( 1 ) THIS is defendants' second appeal. The respondents were plaintiffs in the suit. The suit was one for partition and separate possession of their share in the plaint schedule properties. ( 2 ) THE plaint schedule properties consist of both immovables and movables described respectively in schedules A and B. The defendants while admitting the relationship between the parties contended inter alia that in the properties in question the plaintiffs have no share as the same were the self acquisitions of Venkataswamy, husband of the first defendant and father of the other defendants. ( 3 ) THE Trial court dismissed the suit. But the first appellate court allowing the appeal has decreed the claim. In order to better understand the rival contentions raised in the appeal we may know the genealogical tree. THIPPANNA (died a long time ago) venkataramanappa (1968) = Lingamma (Plaintiff-1) venkataswamy (died in 1966) venkatamma (Plaintiff-2)= Venkatalakshmma (Defendant-1) narayana Parvathamma (Deft. 2) (Deft. 3) rukkamma Deft. 4 Kanthamma (Deft. 5) ( 4 ) AS is clear there from first defendant's husband Venkataswamy and the second plaintiff Venkatamma were the son and daughter respectively of the first plaintiff Lingamma and her husband Venkataramanappa. Venkataswamy pre-deceased Venkataramanappa. ( 5 ) IT is not in dispute that during the life-time of Venkataswamy he and his father venkataramanappa constituted an undivided hindu Family. ( 6 ) THE first appellate court proceeded on the basis that all the plaint schedule properties were the properties of that undivided Hindu joint Family. The Court envisaged a notional partition, quantified the shares and has come to the conclusion that the plaintiffs 1 and 2 were together entitled to 5/12 share in the properties. ( 7 ) CHALLENGING the judgement of the first appellate court the learned counsel for the appellant submitted; i) that the appellate court had erred in holding that the movables were the movables of the joint hindu family without any basis therefore (ii) that it had also erred in holding that all the immovable properties were the properties of the said family (iii) and that even otherwise it had also not properly quantified the shares to which the parties were entitled to. He also made another submission. During the pendency of the appeal first the plaintiff sold her share in favour of her daughter, the second plaintiff, under a registered sale deed. He also made another submission. During the pendency of the appeal first the plaintiff sold her share in favour of her daughter, the second plaintiff, under a registered sale deed. According to the learned counsel, this sale is void under Section 22 of the Hindu Succession Act 1956 (the Act) being in violation of the mandatory requirements of that provision. He submits that this fact has to be taken note of by the court in this appeal and the shares will have to be readjusted amongst the parties It is his case that if that transaction or sale is held illegal and not binding on his client, defendants 2 to 5 would also be entitled to their shares, under section 15 (a) of the Act in the estate left behind by the first plaintiff who admittedly is since dead. ( 8 ) RESPONDING to this submission and while supporting the judgement of the first appellate court the learned counsel for the respondents submitted that court had not committed any error in the matter of quantification of shares; that Sec. 22 of the Act was not at all attracted to the facts of the case; that even otherwise Sec. 22 does not apply to the proposed transfers of agricultural lands at all; and that the finding of the lower appellate court that his clients were entitled to their shares both in the movables and immovables is based on proper assessment of the law and facts and, therefore, no interference in the judgement of the court below is called for in this appeal. ( 9 ) WHILE submitting that the court below had committed an error in treating all the plaint schedule immovable properties as joint family properties what was submitted by the learned counsel for the appellants was that the plaint items-4, 5 and 8 which had been purchased by venkataswamy were his self acquisitions and that plaint items-2 and 3 which had been regranted to him on the abolition of the inam tenure were his absolute property and therefore the plaintiffs could not have claimed any shares therein. ( 10 ) AT the outset, in so far as this aspect of the appellants' case is concerned, it has to be stated that there is no merit in this contention. ( 10 ) AT the outset, in so far as this aspect of the appellants' case is concerned, it has to be stated that there is no merit in this contention. The findings of the first appellate court which is based on proper appreciation of facts in so far as items 4, 5 and 8 are concerned has to be sustained and so also its finding that the regrant of the inam lands made in favour of Venkataswamy enures to the benefit of the joint family. Admittedly these inam lands werein the possession and cultivation of the joint family of Venkataswamy and his father Venkataramanappa and only because the regrant was in the name of venkataswamy who had applied for occupancy rights, it cannot be said that he had acquired exclusive title to those two items. ( 11 ) WHILE challenging the correctness of the finding of the first appellate court on the quantum of shares allotted, it was further submitted by the learned counsel for the appellants that court had committed an error in not