JUDGMENT Derbyshire, C.J. - There was a certain piece of land on the outskirts of Calcutta owned by the Bombay Industrial Trust, Limited. The occupant of that land previous to 1936 was one Momraj Mondal who was a tenant of that land from the Bombay Industrial Trust, the landlords. The land was originally agricultural although it is doubtful whether it is so to-day. Momraj appears to have had a raiyati holding. He had two wives: the first is dead but left a son Jonabali. The second wife is Fatehjan who has two sons, Ahmedali and Ashraf Ali. 2. It is said that at some time during his life Momraj Mondal agreed to sell this holding to C.C. Chatterjee. Apparently there was an agreement; there was nothing more. 3. On February 11th, 1936, an agreement was made between a number of partners who are described as Basil and Co., and the Bombay Industrial Trust whereby Basil and Co. agreed to purchase the latter's proprietary interest in the land. On March 7th, 1936, Basil and Co. by two kobalas purchased the tenancy rights of Fatehjan, that is Monraj's widow, and Jonabali, Mom-raj's son by his first wife. That was, we are told, a purchase of a six annas share of the holding. 4. On March 18th, 1936, C.C. Chatterjee filed a suit for specific performance of an agreement to buy the entire tenancy right of Momraj Mondal. On appeal, the suit was decreed against the heirs of Momraj Mondal with the exception of the interest of Fatehjan and Jonabali which had been purchased by Basil and Co. 5. On July 27th, 1936, the Bombay Industrial Trust sold their proprietary interest in the land to Basil and Co. On December 12th, 1939, C.C. Chatterjee purchased the tenancy right of Ahmed-ali and Ashraf Ali, that is to say, a ten-annas share in the tenancy. Basil and Co. then made an application under the new sec. 26F of the Bengal Tenancy Act for pre-emption against C.C. Chatterjee in respect of the share which Chatterjee had bought. The relevant provisions of sec. 26F are as follows: 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 under sec. 26C, apply to the Court for the said portion or share to be transferred to himself or themselves. 6. Basil and Co. The relevant provisions of sec. 26F are as follows: 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 under sec. 26C, apply to the Court for the said portion or share to be transferred to himself or themselves. 6. Basil and Co. had applied as co-sharers of the holding formerly held by Momraj for the transfer to them of the ten annas share which Chatterjee on December 12th, 1939, had bought from Ahmedali and Asharfali. 7. The learned Munsif on March 17th, 1941, allowed Basil and Co.'s application for pre-emption against Chatterjee. On June 18th, 1941, the learned Subordinate Judge on appeal reversed the judgment of the Munsif and dismissed the application for pre-emption. There being no appeal under the Bengal Tenancy Act in such circumstances, the matter comes before us under the provisions of sec. 115 of the CPC by way of revision. 8. Although the land in question is apparently no longer agricultural and this is a dispute between two firms of estate agents anxious to develop the land, it appears that the matter falls for decision under the provisions of the Bengal Tenancy Act. 9. The Subordinate Judge was of opinion that Basil and Co. were not co-sharers with Chatterjee or previously with Ahmedali and Ashrafali because they had on July 27th, 1936, bought the landlord's interest in the land, and having at that time also the raiyati interest of Fatehjan and Jonabali, that raiyati interest to the extent of six annas was merged into the larger rights which Basil and Co. had as landlords in the whole of the land. That being so, the Subordinate Judge held that Basil and Co. were no longer co-sharer tenants. 10. The question is -- was the learned Subordinate Judge right? I confess I have not found this an easy matter to decide. Generally speaking, the statement of the Subordinate Judge that a man cannot at the same time be a landlord and a tenant of the same land is correct and it is noteworthy that sec. 3 (17) of the Bengal Tenancy Act provides that a tenant means a person who holds land under another person and' is, or but for a special contract would foe, liable to pay rent for that land to that person. 11. 3 (17) of the Bengal Tenancy Act provides that a tenant means a person who holds land under another person and' is, or but for a special contract would foe, liable to pay rent for that land to that person. 11. It is said here that as Basil and Co. are certainly landlords they cannot at the same time be tenants. If that is so, the right of pre-emption which the co-sharer tenant possesses is lost if the landlord purchases the co-sharer tenant's right. I think the learned Subordinate Judge has overlooked one important matter in this case and it is this the holding of Momraj was a definite letting or jama of an entire piece of land. In respect of that piece of land Momraj was under an obligation to pay to the landlord Rs. 13 per annum as rent and perform the other obligations of a tenant. When he died, that letting and the rights under it and the obligations arising out of it were shared jointly by those who were entitled to succeed to the land: namely Jonabali, Fatehjan, Ahmedali and Ashrafali. Those four persons were bound jointly in respect of that holding to perform the duties and obligations arising out of it as well as to enjoy the benefits. Each was liable to pay the whole of the rent, and each having paid his rent was entitled to enforce contribution against the others according to their respective shares. But that jama was undivided. 