Janardhan Pundalik Patil vs Anusuya and Others

B.V. Nagarathna, J.—1. This second appeal is filed by the 1st defendant in O.S. No. 101/2001, assailing judgment and decree passed in R.A. No. 77/2005 dated 7.06.2010, by the Fast Track and Ad hoc District Court, Hukkeri, confirming the judgment and decree passed in O.S. No. 101/2001 dated 19.09.2005 by the Civil Judge (Jr. Dn), Sankeshwar.

For the sake of convenience, the parties shall be referred to, in terms of their status before the trial court.

The plaintiffs filed the suit seeking in substance enforcement of their preferential right under Section 22 of the Hindu Succession Act, 1956, ("the Act", for short), in respect of the suit schedule property, which is agricultural land in Sy. No. 560 measuring 6 acres 26 guntas of Shippur village, Hukkeri Taluk, Belgaum District. The preferential right has been claimed in respect of 1 acre of the suit land. It is the case of the plaintiffs that the suit schedule property originally belonged to one Antu Mane, the original propositus who died in the year 1970. Thereafter the plaintiffs and defendants 2 and 3 succeeded jointly to the suit property. They had equal right, title and interest in the suit property. The property has not been divided. That on the death of the original propositus, the plaintiffs and defendants 2 and 3 have succeeded to the property as joint tenants, in other words, the suit property having devolved on them, the plaintiffs had the right to purchase 1 acre of the said property which was sold by defendant No. 2 in favour of defendant No. 1 under registered sale deed dated 08.01.2001 for valuable consideration of Rs. 32,000/-. Basing their right under Section 22 of The Hindu Succession Act, 1956 (in short ''the Act'') the plaintiffs filed a suit as against the defendants assailing the said sale.

On service of suit summons and Court notices the defendants appeared. The first defendant filed written statement contending that the plaintiffs are not entitled to any right under Section 22 of the Act. That the second defendant has right, title and interest in respect of his share in the suit schedule property and the defendant No. 2 had every right to alienate the said property in favour of defendant No. 1 and that Sec. 22 of the Act was not applicable to the alienation in question. It was contended that there was division of property by metes and bounds. It was further contended that the suit schedule property was divided into three shares and that the plaintiff No. 1 and defendant No. 3 had relinquished their right, title and interest in favour of plaintiff Nos. 2 and 3 and defendant No. 2. It was also contended that on relinquishment being made the said plaintiff No. 1 had no right to claim a preferential right in respect of the suit schedule property. Second defendant did not file any separate written statement. But, he filed a memo adopting the written statement filed by first defendant. Third defendant did not file any written statement.

On the basis of the rival pleadings the trial Court framed the following issues for its consideration.

ISSUES

1) Whether the plaintiffs prove that, suit property is their ancestral joint family property as on the date of suit?

2) Whether the plaintiffs prove that being joint owners they have got preferential right to purchase the share of Defendant No. 2 in the suit property?

3) Whether the Defendants prove that, there is partition by metes and bounds between plaintiffs and defendant No. 2 in the year 1992 itself?

4) Whether the plaintiffs are entitled for the relief of declaration and injunction?

5) What Decree/Order?

In support of their case the plaintiffs examined 4 witnesses and produced 2 documents which were marked as Ex. P. 1 and Ex. P. 2. The defendants examined 4 witnesses and produced 20 documents which were marked as Ex. D. 1 and Ex. D. 20. On the basis of the said evidence the trial Court answered issue Nos. 1, 2 and 4 in the affirmative, issue No. 3 in the negative and decreed the suit of the plaintiffs declaring that the plaintiff had preferential right to purchase 1 acre of the suit land sold by defendant No. 2 in favour of defendant No. 1. A direction was issued to defendant Nos. 1 and 2 to jointly execute the sale deed in favour of plaintiff. Upon their failure to do so, the plaintiff was at liberty to get the sale deed executed through the Court Commissioner. Further, defendant Nos. 1 and 2 were restrained by an order of injunction from dispossessing the plaintiffs from joint possession over the suit land without due process of law.

Being aggrieved by the said judgment and decree of the trial Court the first defendant filed R.A. No. 77/2005 before the first appellate Court.

On hearing the counsel for the respective parties the first appellate Court framed the following points for its determination.

POINTS

Whether the Appellant proves that there was partition in between Respondent Nos. 1 to 3 and 5 in respect of suit property in the year 1992?

Whether the Appellant proves that the Plaintiffs have failed to exercise their preemptive rights when the Defendant No. 2 has offered to sell the suit property?