taking into consideration the shares to which defendants 3, 4 and 5, who were unmarried at the time of their father's death, would have been entitled to had there been a partition at that time-at the time of the death of Venkataswamy. If the said shares had been excluded to that extent the shares allotted to the plaintiffs in the estate left behind by Venkataswamy would have been reduced. According to the learned counsel, in the notional partition that has to be envisaged at the time of Venkataswamy's death each of his unmarried daughters would have been entitled to, under Section 8 of the Mysore Hindu law Women's Rights Act, 1933 (the Act of 1933), a share in the family properties to the extent of V4th of what their brother Narayana, the second defendant, would have had. ( 12 ) IT is stated above that son Venkataswamy had predeceased his father Venkataramanappa. Venkataswamy died in 1966 and Venkataramanappa, in 1968. In so far as these two plaintiffs are concerned succession had oppened on two occasions, firstly on the death of Venkataswamy, and secondly, on the death of Venkataramanappa. On each occasion, under Sec. 6 of the Act, the Class-I heirs of the concerned would be entitled to shares. Venkataswamy died in 1966 and Venkataramanappa, in 1968. In so far as these two plaintiffs are concerned succession had oppened on two occasions, firstly on the death of Venkataswamy, and secondly, on the death of Venkataramanappa. On each occasion, under Sec. 6 of the Act, the Class-I heirs of the concerned would be entitled to shares. So far as Venkataswamy is concerned, his widow, son and 3 daughters (defendants 1 to 5) and the mother, first plaintiff, fall into that category. Each of them succeed simultaneously to that estate left behind Venkataswamy taking equal shares. As observed by the learned author of mulla's Hindu Law, 15th Edition, page. 930 "the computation of the interest of the deceased co-parcener has to be worked out ascertaining his undivided share on the footing of a notional partition as on the date of his death". As further observed therein" the determination of that share must depend on the number of persons who would have been entitled to a share in the coparcenery property if a partition had in fact taken place immediately before his death and such persons would have to be asertained according to law of joint family and partition". The learned author further observes" the Act regulates succession and does not contain the law of Joint family and partition. The rules of Hindu Law on the subject in force on the death of the coparcener must, therefore, govern the question of ascertainment of persons who would have been entitled to a share on the notional partition". The submission of the learned counsel for the appellants in this regard has to be examined in the light of these observations. ( 13 ) WHEN succession opened on the death of venkataramanappa in the estate left behind him his class-I heirs namely the two plaintiffs and the widow and the children of his predeceased son together would take one share each. His widow and daughter each would take one share. This means that the plaintiffs 1 and 2 each would take l/3rd and Venkataswamy's wife and children together take 1/3rd in the estate left behind by Venkataramanappa. The shares will have to be worked out by applying the principles referred to above. His widow and daughter each would take one share. This means that the plaintiffs 1 and 2 each would take l/3rd and Venkataswamy's wife and children together take 1/3rd in the estate left behind by Venkataramanappa. The shares will have to be worked out by applying the principles referred to above. Had there been a partition at the time of venkataramanappa's death in the joint family consisting of himself and the widow and children of his deceased son, Venkataramanappa would have been entitled to 1/2 share and his deceased son's widow and children together would have been entitled to 1/2 share. In the circumstances, quantification of the shares of the parties to the suit in the estate left behind by Venkataramanappa does not pose any big problem. As stated above, each branch would take l/3rd of 1/2 of the plaint schedule property on account of the death of Venkataramanappa. ( 14 ) NOW, to consider the submission of the counsel for the appellants referred to at para-11 above. It is true that under Sec. 8 of the Act of 1933 at a partition of joint family properties between a person and his son or sons, his mother, his unmarried daughters and the widows and unmarried daughters of his predeceased undivided sons and brothers who have left no male issue shall be entitled to shares with them. It was argued by the learned counsel for the respondents that this provision cannot be applied in working out the shares in the estate left behind Venkataswamy. According to him, the plaintiffs' claim has to be examined and their shares worked out only in accordance with the provisions of the Act and the Act of 1933 cannot make any dent into this at all. He also argued that the Act can be said to have impliedly repealed this provision-Section 8 of the Act of 1933. On the other hand it was argued by the learned counsel for the appellants that Sec. 8 of the Act of 1933, and the provisions of the Act operate in different spheres. The Act deals with the question of succession, whereas the Act of 1933 confers certain benefits to the widows and unmarried daughters in joint family properties and in particular at the time of partitioning of