Second Appeal No.43 of 1987,Second Appeal No.44 of 1987

3rd July, 2007

Petitioner Counsel: Shri. S.S. KAZI, Shri. K.G. KHADER
Respondent Counsel: Shri. S.Y. MAHAJAN

Cases Cited:
B. C. Shivashankara Vs. B. R. Nagaraj, 2007 ALL SCR 804 : 2007 AIR SCW 1588 [Para 2]
Tarubai Damu Sawant Vs. Bhiku Antu Yadav, 1982 Mh.L.J. 169 [Para 9,12]
Muralidhar Das Vs. Bansidhar Das, AIR 1986 ORISSA 119 [Para 9]
Jeewanram Vs. Lichmadevi, AIR 1981 RAJASTHAN 16 [Para 12]
V. Shreedevi Amma Vs. Subhadra Devi, AIR 1976 KERALA 19 [Para 12]
Ganesh Chandra Vs. Rukmani, AIR 1971 ORISSA 65 [Para 12]

JUDGMENT

JUDGMENT :- Both the Second Appeals are being disposed of by this common Judgment in as much as they arise out of common Judgment rendered by the First Appellate Court in two inter connected Appeals (R.C.A. No.107 of 1981 and R.C.A. No.223 of 1981).

2. Unfortunately no substantial question of law was formulated at the time of admission of the Appeals nor any substantial question of law is indicated in the Appeal Memo of either Appeal. The Apex Court in "B. C. Shivashankara Vs. B. R. Nagaraj (2007 AIR SCW 1588 : 2007 ALL SCR 804) observed :

"Sub-section (5) of Section 100 is applicable only when any substantial question of law has already been formulated and it empowers the High Court to hear, for reasons to be recorded, the appeal on any other substantial question of law. The expression 'on any other substantial question of law' clearly shows that there must be some substantial question of law already formulated and then only another substantial question of law which was not formulated earlier can be taken up by the High Court for reasons to be recorded, if it is of the view that the case involves such question."

3. In view of limited scope available under sub-section (5) of Section 100 of the Code of Civil Procedure, now it is difficult to frame any substantial question of law, particularly when no such question was formulated by the appellants in the Appeal Memo and that this Court also did not formulate the same while admitting the Appeal. The Second Appeals cannot be entertained, therefore, in the absence of any real substantial question of law involved therein.

4. Though I am not inclined to entertain these Second Appeals for the reasons mentioned above, yet even on consideration of the merits, I find it difficult to interfere with the findings of the First Appellate Court.

5. Original plaintiff Anjanabai claimed right of preemption available under Section 22 of Hindu Succession Act, 1956. Admittedly, she is entitled to half share in the suit land. She is daughter of original defendant No.1 Trivenibai. The relationship would be clear from the following genealogical table:

Yedba (died in 1973)
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Anjanabai (Daughter-Plaintiff)					Trivenibai (Widow-Defendant No.1)

6. Yedba was owner of three parcels of the lands situated at village Koudgaon. They are: Survey No.118-1(B), Survey No.118-2(B) and Survey No.123-(B). The defendant No.1 sold the suit lands to defendant Nos.2 and 3 under two (2) registered sale deeds. The plaintiff's case before the trial court was that she was minor at the time of said sale transactions which are not binding on her. She claimed half share as the legal heir of the deceased Yedba and further claimed remaining half share alienated by her mother, in the exercise of her right of preemption available under Section 22 of the Hindu Succession Act, 1956. She was ready and willing to pay half of the consideration amount in lieu of the said share. The trial court partly decreed the suit holding that the plaintiff was entitled to claim half share by way of partition but dismissed the claim for remaining half share sought in pursuance to right of preemption. Feeling aggrieved, both the parties preferred the Appeals. The First Appellate Court dismissed the defendants Appeal whereas allowed the Appeal preferred by the plaintiff.

7. The only question involved is whether the plaintiff is entitled to claim right of preemption under Section 22 of the Hindu Succession Act, 1956. Though no substantial question of law is formulated and framed, yet I deem it proper to proceed on the assumption that the question whether the right of preemption conferred by Section 22 of the Hindu Succession Act could be enforced by the plaintiff after the alienations were made and what is the purport of expression "any one of such heir proposed to a transfer his or her interest" as used in sub-section (1) of Section 22 of the Hindu Succession Act, 1956.