Whether the Appellant proves that the Judgment and Decree passed by learned Civil Judge, Sankeshwar in O.S. No. 101/01 dtd. 19.9.2005 is suffering from irregularity and illegality and as such calls for interference by this Court in this appeal?

What Order?

It answered point Nos. 1 to 3 in the negative and dismissed the appeal. Being aggrieved by the judgment and decree of the first appellate Court the second defendant has preferred this regular second appeal.

I have heard arguments of the learned counsel for the parties.

It is contended on behalf of the appellant that the suit filed by the plaintiff was not maintainable as the alienation had taken place in January 2001. They could not have sought for preferential right under Section 22 of the Act once the alienation was made by defendant No. 2 in favour of defendant No. 1 and the sale transaction had been concluded. It was further contended that on account of a partition of the suit schedule properties between the members of the joint family subsequent to the death of the original propositus Antu Mane and 1/3rd share having fallen to the name of the appellant-vendor, he had every right to alienate his specific share. That he was allotted 2.10 acres in the entire survey number comprising of 6.26 acres and once the partition had taken place the suit schedule property no longer was amenable to the restriction under Section 22 of the Act. It was contended that once there is severance of joint status amongst members of the joint family Section 22 of the Act is not applicable.

Per contra, learned counsel for the respondent Nos. 1 and 3 contended that judgments of the Courts below do not call for any interference. It is an admitted fact that the extent of land, i.e., one acre, alienated by defendant No. 2 in favour of defendant No. 1 was at one point of time the joint family property. The said land devolved on the members of the family of Antu Mane, the original propositus. That, on his death the property, i.e., the entire extent of land, i.e., 6.26 acres, in Sy. No. 560 devolved on his family members. That, under Section 22 of the Act when once the immovable property of an intestate devolves on two or more heirs specified in Class 1 of the schedule, and anyone of such heirs proposes to transfer his or her interest in the property, then, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.

In the instant case the plaintiff were not aware of the alienation made by defendant No. 2 in favour of defendant No. 1 in January 2001, i.e., on 08.01.2001. Subsequently, a suit was filed seeking declaration that the plaintiffs had a preferential right. Such a declaration has been granted by both the Courts below and a direction was issued to execute the sale deed in favour of the plaintiff by defendant Nos. 1 and 2. It is further contended that, insofar as Sec. 22 of the Act is concerned, the distinction is not made with regard to subsequent partition of the property which is devolved on the Class-1 heirs by metes and bounds. Even if such a partition has been made Sec. 22 of the Act is applicable as far as plaintiffs are concerned. That, at any rate, in the instant case both the Courts did not believe that there was any such partition amongst members of the family of Antu Mane on his demise by metes and bounds. Therefore, the joint status continued and hence Section 22 of the Act was applicable. Supporting the judgments of both the Courts below, he contended that there is no merit in the appeal and no substantial question of law arises for consideration. Hence he prayed for dismissal of the appeal.

Having heard learned counsel for the parties and on perusal of the material on record and also original records it is noted that Antu Mane was the original propositus, he was the husband of plaintiff No. 1 and father of plaintiff Nos. 2 and 3 and defendant Nos. 2 and 3. He died sometime in the year 1970. On his death the plaintiffs and defendant Nos. 2 and 3 were jointly entitled to suit schedule property. One acre of sy. No. 560, which totally measures 6 acres 26 guntas was sold by second defendant in favour of first defendant. It is after the said alienation that the suit has been filed seeking enforcement of right of preemption under Section 22 of the Act. Consequently, the relief of injunction has also been sought. Section 22 of the Act reads as under:

Preferential right to acquire property in certain cases.--

(1) Where, after the commencement of this Act, an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.

(2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application.

(3) If there are two or more heirs specified in class I of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred.

Explanation.--In this section, "court" means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may, by notification in the Official Gazette, specify in this behalf.

The Section confers preferential right on class-1 heirs of a Hindu Joint family in respect of interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others. When the same devolves upon two or more heirs and any one of such heirs proposes to transfer his or her interest in the immovable property or business the other heirs shall have a preferential right to acquire the interest proposed to be transferred. If prior to the transfer being made by one of the heirs an application is filed by the other heirs before the competent Court of law, then such a Court can determine consideration for transfer and if any person proposing to acquire the interest is not willing to acquire the interest for the consideration so determined, then such person is liable to pay all costs of or incidental to the application. Also if there are two or more heirs specified in class-1 of the Schedule proposing to acquire any interest, that heir who offers the highest consideration for the transfer shall be preferred.