the joint family properties. The Act deals with the question of succession, whereas the Act of 1933 confers certain benefits to the widows and unmarried daughters in joint family properties and in particular at the time of partitioning of the joint family properties. It is his case that notional partition envisaged under Sec. 6 of the Act will have to be made as if it was an actual and total partition. ( 15 ) THE only property Venkataswamy held at the time of his death was his undivided interest in the properties of the joint family consisting of himself, his wife and children on the one hand and his father and mother on the other. Venkataswamy's interest in the family properties will have to be computed on the footing of a notional partition as referred to at para-12 above. Had there been a partition at the time of his death, his branch consisting of himself, son and 3 unmarried daughters and his wife would have had 1/2 share in the joint family properties. While working out his interest in this share to which his branch was entitled to, we have to envisage another notional partition taking place amongst the members of this family (this branch of Venkataswamy ). As referred to above, the appellants' contention is that in this partition under Sec. 8 of the Act of 1933 daughters of Venkataswamy each will have had a share and ascertaining that first and deducting the same the remaining will have to be equally divided between Venkataswamy and his son. There is considerable force in this submission. There is no merit in the contention of the learned counsel for the respondents that the act of 1933 is not attracted to a situation like this and that applying the rule underlying Sec. 8 of the Act of 1933 would result the daughters getting their shares in Venkataswamy's estate twice over and that has to be avoided in the ends of justice and equity. Also as was argued by him, it cannot be said that Sec. 8 should be taken as having been impliedly repealed by the act. As observed by the learned Author in the mulla's Hindu Law (extracted at para 12 above) the provisions of the Act only regulate succession and do not deal with the questions concerning the status of joint family, partition etc. As observed by the learned Author in the mulla's Hindu Law (extracted at para 12 above) the provisions of the Act only regulate succession and do not deal with the questions concerning the status of joint family, partition etc. In working out the shares envisaging a notional partition, the rules of Hindu Law on the subject in force at the time of the death of the co-parcener must be taken into consideration. In the circumstances, the act of 1933 by which these parties were governed during the year 1966 will have to be kept in view in this context. Even if it is somewhat advantageous to the daughters that has to be welcomed, as observed by the learned Chief Justice Sri Chandrachud GURUPADKHANDAPPA magdum vs. HIRABAIKHANDAPPA MAGDUMA others (A. I. R. 1978 S. C. 1239 (See paragraphs 13 and 14 of that Judgement ). ( 16 ) IN this view in the aforesaid notional partition each of the 3 daughters of Venkataswamy would have taken 1/4 of what her brother would have got. Her brother and her father were entitled to equal shares. In this view each daughter would be entitled to 1/11 share out of the properties of this branch of the family. The total shares to which these daughters would have been entitled to was 3/11. This will have to be first deducted and the remaining will have to be equally divided between father Venkataswamy and son Narayana. In this way Venkataswamy would have had 4/11 share in the 1/2 share of the joint family. Thus, in the total joint family property i. e. , plaint schedule properties he would have been entitled to 4/22 share. On his death, being Class-I heirs, his widow, children and his mother were entitled to succeed. Each take equally. This means that the share to which the first plaintiff is entitled to in the estate left behind Venkataswamy is 4/22 x 1/6. this comes to 1/33 in the bigger joint family estate. ( 17 ) IN his submissions touching the scope of sec. 22 of the Act, the learned counsel for the respondents made a two fold submission. The first submission is that provision is not attracted to agricultural lands in view of the fact that the term "immovable property" referred to in subsection (1) of Section 22 cannot be said to include agricultural land. 22 of the Act, the learned counsel for the respondents made a two fold submission. The first submission is that provision is not attracted to agricultural lands in view of the fact that the term "immovable property" referred to in subsection (1) of Section 22 cannot be said to include agricultural land. According to him, this is so for the reason that the Act, which is a Central Act, could not have dealt with the question of transfers of agricultural property which was exclusively a State subject. In this connection the learned counsel places strong reliance on a decision of the Rajasthan High court in JEEWANRAM vs. LICHMADEVI and another (A. I. R. 1981 Rajsstan, page 16 ). His second submission is that Section 22 is not attracted to a case involving a concluded transfer, and the aggrieved, if at all, can only take recourse to a suit and cannot arise in this proceeding any objection to the sale deed executed by Lingamma in favour of Venkatamma. ( 18 ) IT is true that entry 18 in the State list-II of the Seventh Schedule to the Constitution of india, which enables the State