12. Sec. 88 of the Bengal Tenancy Act provides as follows: Save as provided elsewhere in this section, a division of a tenure or holding or a distribution of the rent payable in respect thereof shall not be valid unless such division or distribution has been expressly consented to in writing by both -- (a) the landlord or the entire body of landlords or their agents duly authorised in that behalf, and (b) all the co-sharer tenants: Provided that, if there is proved to have been made in a landlord's rent-roll any entry showing that any tenure or holding has been divided or that the rent payable in respect thereof has been distributed, such landlord may be presumed to have given his express consent in writing to such division or distribution. 13. 13. The position then appears to be that until there is a division of the holding or tenancy in accordance with the provisions of the Bengal Tenancy Act the holding or tenancy remains, and as long as the holding or tenancy remains the rights of the owners of the holding or tenancy remain inter se as they did when the holding or tenancy was inherited from Momraj Mondal. 14. The position then appears to me to be this, that when Chatterjee purchased the tenancy right of Ahmedali and Ashrafali, it was perfectly proper for Ahmedali and Ashrafali to sell it. But at the same time the rights of the other parties to that tenancy or holding, which was still undivided, remained. They were the rights inherited by Jonabali and Fatehjan and sold by them to Basil and Co. There having been no division of the holding, Basil and Co. still being co-sharers were entitled in my opinion to exercise the right of pre-emption which is given by sec. 26F of the Bengal Tenancy Act. Until there has been a division of the holding in accordance with the provisions of the Bengal Tenancy Act and a particular piece of land has been allotted to Basil and Co., I am unable to see how there can be a merger of Basil and Co.'s rights as tenants in Basil and Co.'s rights as landlords. Here Basil and Co. were not simply tenants whose rights would be merged in those of the landlord; they were co-tenants bound to the other co-tenants in respect of a certain piece of land and until the bonds which bound them to their co-tenants had been severed as provided by the statute, there could be no merger of their tenants' rights in their landlords' rights. 15. For those reasons I am of the opinion that the learned Subordinate Judge was wrong in his decision and the learned Munsif was right. It follows that in my view the application of Basil and Co. for pre-emption should be upheld. 16. The result is that the Rule is made absolute. The applicants will have their costs in this Rule -- the hearing-fee being assessed at five gold mohurs. Sen, J. 17. I agree with my Lord the Chief Justice. It follows that in my view the application of Basil and Co. for pre-emption should be upheld. 16. The result is that the Rule is made absolute. The applicants will have their costs in this Rule -- the hearing-fee being assessed at five gold mohurs. Sen, J. 17. I agree with my Lord the Chief Justice. Basil and others having acquired a share in the occupancy raiyati holding of Momraj, they became co-sharer tenants; they could not by their later acquisition of the landlord's interest be divested of their rights as co-sharer tenants or be excused from their liabilities as such. 18. The raiyati holding continues its existence in spite of the fact that some of the co-sharers have acquired the landlord's interest. It cannot be said that the holding merged as a whole inasmuch as the owners of a part only of the holding have acquired the superior interest, the unilateral act of a co-sharer cannot affect the interests of the other co-sharers in the tenancy. Further, it cannot be said that there has been a partial merger as a tenancy cannot be split up or have its rent apportioned except with the express consent in writing of all the co-sharers and the landlord or unless some one or other of the ways mentioned in sec. 88 of the Bengal Tenancy Act is adopted. The raiyati tenancy therefore remains as it was in spite of the purchase by Basil and others of the landlord's interest. Basil and others would therefore continue to be co-sharer tenants and be entitled to exercise the right of "pre-emption" given to co-sharer tenants by sec. 26F of the Bengal Tenancy Act. It is true that after their purchase the position of Basil and others would not fall strictly within the definition of the word "tenant" as contained in sec. 3 (17) of the Bengal Tenancy Act, but that definition is not exhaustive; the opening words of sec. 3 make this quite clear.