Babu Ram vs Santokh Singh (deceased) through his L.Rs. & ors.

Chander Bhusan Barowalia, J.

1.The present regular second appeal is maintained by the appellant, who was defendant No.2 before the learned Trial Court (hereinafter to be called

as “the defendant No.2â€), laying challenge to the judgment and decree, dated 15.05.2002, passed by learned District Judge, Hamirpur, H.P., in

Civil Appeal No. 86 of 1994, whereby by allowing the appeal, the judgment and decree, dated 04.05.1994, passed by the then Sub-Judge (II),

Hamirpur, in Civil Suit No.194/91, was set aside.

Briefly, the facts, which are necessary for determination and adjudication of the present appeal, are that the land entered in Khata No.25 min,

Khatoni No.29 min, Khasra Nos. 982, 1192 kita 2 area measuring 58 kanals & 1 marla, as per the jamabandi for the year 1987-88, situated in Tika

Badehra, Tappa Badohag, Tehsil Nadaun, District Hamirpur, H.P. (hereinafter to be referred as ‘the suit land’) is in the ownership and

possession of the plaintiff and defendant No.1, besides they are also recorded owners of the land entered in Khata No.25 min, Khatoni No.29 min.

Khasra Nos. 138, 160, 181, 432, 460, 989 measuring 34 kanals 3 marlas situated in Tika Badehra, Tappa Badohag, Tehsil Nadaun, District Hamirpur,

H.P. It has been alleged that they have also an old house consisting number of rooms inherited from their father situated in Abadi Tika Badehra,

Tappa Badohag, Tehsil Nadaun, District Hamirpur, H.P. The suit land situated at a far off place from the ancestral Abadi of plaintiff and defendant

No.1 and is called ‘Cheli Nala’, the same is even called as ‘Pani-ka-panga’ and ‘Rase-da-panga. It was, thus, not possible to look after

the same. The defendant No.1 had thus given the entire suit land to the plaintiff by way of exchange and in lieu thereof, the plaintiff had given his

entire share in the Abadi as well as in the land adjoining thereto. After such exchange, the parties even took the possession of their respective land

according to such exchange. It is the suit land came to the plaintiff. He had broken the same and made cultivable because earlier it was

‘Kharatar’ and ‘Banjar Kadim’. He even raised the construction of residential house by spending huge amount. The exchange dated

29.1.1987 is stated to be admissible and has been made by way of family arrangement by the parties and as such binding on defendant No.1. The

defendant has thus left with no right, title or interest in the suit land. Thus, exchange even duly acknowledged by defendant No.1, as he served the

notice dated 27.6.1989 on the plaintiff which was duly replied. The said defendant, however, in connivance with defendant No.2, has executed sale

deed on 19.8.1991 and thereby sold a portion of the suit land i.e. half share of the land bearing Khasra No.1119, measuring 19 kanals without any

right, title and interest to defendant No.2. Such alienation of the suit land is stated to be absolutely illegal because the sale is not complete. Otherwise

also, the plaintiff, (hereinafter to be referred as ‘defendant No.1), who is in exclusive possession of such suit land by way of family arrangement as

well as exchange and as such the same should not have been sold by defendant No.1 to defendant No.2. Hence, the suit for the decree of permanent

prohibitory injunction restraining the defendants from causing any interference in the suit land because of the plaintiff is owner in possession thereof

and defendant No.1 has no right, title and interest therein and as such the sale deed dated 19.8.1991 is null and void and not binding on the plaintiff, in

the event of the exchange is not proved, in that event for the decree of permanent prohibitory injunction and declaration that the plaintiff being co-

sharer has got the preferential right to acquire the suit land on consideration of market value or assessed by the Court, as he being co-sharer in the

Khata and also real brother of defendant No.1 has got preferential right to acquire the same under Section 22 of the Hindu Marriage Act.

The defendants on entering appearance have contested the suit. They raised preliminary objection so as to maintainability, locus standi and valuation

of the suit etc. On merits, while admitting the suit land to be joint of the plaintiff and defendant No.1, being inherited from their father as well as the

exchange of the suit land with the plaintiff on 29.1.1987, it has been submitted that the plaintiff did not implement the exchange as he never lodged any

report in this behalf with the revenue authorities and also failed to exchange the land in terms of instrument of exchange. Thus, the defendant

remained in possession of the suit land throughout. It has been denied that the plaintiff has broken the land or constructed the residential house

thereon. It has also been denied that it was the plaintiff who submitted that since defendant No.1, is the owner in possession of half share of the land

in possession and as such the same has rightly been sold by him to an extent of half share to defendant No.2/appellant herein.

