Chatterjee, J.@mdashThis is a petition u/s 115 of the Code of Civil Procedure. The purchasers are the petitioners in a matter relating to pre-
emption u/s 26F of the Bengal Tenancy Act. The opposite Party No. 1 is the pre-emptor. The factual position on the findings of the courts below
is that the purchasers petitioners, the pre-emptor opposite party No. 1 and the vendor amongst others were co-sharers of a holding. It is also clear
that the petitioners got their share in the holding by purchase. The Courts below allowed the application for pre-emption. The question that was
urged in the Courts below was whether the opposite party pre-emptor was a co-sharer of the holding or not. That being the single question, the
Courts answered that question in the positive and allowed pre-emption. As I have stated above, on the findings of the Courts below it cannot be
challenged in this Court that the opposite party No. 1, the pre-emptor, was not a co-sharer of the holding. Therefore, prima facie, it appears that
the application should have been allowed.
2. It has been urged in this Court that the opposite party No. 1 may be a co-sharer, but the transfer was to the petitioners and the petitioners
became co-sharers by purchase. It is urged that ordinarily there is pre-emption by a co-sharer if there is a transfer, but if the transfer is to a co-
sharer, then there is no pre-emption. Again if the transfer is to co-sharers whose existing interest accrued by purchase, even then there would be
pre-emption. It was held in the Courts below that the petitioners purchased their share in the holding in 1953. Therefore, they became co-sharers
by purchase and the result would be again that there would be pre-emption because the transfer would be to persons whose existing interest was
acquired by purchase. If the position rests there, then I have no difficulty in agreeing with the Courts below that the petitioners being co-sharers by
purchase, pre-emption would still be available but there is a further difficulty.
3. By an amendment of the Estates Acquisition Act in 1956, subsequent to this purchase in 1953 the interest of the occupancy raiyats was
declared to be deemed to be that of an intermediary. The result was that u/s 4 of the Estates Acquisition Act the interest of the intermediaries
would vest in the State of West Bengal free from all encumbrances and, therefore, the interest of the tenants as tenants under the then landlord
would cease and the tenancy would cease. Therefore, whatever interest, the parties had, before the vesting under the Estates Acquisition Act,
would be extinguished and the original rights of the parties would be gone. The interest of the petitioners by virtue of their purchase in 1953 (before
the vesting) as co-sharers of the tenancy then existing would cease, but subsequent to such vesting and as a result of such vesting the persons, who
are deemed to be intermediaries, would still be entitled to retain the land and if they retain the land, they would become tenants of a new tenancy
under the State of West Bengal on such terms as the State may prescribe. The terms have now been prescribed under the rules and under the rules
if the land is agricultural, they would retain the land under the State with the right of an occupancy raiyat. Hence, at the date of the application for
pre-emption which was subsequent to the date of vesting or at the date of the transfer in question which was also subsequent to the vesting, the
interest of all the co-sharers in the new tenancy was created not by any act of parties nor by any purchase but by operation of law, namely, the
provisions of the Estates Acquisition Act and the rules thereunder. Therefore, the opposite party No. 1 and the petitioners ceased to be co-sharers
of the original holding but became co-sharers of a new holding under the State of West Bengal.
4. Hence, if the former co-sharers retained their interest in the land and became co-sharers by virtue of the aforesaid Act and the rules thereunder,
the right of pre-emption would accrue because of rule 4 of the Estates Acquisition Rules which attracts section 26F of the Bengal Tenancy Act. In
that view of the matter, I would be inclined to hold that the opposite parties 1-3 not being co-sharers of the new tenancy by purchase but having
become co-sharers by operation of law, they would not be deemed to be co-sharers by purchase within the meaning of section 26F of the Bengal
Tenancy Act, but they would simply be considered to be co-sharers otherwise than by purchase and in that case there would be no preemption.
5. But this legal aspect depends upon a factual aspect which has not been enquired into -- it may be that since the acquisition of the estate by the
State of West Bengal, the State of West Bengal have recognised the purchasers, the pre-emptor as holding under the State under different rights
and under different tenancies or, in other words, if the property held by the petitioners 1-3, has now been constituted as a separate holding, then
there would be no question of pre-emption so far as these petitioners are concerned and in that case also there would be no pre-emption. The
result, therefore, is if the State has now recognised different tenancies one in favour of the pre-emptor and another in favour of the purchasers,
there would be no pre-emption. Again even if the State have recognised the purchasers and the opposite party No. 1 as co-sharers of newly
formed holding, even then the petitioners purchasers, not being co-sharers by purchase, would still be beyond the mischief of section 26F.
Therefore, whatever may be the factual position, the legal position remains the same i.e., there is no right of pre-emption. The learned Advocate for
the opposite party No. 1 raised a further plea that section 52 of the Estates Acquisition Act was not intra vires. I find nothing to support it. He has
referred to two decisions of the Supreme Court reported in (1) Purushothaman Nambudiri Vs. The State of Kerala, and (2) Karimbil Kunhikoman
Vs. State of Kerala, in the latter it was held that certain interests in Kerala were not considered to be an estate within the meaning of Article 31A
of the Constitution read with the law of the State concerned. Wanchoo, J. held that the word ''estate'' had a particular meaning and then found that
the interest of Ryotwari Pattadars were not that of an estate within the meaning of the law for the State of Kerala. In the former decision the
Supreme Court held that in permanent settled States there is a particular meaning given to the word ''estate'' but in other States where there is no
definition of the word ''estate'' the word ''estate'' would be deemed to include those interests of persons who are in the position of actual
proprietors of the soil. The result of these two decisions is, persons who hold interest in the land but who are not actual proprietors of the soil,
cannot be said to hold an ""estate"" and therefore their interest in the property of Ryotwari Pattadars will not be an estate within the meaning of
Article 31A of the Constitution. There is no doubt, so far as West Bengal is concerned, that the word ''Estate'' refers to the actual proprietors of
the soil, persons with whom the property was settled by the Permanent Settlement Regulation. Hence, there is absolutely no doubt that the
occupancy raiyats in West Bengal do not hold any estate, but their right is that of an interest in relation to an estate, because the interest of
occupancy raiyats is curved out of an estate or out of a term under an estate whereas in Kerala the interest of Raiatwari Pattaders was not curved
out of the interest of any actual proprietor of the soil. The grant was a direct one by the State to certain persons on payment of revenue and these
Pattadars did not occupy the position of actual proprietors of the soil. Das Gupta, J. of the Supreme Court in a case between (3) State of Bihar v.
Ramswaran Pratap, reported in 1961 S.C.R. 1649 has considered the matter with reference to Melas in Bihar and he has found that the principles
of the relevant Act of the Bihar Land Reforms Act are not ultra vires. I have no hesitation in holding that section 52 is not ultra vires. Clearly the
right of an occupancy raiyat in Bengal is a right curved out of an estate. Therefore, this right is in relation to an estate. This argument of the learned
Advocate for the opposite party No. 1 must be overruled.
6. The result is that the orders of the Courts below are set aside. The Rule is made absolute. In the circumstances of this case, each party will bear
his costs throughout.