Pre-emption rights under tenancy law arise on transfer itself, with statutory remedy exclusive and residuary limitation applying.

A co-sharer tenant's right of pre-emption under Section 26(f) of the Bengal Tenancy Act arises from the transfer itself and is not defeated by the absence of notice under Section 26(c); the right extends to non-notified co-sharers. The statutory application under Section 26(f) was treated as the exclusive mode of enforcement, so an ordinary civil suit was barred. In the absence of a special limitation period for a non-notified co-sharer, the residuary Article 181 of the Limitation Act applied, and an application filed within three years of the transfer was held to be within time.

---

---

Issues: (i) Whether a co-sharer tenant can exercise the right of pre-emption under Section 26(f) of the Bengal Tenancy Act even if no notice of transfer has been served under Section 26(c); (ii) whether the statutory application under Section 26(f) is the exclusive remedy, barring an ordinary civil suit; (iii) whether an application by a non-notified co-sharer is governed by Article 181 of the Limitation Act and is therefore within time if filed within three years of the transfer.

Issue (i): Whether a co-sharer tenant can exercise the right of pre-emption under Section 26(f) of the Bengal Tenancy Act even if no notice of transfer has been served under Section 26(c).

Analysis: The right of pre-emption was held to arise from the transfer itself and not to depend on service of notice. The notice provision was treated as regulating applications in notified cases, while the substantive right under Section 26(f) was held to extend to all co-sharer tenants. The absence of notice could not defeat the right, since that would permit the purchaser to nullify the section by withholding notice.

Conclusion: Yes. The right of pre-emption is available to a co-sharer tenant even without service of notice under Section 26(c).

Issue (ii): Whether the statutory application under Section 26(f) is the exclusive remedy, barring an ordinary civil suit.

Analysis: The right of pre-emption was created by the statute together with the mode of enforcement. Where a statute creates a right and prescribes the manner of enforcing it, that mode is ordinarily exclusive. On that basis, the remedy was held to be confined to the application contemplated by Section 26(f), and not an ordinary suit.

Conclusion: Yes. The remedy under Section 26(f) is exclusive and an ordinary civil suit is barred.

Issue (iii): Whether an application by a non-notified co-sharer is governed by Article 181 of the Limitation Act and is therefore within time if filed within three years of the transfer.

Analysis: The Court rejected the view that a period of four months from knowledge or a vague standard of reasonable time could be imported into the section. In the absence of a specific period for non-notified co-sharers, the residuary Article 181 was held applicable. Since the application is one made under a procedure regulated by the Civil Procedure Code, the residuary limitation applied and the applicant was allowed three years from the date when the right accrued, namely the date of transfer.

Conclusion: Yes. Article 181 of the Limitation Act applies, and the application was within limitation.

Final Conclusion: The petitioner succeeded on all substantial issues. The pre-emption application was maintainable without notice, the statutory remedy was exclusive, and the proceeding was not time-barred; the matter was therefore sent back for an order of pre-emption in accordance with law.

Ratio Decidendi: Where a statute creates a right of pre-emption and prescribes the mode of enforcement, the right is not defeated by non-service of notice unless the statute expressly makes notice a condition precedent, and in the absence of a special limitation period the residuary limitation provision applies.

---