The plaintiff, by filing replication, denied the contents of the preliminary objections being wrong and on merits reiterated the entire case as set out in

the plaint.

Written statement was filed on behalf of defendants No. 1 and 2 wherein preliminary objections of maintainability, estopple, locus-standi, cause of

action valuation, bonafide purchaser and right of pre-emption has been abolished, were taken. On merits, it was submitted before the learned Trial

Court that the exchange was agreed upon 29.1.1987, between the plaintiff and defendant No.1, but the plaintiff did not implement the same and no

report was ever lodged with the revenue authorities as the plaintiff had backed out and the possession was also not exchanged and the plaintiff and

defendants remained in possession as before of half share each. The land continuous to be Kheraiter Banjar and cultivated as before and the plaintiff

has not constructed any residential house and cattle shed after the year 1987-88 over the suit land. It is also denied that the plaintiff is in possession

over the suit land, but till the date of sale, defendant No.1 was in possession over his share and after the sale, defendant No.2 is in physical possession

over ½ share of the land described in para-1 of the plaint. It has been alleged that defendant No.1 has executed the sale deed on 19.8.1991, in

favour of defendant No.2, and the same is for legal necessity and valuable consideration and is legally valid. Defendants No.1 and 2 have not played

any fraud or there is any misrepresentation. The property in suit is not ancestral and parties are not governed by Kangra Agricultural Customs.

Replication was also filed by the plaintiff controverting the written statement and reiterating the allegations levelled in the plaint.

On pleadings of the parties, the learned Trial Court framed the following issues for determination and adjudication:

“1. Whether the plaintiff is entitled for the decree of permanent prohibitory injunction as prayed for ? OPP.

Whether the sale by defendant No.1 in favour of defendant No.2, dated 19.8.91 is null and void as alleged? OPP.

Whether the plaintiff has got preferential right to acquire the suit land, if so, on consideration ? OPP.

Whether the suit is maintainable? OP.

Whether the plaintiff is estopped by his act and conduct from filing the present suit? OPD.

Whether the plaintiff has no cause of action? OPD.

Whether the suit is properly valued for the purpose of court fee and jurisdiction? OP-Parties.

Whether the defendant No.2 is the bonafide purchaser ? OPD.

Whether the sale is for legal necessity and valuable consideration? OPD

Relief.â€​

The learned trial Court below after deciding Issues No. 1 to 6 in negative, Issues No.7 affirmative and Issues No.8 and 9 redundant, dismissed the

suit with costs. Subsequently, the plaintiff maintained an appeal before the learned First Appellate Court, who by the judgment dated 15 th May, 2002,

partly allowed the appeal to the extent that the plaintiff had preferential right to acquire the land in dispute under Section 22 of the Hindu Succession

Act and the claim of the plaintiff with respect to the exchange was declined and to that extent the judgment of the learned trial Court has been upheld.

Hence, the present regular second appeal, which was admitted for hearing on the following substantial questions of law:

“1. Whether Section: 22 of the Hindu Succession Act excludes interest in agricultural land of an intestate and the preferential right over

“immovable property†as envisaged in the said provision is confined only to business and such immovable property which does not include the

agricultural land?

Whether Section: 22 of Hindu Succession Act applies only to “proposed transfer†or “contemplated transfer†and not to the “concluded

transferâ€​ or the “transfer already effected ?â€​

I have heard the learned counsel for the parties and have also gone through the record.

Learned counsel for the appellant has argued that the sale is ordered to be set aside inspite of the fact that the same was not prayed by the plaintiff.

He has further argued that no interest was paid by the learned Lower Appellate Court on the consideration amount for the sale. He has further argued

that the exchange was proved on record. He has also argued that on 19.8.1991, the sale was executed by defendant No.1 in favour of defendant No.2

to prove the exchange. He has relied upon Ext. P1. He has argued that under Section 22(2) of the Hindu Succession Act, no application was made

within the stipulated time as the transfer is already effected, so, the provision is not applicable to the facts of the present case. He has further argued

that the Court fee was not affixed as per the law. He has also argued that there is no plea in the plaint that the land was agricultural land.

On the other hand, the learned counsel appearing for the respondents, has argued that oral exchange was permissible in Punjab. He has further

argued that as per Section 22 of the Hindu Succession Act, the sale is rightly set aside and the suit is rightly decreed by the learned Lower Appellate

Court. He has further argued that the Hon’ble Division Bench of this Court in RSA No.258 of 2012-F and Cross Objection No.417 of 2012, titled

Roshan Lal (deceased) through his LRs versus Pritam Singh & others, decided on 01.03.2018, has held that Section 22 of the Hindu Succession Act,

1956 is also applicable to the agricultural land.