In the case of Ashutosh Chaturvedi vs. Prano Devi @ Parani Devi & Ors. (, AIR 2008 SC 2171) the Hon''ble Supreme Court referring to a decision of the Kerala High Court wherein it has been observed that, Sec. 22 of the Act does not provide any special procedure for seeking a remedy, the ordinary procedure for enforcement of any civil right has to be resorted to by the co-heirs who wish to enforce their rights under Section 22(1); in other words the remedy is by way of a regular civil suit before the competent court. Where the properties have been already alienated in favour of strangers there is all the more reason why there should be a full and fair adjudication of the entire matter in a suit tried before a competent civil Court because various factual questions are bound to arise for determination in such a suit wherein the principal issue would be whether the transfer complained of was effected in violation of sub-section (1) of Section 22. The main purpose of such a suit instituted by the co-heir will necessarily be the enforcement of the right conferred by Section 22(1) of the Act. The question of invalidity of the transfer effected by the other co-heir in favour of strangers becomes relevant in such an action as an incidental matter which has necessarily to be gone into for the purpose of determining whether the plaintiff is entitled to the relief sought by him against his co-heirs in enforcement of the right conferred by Section 22(1).

The invocation of Section 22 of the Act prior to alienation to be made is one aspect of the matter. But, if the alienation is made in violation of the preferential right of the heirs to purchase the property devolved from an intestate or any business carried on by him, then a separate suit has to be filed in that regard. Thus, in the instant case the alienation was made by defendant No. 2 in favour of defendant No. 1 on 08.01.2001 alleging violation of Section 22 of the Act. Suit was subsequently filed in July 2001 seeking declaration of their preferential right and for consequential relief. The said suit, in my view, is maintainable. Therefore, the contention of the learned counsel for the appellant that no such suit could have been filed after transfer of 1 acre of land by defendant No. 2 in favour of defendant No. 1 is not correct.

The other contention raised is that there was a partition between the parties and Ex. D. 3 and D. 4 are the diary extracts of the mutation made in the names of plaintiff Nos. 2 and 3 and defendant No. 2 to an extent of 1/3rd share each in respect of 6 acres 36 guntas. As plaintiff No. 1 and defendant No. 3 had relinquished their right, title and interest in the devolved property and once the partition was by metes and bounds had taken place Section 22 of the Act could not be invoked, was the contention.

In this regard it is noted at the outset that Section 22 of the Act does not make any distinction with regard to there being a partition of the devolved estate of Hindu intestate. That apart, both the Courts have held that there was no partition by metes and bounds between the plaintiffs and defendant No. 2 in the year 1992.

It is noted that Ex. D. 3 which is dated 26.06.1998, it is stated that plaintiff No. 3 has executed a release deed in favour of P.W. 3. On that basis name of plaintiff No. 1 has been entered and in accordance with the diary entry Nos. 3065 and 3215, name of plaintiff Nos. 1 and 2 and defendant No. 2 have been entered to the extent of 1/3rd share in Ex. D. 3. The fact that plaintiff No. 1 and defendant No. 3 have released their right, title and interest in the total extent of land, i.e., 6.26 acres in Sy. No. 560, would not result in partition of the said land in favour of plaintiff Nos. 2, 3 and defendant No. 2 by metes and bounds. Further, there has been no separate mutation and record of right made subsequent to Ex. D. 3 and Ex. D. 4. That apart the defendant No. 1 has not filed any suit seeking partition and separate possession of one acre of land which she has purchased. Therefore, it is clear that after 6.26 acres of land in Sy. No. 560 devolved on the plaintiffs and defendant Nos. 2 and 3 on the demise of Antu Mane, there has been no partition of the said land by metes and bounds between the family members. The share of the aforesaid persons in the said land remained joint. In the circumstances, Sec. 22 of the Act was applicable.

The trial Court as well as the first appellate Court have rightly held that plaintiff had such a right under Sec. 22 of the Act and have accordingly granted relief to the plaintiffs. Hence, no substantial question of law arises in this appeal. Accordingly, the appeal is dismissed.

However, it is clarified that the plaintiffs or defendant No. 3 or anyone of them is now at liberty to file an application u/S. 22 of the Act for the purpose of determination of the sale consideration and taking further steps in the matter before the competent Court of law.

It is further made clear that in case plaintiffs or defendant No. 3 do not agree to the sale consideration proposed by defendant Nos. 1 and 2 or determined by the Court, then the alienation made by defendant No. 2 in favour of defendant No. 2 shall stand intact.

Parties to bear their own costs.