8. The fact that the plaintiff and defendant No.1 are the only legal heirs left by deceased Yedba is undisputed. He died intestate. The fact that the suit lands were alienated by the defacto guardian i.e. defendant No.1 without any permission of the competent court, is also undisputed. There is no dispute about the fact that being legal heir, the plaintiff is entitled to claim her half share in the suit land. Both the Courts below, concurrently held that she is entitled to relief of partition in respect of her half share.

9. Learned Advocate Mr. Kazi would submit that the right of preemption can be exercised only at the stage of the proposal of transfer and not thereafter. He would submit that the transferees could not be deprived of their rights when the alienation was effected by mother of the plaintiff. He contended that the transferees are in the enjoyment of the suit lands from 1978 and have developed the same and therefore it would be inequitable to allow exercise of the right of preemption. As against this Mr. S. Y. Mahajan Advocate appearing for the original plaintiff/respondent No.1 would submit that the right of preemption is available by virtue of heirship and is provided under the special enactment which would prevail over the general provisions of law. He contended that the plaintiff cannot be compelled to remain as adjacent land holder in neighbourhood of the defendant Nos.2 and 3, against her wish. He seeks to rely on "Tarubai Damu Sawant Vs. Bhiku Antu Yadav (1982 Mh.L.J. 169) and "Muralidhar Das Vs. Bansidhar Das and others" (AIR 1986 ORISSA 119). It is held by a Single Bench of Orissa High Court in "Murlidhar Das Vs. Bansidhar Das and others" (supra) that remedy to seek enforcement of right under Section 22 of the Hindu Succession Act is by way of suit. It is further held that an application by the aggrieved co-heir is not maintainable. Needless to say, an application filed at the stage of proposed transfer is not contemplated under the provisions of Section 22(1) of the Hindu Succession Act. Such a right is required to be exercised through a suit.

10. The sub-section (1) of Section 22 of the Hindu Succession Act runs as follows:-

"Section 22. 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."

11. It is manifest that sub-section (1) confers upon one co-heir a preferential right to purchase the property of the other co-heirs. This right is akin to the right of preemption. The expression "one of such heirs proposed to transfer his or her interest" also include the final transfer of such interest by way of sale, gift or any other mode. The right of preemption is not obliterated after the transfer of the interest is completed through an instrument like sale deed or gift deed. There is no provision in either of the sub-clauses to take away right of the other heirs, who are not party to such transfer of interest, to acquire the interest of the heir/heirs who proposed to transfer their interest or actually transferred the same.

12. Mr. Kazi seeks to rely on "Jeewanram Vs. Lichmadevi and another" (AIR 1981 RAJASTHAN 16). A Single Bench of Rajasthan High Court held that the words "immovable property of an intestate" do not include agricultural land of an intestate. I find it difficult to appreciate the view taken by the Single Bench of Rajasthan High Court in the given case. The agricultural lands are "immovable properties" within the meaning of Section 3 of the Transfer of the Property Act. Moreover, a Single Bench of this Court in "Tarubai Damu Sawant Vs. Bhiku Antu Yadav" (supra) held that Tarubai was entitled to enforce her right of preemption in respect of sale effected in favour of respondent Bhiku. The learned Single Judge followed the view of Kerala High Court in "V. Shreedevi Amma Vs. Subhadra Devi" (AIR 1976 KERALA 19) and dissented from view of Orissa High Court in "Ganesh Chandra Vs. Rukmani" (AIR 1971 ORISSA 65). The Kerala High Court held that preferential right under Section 22(1) is to be enforced by way of a regular civil suit before a competent Civil Court and not by way of an application. Considering the relevant provisions of law, and the view taken in case of "Tarubai Damu Sawant Vs. Bhiku Antu Yadav and others, I have no hesitation in holding that plaintiff Anjanabai is entitled to seek right of preemption in respect of the suit lands. The First Appellate Court was right, therefore, in decreeing the suit for the relief of preemption. Needless to say, no interference in the findings of the First Appellate Court is called for. So also the right of partition cannot be denied to the plaintiff.

13. For the reasons discussed herein before, both the Second Appeals deserve to be dismissed and are accordingly dismissed. No costs.

Second Appeals dismissed.