In rebuttal learned counsel for the appellant has argued that the judgment of the learned Lower Appellate Court is required to be set aside as the

learned Lower Appellate Court has neither given an interest on the sale amount nor there was any Substantial Question of Law framed in the Cross-

objections of the respondents and resultantly the appeal is required to be allowed and the Cross-objections are required to be dismissed.

In order to appreciate the rival contentions of the parties, I have gone through the record carefully.

Both the parties in support of their respective contentions adduced oral as well as documentary evidence. By way of oral evidence, the plaintiff

examined as many as 09 witnesses including himself as PW-1 besides tendering document Ex.P-4 to Ext.P-7. On the other hand, defendants

examined three witnesses including defendant No.1, Nathu Ram as DW-1. The main contention of the plaintiff was that defendant No.1 has been left

with no right title and interest over the land in dispute after exchange which took place on 29.1.1987 and further that the sale deed executed on

19.8.1991 between defendant No.1 and defendant No.2 is the result of fraud and misrepresentation and has got no effect on the right of the plaintiff

qua the share of defendant No.1. The defendants in their written statement have admitted that exchange was agreed upon 29.1.1987 between the

plaintiff and defendant No.1, but it was never implemented by the plaintiff and no report was ever lodged with the revenue authorities rather the

plaintiff had backed out and the possession was also not exchanged. The said exchange has been placed on the record as Ext.P-1 and on perusal of

the evidence adduced by the plaintiff that there was an agreement, Ext. P-1 between the parties regarding the exchange of the land in dispute, but the

moot question is as to whether the document Ext.P-1 was implemented and further given effect to in the revenue record or not. It has come in the

statement of the plaintiff (Santokh Singh) in the cross-examination that the said exchange/agreement Ext.P-1 has not been given effect to in the

revenue record and further that he had gone to Patwari to register the report about it, but it was refused to be entered on the ground that both the

parties should come jointly. This witness has also stated that he had not got the suit land partitioned from the Tehsildar. This witness has also admitted

that he and Nathu are in possession of the suit land at present in the same condition as were in the year 1987 at the time of agreement and voluntarily

added that they are in possession as per the agreement and he has also shown his ignorance regarding the conducting of Girdawari by the Patwari on

the spot.

Although, PW-2 Braham Dass has proved the document Ext.P-1, yet nothing such has come in his statement so as to suggest that the said

agreement/ exchange Ext.P-1 was given effect to in the revenue record or not. PW-3 Birbal has stated that document Ext.-1 bears his signatures and

further the parties had executed the exchange as per the document Ext.P-1. It has been denied that there was no implementation of document Ext.P-

1.

PW-4, Tihru Ram has stated that the plaintiff is in possession of the land situated at pani-ka-panga and plaintiff has also constructed a house over

there five years ago. In cross-examination, he has shown his ignorance as to whether the house is in existence since the time of his father.

PW-5, Kishore Sharma, Advocate, has proved the notice Ext.P-2 and reply Ext. P-3. While PW-6 Birbal has stated that the agreement Ext.P-1

bears his signatures vide which the land was exchanged between the plaintiff and defendant No.1 and further that the plaintiff is in possession of the

suit land. In cross-examination, it has been stated that the Patwari does Girdawari on every harvest and makes the entries as per the situation on the

spot. This witness has also admitted that the plaintiff had not vacated that room for Nathu, which he had agreed to vacate and further that the plaintiff

is still in possession of that room and it is locked. It has further been admitted that the plaintiff is still in possession of the land adjoining to abadi at

Badehra and further admitted that the land in dispute, which belongs to Nathu, had been sold to Babu Ram. It has been submitted that there was

dispute between the parties pertaining to 10 Kanals land and house and plaintiff (Santokh Singh) used to say that he will part with the land only on the

sanctioning of the mutation. Now, he has admitted very important suggestion that the agreement, which was got executed at their instance, has been

implemented regarding certain conditions and had remained unimplemented regarding the certain conditions.

PW-7 has proved that defendant No.1 has sold the suit land to the extent of ½ share to Babu Ram, appellant herein. The plaintiff while

appearing again, as PW-8, has stated that defendant No.2 and the whole villagers were having knowledge about the partition. PW-9 is also witness to

the same effect.

