LEX/BDHC/0039/1997

Equivalent/Neutral Citation: 49 DLR (1997) 477

IN THE SUPREME COURT OF BANGLADESH

(HIGH COURT DIVISION)
Civil Revision No. 3262 of 1993
Decided On: 12.06.1997
Solaiman Ali Sheikh (Md) and others Vs. Abu Bakar Siddique Sheikh and others
Hon'ble Judges/Coram:
Abu Sayeed Ahammed, J.
Counsels:
For Appellant/Petitioner/Plaintiff: AHM Ziauddin, Advocate
For Respondents/Defendant: ANM Gaziul Hoq, Advocate with Zafar Ahmed, Advocate
JUDGMENT
Abu Sayeed Ahammed, J.
1 . The litigation is under section 96 of the State Acquisition and Tenancy Act for pre-
emption. Goribullah Sk was the original owner of the case holding. He left only son Mir
Boksha and a daughter Jilaton. Jilatun left her husband opposite party 16, full brother
Mir Box and three daughters, Rezia Khatun, petitioner No. 2, Santonessa, opposite party
17 and another daughter Champa who pre-deceased her husband the opposite party 18
and five sons who are the petitioner No. 1 Abu Baker Siddique and opposite parties 19-
22, and only daughter opposite party 23.
2 . Opposite parties 8, 10-15 transferred the case land measuring 2.32 acres on 28-2-
1990 by way of heba-bil-ewaz in lieu of a copy of the Holy Quran as consideration to
the opposite parties 1-7, who are strangers in the case holding, by a registered kabala
and hence the case. It is worth to note that the case land is situated in the district of
Sirajgonj and the preemptors and opposite parties all are inhabitants of the district of
Bogra. So, the pre-emptee purchasers did not get possession of the suit land after the
alleged gift made to them. Purchasers pre-emptee opposite parties 1-7 contested by
filing a written objection. This specific case is that Mir Box died leaving his widow
opposite party No. 24 and his paternal cousin Korban Ali opposite party No. 8 and some
distant kindreds. The purchasers claim that they are also co-sharers in the holding and
that the transfer is a Hiba-bil-ewaz against a piece of the Holy Quran. So pre-emption
case can not be allowed.
3. Both the courts below allowed the pre-emption holding that the opposite parties 1-7
purchasers pre-emptees are strangers in the case khatian and the pre-emptors are co-
sharers and that the pre-emption is allowable, although the transfer is a Hiba-bil-ewaz
as the transferees are not within three degrees of consanguinity of the transferor. But
the courts below ignored and failed to find that only the opposite party 8 Korban Ali has
some share in the case holding, but other sellers namely, 10-15 had no title or interest
in the suit land. So their sale is fictitious. DW 2 has admitted in his deposition that
Korban Ali is a co-sharer and it has also been admitted by the pre-emptors that Korban
Ali is a co-sharer. So Korban Ali alone had some interest in the case holding, although

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he had never been in possession of the case land which is situated in a different district.
4. Courts below have rightly decided the point of law as to whether pre-emption can be
allowed against transfer made in the name and nature of Hiba-bil-ewaz as in the present
case. Sub-section 10 of section 96 of the State Acquisition and Tenancy Act reads as
follows:
"10 Nothing in this section shall apply to :
(a) a transfer to a co-sharer in the tenancy whose interest has accrued
otherwise than by purchase; or
(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 donor;
(d)......................
(e)...........................
5. The law is, therefore, very much clear that when a transfer is made as in the present
case by way of heba-bil-ewaz and the transferees are not within three degrees of
consanguinity the pre-emption is to be allowed and accordingly, the courts below have
passed their decision, allowing pre-emption, on this point.
6. In the case of Md Azizul Bari vs. Md Ismail and another : LEX/HEPK/0330/1967 : 19
DLR 184 this principle was decided by Mr Justice Murshed, the former Chief Justice of
this country. Although, it is a case of section 26F of the BT Act, but the principle of law
as to pre-emption both in BT Act and in the State Acquisition and Tenancy Act is
similar. It is section 96 sub-section 10 which is similar to the said principle of law in BT
Act. In the 19 DLR, case former Chief Justice. Mr Justice Morshed had decided the point
as to whether a pre-emption can be allowed against a transfer with the name and
character of Heba-bil-ewaz and he held as under:
Heba-bil-ewaz for non-pecuniary consideration is not exempted from the
operation of section 26F of the Bengal Tenancy Act unless such heba-bil-ewaz
is in favour of the husband or wife of the testator or the donor or of any
relation by consanguinity, with the three degrees of the testator or donor.
7 . In the case of Sale Mohammad vs. Mst Ayesha Khatun Chowdhury, :
LEX/HEPK/0030/1968 : 20 DLR 376, same question arose and has been decided by Mr
Justice Abdullah holding that the pre-emption cannot be resisted if transfer is in the
nature of the heba-bil-ewaz, but beyond three degrees of consanguinity.
8. Trial Court allowed the pre-emption Misc. Case being 4 of 1990 by his judgment and
order dated 9-9-1991. Against the same, the present petitioners opposite parties 1-7
took Misc. Appeal 6 of 1992. The same was contested and was dismissed by the
impugned judgment and order dated 31-5-93. The appellate Court has considered, the
facts and circumstances and the evidence on record, not in a very happy manner, but he
allowed the pre-emption concurring with the Findings and decision of the trial Court.
9. Korban Ali's (opposite party No. 8) interest is admitted by both the parties. But the
opposite parties 10-15 who joined their hands with Korban Ali to execute and register

