified. Provision of section 96(1) of the SAT Act contemplates taht in case of transfer i.e. sale of portion or share of a be notified of the transfer as per provision of section 89 of the SAT Act and a co-sharer of the holding would be entitled to seek pre-emption of such transfer within four months from the service of notice or in case of non-notified co- sharer within four months from the date of knowledge of the transfer. The service of notice of the transfer as contemplates in section 89(4) and section 96(1) of the SAT Act is limited to the co-sharer(s) of the holding, land of which has been transferred, on the date of transfer i.e. on the date on which deed of sale, Heba-bil-ewaz or any other document of the nature of sale deed is presented before the sub-Registrar for registration. The language of section 89(4) and section 96(1) of the SAT Act is explicit that notice is to be served on the co-sharer (s) of the holding on the date of presentation of the deed for registration and only such co-sharer (s) is competent or entitle to seek preemption.
33. The above being the position of law, one who acquires co-sharer ship subsequent to the date of notice of transfer or one who becomes a co-sharer in the holding on a date later to the date of presentation of the deed of transfer for registration and sought to be pre-empted is not competent to oppose pre-emption, one who becomes a co-sharer in the holding subsequent to the notice as contemplates by section 96(1) of the SAT Act or in other words one who becomes a co-sharer in the holding on a date which is other than the date of presentation of the sale deed for registration before the sub-Registrar, i.e. on a date later to the date of presentation of the sale deed for registration, one who is one of the person of such category is no doubt a co-sharer pre-empted but one as has acquired co-sharership subsequent to the date of presentation of the sale deed sought to be pre-empted is not entitle to oppose pre-emption contending taht one has become co-sharer before registration of the sale deed under section 60 of the Registration Act or before the filing of the case seeking pre-emption or that subsequent to the filing of case seeking pre-emption. The said proposition of law has been laid down by this Division in the case reported in 45 DLR(AD)26. In the background of the discussions made hereinbefore we find no merit in the appeal.
Accordingly the appeal is dismissed without any order as to cost.
Sourcr: III ADC (2006) 263.