Defendant Nathu Ram, while appearing as DW-1, he himself and his witnesses have proved the execution of the sale deed dated 19.8.1991. It has

also come in the evidence of the defendants that prior to sale, defendant No.1 was in possession of the suit land to the extent of ½ share and he had

sold his share to defendant No.2 and now only defendant No.2 is in possession of the suit land. In cross-examination, he has denied the suggestion that

he has sold the land in dispute by taking undue advantage of the entries in the revenue record. He also stated that partition was effected as per

document Ext.P-1, which bears his signatures and further that the plaintiff has locked the house.

DW-2, Babu Ram has denied the suggestion in the cross-examination that the plaintiff is in possession of whole of the suit land.

From the perusal of documentary evidence i.e. copy of Jamabandi for the year 1987-88(Ext.P-4), which reflects that the suit land comprising

Khasra Nos. 982 and 1119 is in the exclusive ownership and possession of the plaintiff and defendant No.1 in equal shares. Ext.P7 is also a copy of

mutation No.511, whereby the ownership of the suit land was mutated in favour of the plaintiff and defendant No.1, in equal shares.

As far as Section 22 of the Hindu Succession Act is concerned, it has been held by the Hon’ble Division Bench of this Hon’ble Court in

RSA No.258 of 2012-F and Cross Objection No.417 of 2012, titled Roshan Lal (deceased) through his LRs versus Pritam Singh & others, decided on

01.03.2018, that Section 22 of the Hindu Succession Act, 1956 is applicable to the agricultural land also. The relevant extract reads as under:-

“60. The Hindu Succession Act is a beneficial piece of social legislation enacted with sole object to provide a mechanism governing the law relating

to succession among Hindus. The Act, being a codifying statute is a complete code and a comprehensive legislation in respect of the matters dealt

with thereunder. Regard must, therefore, be given to the clear language contained under the Act in the matter of interpretation of various provisions

contained therein. Following observations of the Supreme Court in Velamuri Venkata Sivaprasad (dead) by LRs vs. Kothuri Venkateshwarlu (dead)

by LRs, AIR 2000 SC 434, the relevant to the context, are reproduced herein below: “Undisputably, the Hindu Succession Act, 1956 in particular

Section 14 has introduced far reaching changes having due regard to the role and place of womanhood in the country on the basis of the prevailing

socio-economic perspective. It is now a well-settled principle of law that legislations having socio-economic perspective ought to be interpreted with

widest possible connotation as otherwise, the intent of the legislature would stand frustrated. Recognition of Rights and protection thereof thus ought to

be given its full play for which the particular legislation has been introduced in the Statute Book. ………………. The endeavor of the law court

should thus be to give due weightage to the requirement of the Constitution in the matter of interpretation of statutes……………. The legislation of

1956 therefore, ought to receive an interpretation which would be in consonance with the wishes and desires of framers of our Constitution. We

ourselves have given this Constitution to us and as such it is a bounden duty and an obligation to honour the mandate of the Constitution in every

sphere and interpretation which would go in consonance therewith ought to be had without any departure therefrom.â€​

The provisions contained under Section 22 of the Act have, therefore, to be construed and understood in the light of the above legal principles

settled by the Supreme Court. Nothing is there in Section 22 of the Hindu Succession Act, 1956 to prohibit its applicability to “agricultural landâ€

and for that matter even to any other kinds of land including “Banjar Kadimâ€​ and “Gair Mumkinâ€​, (the subject matter of dispute in the present

lis). As a matter of fact, words “immovable propertyâ€​ in Section 22 of the Act covers all kinds of land including “agricultural landâ€​. It is worth

mentioning that in the report of Joint Committee of both Houses of Parliament on the Bill called as “The Hindu Succession Bill†(13 of 1954),

presented to the Rajya Sabha to amend and codify the law relating to intestate succession among Hindus, clause 24 was incorporated with a view to

make additional provision to the effect that as and when an heir wish to dispose of his share in the immovable property or business, the intestate left

behind, the other heirs shall have not only the right of preemption but also to enjoy such right by buying off his/her share and also that of a married

daughter and thereby to dislodge the fears especially being entertained by the business community that a son-in-law and his family members getting

hold of daughter’s share may disturb their business.Â

Clause 24 of the Bill was enacted with a view to extend preferential right in favour of a co-sharer to buy off the share of another co-sharer in an

immovable property or in any business carried on by an intestate in case the latter intends to sell his/her share therein. The Bill adopted by the Select

Committee after taking into consideration various suggestions made from time to time was given short title called as “The Hindu Succession Act,

1956â€​. The Act has intended to amend and codify the law relating to succession among Hindus. Section 22 of the Act is para materia to Clause 24 of

the Bill.