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the transfer deed in question despite the fact that they had no interest whatsoever in the
case holding and they were not in possession of the case land, whether pre-emption has
been rightly and legally allowed by the courts below, this question, now poses before
me in this revision.
10. Mr Gaziul Hoq, the learned Counsel for the pre-emptors who got pre-emption in the
courts below, could not substantiate that the opposite parties 10-15 had any saleable
interest in the case holding rather Mr Hoq candidly admits that they had no interest at
all. This court is under much anxiety to resolve the question that if any person effect
any fraudulent transfer claiming him as a co-sharer in a particular holding although he
had no share or interest therein whether the pre-emption should be allowed, without
considering the validity of the transfer or as to whether the transferor had any interest
in the case holding and what will be the consequential effect of the same upon the real
owners of the property.
11. From the intention of the law makers it is very clear that to shut the door against all
the strangers who shall encroach upon the ownership and possession of the real co-
sharers and so that the real co-sharers can remain in enjoyment of their property and
others cannot interfere with their right and possession, the law has been enacted as
under section 96 of the State Acquisition and Tenancy Act
The trial Court has observed, inter alia, as follows:

1 2 . But the courts below ignored that from the evidence which I have considered
carefully with the assistance by the counsels of the parties, it is admitted that opposite
party No. 8 Korban Ali had some interest in the suit holding. In view of this clear
finding in the judgment of the trial Court that the opposite parties 9-15 had no saleable
interest in the case holding which is clear from the cases of both the parties, how pre-
emption could have been allowed in respect of a fraudulent transfer, which could be
allowed legally in respect of the share of opposite party No. 8.
13. Appellate Court also has accepted the finding of fact of the trial Court, as it has not
been rebutted by the appellate Court.

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14. Pre-emption is a kind of purchase in preference according to category. When the
question of purchase comes, the seller or transferor must have some right or saleable
interest in the holding without that what the buyer will get by pre-emption, whatever
may be the nature of transfer. So against fictitious transfer pre-emption cannot be
allowed. If pre-emption is allowed in respect of fictitious transfer, it will illegally affect
the share and interest of the real co-sharers, which cannot be allowed by a court of law.
15. So the courts below illegally allowed pre-emption as to the entire land, namely,
2.32 acres although the alleged sellers excepting opposite party 8 Korban Ali had no
saleable interest at all, as it is established in this case, by evidence that the pre-emptors
are co-sharers. Pre-emption could be legally allowed only to the extent of the share of
Korban Ali (opposite party No. 8) and the prayer for pre-emption of the share of other
fictitious sellers should have been rejected and turned down. The finding and decision
of the Court below to that extent is illegal and liable to be set aside.
16. Now the question naturally arises, how the pre-emptors shall get the possession or
enjoy the share of Korban Ali which is undivided and was not under possession of the
vendor who is a man of different district. It can be possessed by the pre-emptors only
after partition of the shares of all the co-shares by metes and bounds, which may
commence through court or amicably by the parties through any document or orally.
1 7 . The transferors are opposite parties 8 (Korban Ali) and 10 to 15 that is 7 in
number. Since their share had not been separately mentioned in transfer deed in
question, it shall be presumed and legally be found that the share of each vendor is
equal. So, Korban Ali got 1/7 the share out of 2.32 acres land which comes to 33 1/7
acres which is preemptible.
18. The question may arise, whether this court sitting in a revision under section 115 of
the Code of Civil Procedure, can decide the genuineness of the transfer deed which is
subject of pre-emption.
19. In the case of Sakha Bibi vs. Taib Ali Mollah and others, reported in 13 BLD 677, it
has been held as follows:
So, in the facts and circumstances of the case and in view of the material
evidence on record, I am of the view that this Court can also pass an
appropriate order in its revisional jurisdiction in deciding this case finally and
conclusively without remanding it to the lower appellate Court. On this point
this case finds support from the case of Sk Abdul Latif vs. Abdul Malek, 1984
BLD (AD) 15 (Para-8).
20. For the reasons and discussions made above, I am inclined to set aside the part of
the decision of the courts below and to uphold and affirm the decision of the courts
below in respect of allowing pre-emption against the share of opposite party No. 8
Korban Ali only.
21. In the result, the Rule is made absolute in part. Pre-emption is allowed in part in
respect of the share of Korban Ali, as specified above. The pre-emption case is
dismissed in respect of claim for pre-emption of the shares of the opposite parties 10-
15. The decision of the courts below enhancing the consideration money is set aside in
view of the fact that only the share of Korban Ali is allowed to be pre-empted. No order
as to costs.
The records of the lower courts shall be sent down at once.

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