The intention behind to give preferential right to a heir(s) as envisaged under Section 22 of the Act, to acquire property of other heirs in certain

cases, therefore, is with the sole object to prevent the fragmentation of the estate and introduction of strangers in the family business and estate. After

the commencement of the Hindu Succession Act, 1956, if the interest in any immovable property or business carried by an intestate devolves upon

two or more heirs specified in class I of the Schedule and if anyone of such heirs proposes to transfer his/ her interest in the property or the business,

the other heirs shall have a preferential right to acquire such interest proposed to be transferred. The consideration for acquisition of that interest

either may be mutually agreed upon between those two heirs and in the absence of any such agreement, the matter has to be decided by the Court on

an application to be filed under Section 22 of the Act. If the applicability of Section 22 of the Act is excluded in the case of “agricultural landâ€, the

very purpose of such benevolent provisions therein shall be frustrated.

As noticed by brother Justice Karol in para supra, there are two divergent views qua the applicability of Section 22 of the Act to “agricultural

landâ€. Section 22(1) of the Act refers to the immovable properties and business alone. In our considered opinion, the expression “immovable

property†is quite wide to include agricultural land(s) and for that matter any other land including “Banjar Kadimâ€and “Gair Mumkinâ€,the

subject matter of dispute in the present lis.

True it is that normally transfer and alienation of agricultural land falls squarely within the ambit of item 18 of the State List (List II) of Schedule

VII of the Constitution of India. The transfer of immovable property contemplated under Section 22 of the Hindu Succession Act, 1956, however, has

to be taken an exception to the general rule of transfer of agricultural land as envisaged under item No.18 State List (List II) of Schedule VII of the

Constitution of India. Such a transfer, to my mind, is covered under item No. 5 of Concurrent List (List III) of Schedule VII of the Constitution of

India, as in a case of “intestacy†and “successionâ€, the Parliament can also enact laws. As rightly pointed out by my esteemed brother Karol,

the Acting Chief Justice, in the absence of any State enactment to extend preferential right to a co-sharer to buy off the share of another co-sharer, in

the immovable property or business left behind by an intestate, Section 22 of the Act is applicable to such a transfer.

As already noticed, the object behind it is very noble i.e. to prevent the fragmentation of holdings, the entry of a stranger to the immovable

property and business left behind by an intestate and on the top of it to give some solace to the intestate at his heavenly abode that after his/her death

the successors do not allow any third person or stranger to enter upon the estate/business, he/she left behind. It is a hard fact that agriculturists are

emotionally attached with the holdings came in their hands from their forefathers. No one wants to part therewith by way of its transfer to a stranger.

In a case of inheritance by more than one heir, sometime a scrupulous and cunning heir sells off his share in the joint property to a stranger either to

torture the other heirs or take revenge from them or teach a lesson to them for variety of reasons, including jealousy or inimical relations with them.

Therefore, Section 22 of the Act not only protects the rights of other heirs in the estate left behind by an intestate but also save them from mental

torture, harassment and also put fetters on such scrupulous heir from transferring his share in the joint property he inherited to a third

person/stranger.â€​

Such being the position, we feel that the provisions contained under Section 22 of the Act should also be made applicable to the property inherited

by way of testamentary succession and also by survivorship and in addition to the immovable property or business left behind by an instate. Anyhow,

we leave it open to the Union of India to consider the desirability of incorporating the provisions in this regard either in the Hindu Succession Act or in

any other legislation holding the field.â€​

Applying the above law to the facts of the present case, it is clear that Section 22 of the Hindu Succession Act applies to the Agricultural land

also.

Now, so far as the sale consideration is concerned, the defendant/respondent has already deposited the market value as per the judgment and

decree passed by the learned Lower Appellate Court. So, as the same is deposited, as it was adjudicated upon by the learned Lower Appellate Court,

I do not find any ground even to grant interest thereon. As has been held by a Hon’ble Division Bench of this Court, the plaintiff has preferential

right to acquire the land as per the provisions of law and thus the judgment and decree as passed by the learned Lower Appellate Court is just and

reasoned as per law and thus no interference is required by this Court.

The net result of the above discussion is that the instant appeal as well as the Cross-objection, deserves dismissal and the same are accordingly

dismissed. However, in view of the peculiar facts and circumstances of the case, the parties are left to bear their own costs.

Pending miscellaneous application(s), if any, also stand(s) disposed of.