legislature to make laws refers to, amongst others, the land and transfer and alienation of agricultural land. Entry 5 of List-3, the concurrent list, contains, amongst others, subjects joint family and partition, intestacy and succession and Entry-6 "transfer of property other than agricultural land". In JEEWANRAM's case the High court of Rajasthan is of the view that in view of entry-6 of List III and Entry 18 of List II the parliament is not competent to deal with the transfer of agricultural land, the said subject falling within the exclusive domain of the State legislature and therefore the words immovable property used in Sec. 22 will have to be read as read as excluding agricultural lands. On the other hand, it was argued by the learned counsel for the appellants that the parliament's power to legislate as to succession is covered by entry-5 of List III and in dealing with the question of succession, if incidentally the law provides for pre-emption in the case of proposed transfer of agricultural lands as has been provided under Sec. 22, it cannot be said that the parliament had dealt with the transfer of agricultural lands as such. In this connection he submitted that in examining this question the pith and substance theory shall have to be kept in view. He places reliance on a Division Bench ruling of this Court in BASAVANT GOUDA vs. SMT. CHANNABASAWWA and ANOTHER (A. I. R. 1971 Mysore, page 151 at Paragraph-11 ). He also places reliance on two decisions of the Supreme Court (i) SMT. SURASAIBA- lini DEBI vs. PHANINDRA MOHAN majumdar (A. I. R. 1965 S. C. 1364 ). (ii) waman SHRINIWASKIN1 vs. RATILAL bhagwandas and CO. , (A. I. R. 1959 S. C. 689 ). ( 19 ) AS stated at para-13 above, on the death of her husband Venkataramanappa, having succeeded to his interest in the joint family, the first plaintiff was entitled to 1/6 share therein (in the entire joint family properties ). As stated at para-17 above, having succeeded to. his sons estate on his death, she was entitled to 1/33 share in the joint family properties. The interest thus she had acquired in the joint family properties had been transferred by her to her daughter, second plaintiff, during the pendency of this proceeding. ( 20 ) IS the transfer by the first plaintiff of her interest in the property to which she had succeeded void under Sec. 22 of the Act is the question now. Sec. 22 of the Act reads:"22 (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 conjection with others, devolve 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. The contention of the learned counsel for the appellants is that since the sale has come about without complying with the mandatory requirements of Sec. 22 (1) the Court has to ignore that transfer declaring it as illegal and that on that footing the shares of the parties have to be worked out. If that is done, he contends, that to what the 2nd plaintiff would be entitled to in the suit is her own 1/6th share in the joint family properties, it being 1/3rd of her father's 1/2 share, and not her share plus the share she has obtained on trasnfer from her mother. ( 21 ) BEFORE examining the aforesaid contention of the learned counsel for the appellants on its own merits, let us find out as to whether sec. 22 of the Act is not at all attracted to the case of agricultural lands as is being contended by the learned counsel for the respondents. In my view, there is no merit in this submission. With great respect I am unable to agree with the views expressed in JEEWANRAM'a case by the Rajasthan High Court. In incorporating sec. 22 in the Act the Parliament cannot be said to have encroached upon the rights of the State legislature in any manner. The Act does not deal with transfers pertaining to agricultural lands as such. It mainly provides rules and guidelines in the matter of succession amongst those governed by that law. This is the pith and substance of the Act. Only incidentally, in order to avoid certain complications that may arise by one of the co-heirs transferring his or her rights in the property to which she was entitled to succeed, this safeguard in the form of sec. 22 is provided for. The main object underlying the principle embedded in Sec. 22 is to provide for a smooth succession to the property of the intestate amongst the various heirs. This aspect is high-lighted, though slightly in a different context, in a Division Bench decision of this Court in BASAVANT GOUDA vs. SMT. CHANNABASAWWA and ANOTHER (A. I. R. 1971 Mysore, page 151 ). This aspect is high-lighted, though slightly in a different context, in a Division Bench decision of this Court in BASAVANT GOUDA vs. SMT. CHANNABASAWWA and ANOTHER (A. I. R. 1971 Mysore, page 151 ). There, the argument was that the Act itself was not applicable to agricultural lands. It was contended that under entry 18 in list II of VII schedule of the Constitution, it was only the State legislature that was competent to make a law in respect of agricultural lands and therefore the Act even in the matter of succession can deal with agricultural lands. This argument was repelled by this court and I may usefully extract para-11 of the judgement. "ft. Mr. Savanur lastly contended that the hindu Succession Act itself is not applicable to agricultural lands because entry 18 in List II of the Seventh schedule of the Constitution, confers power on the State Legislature to make legislation in respect of agricultural lands. Hence Hindu Scuccession Act passed by the parliament could not apply to sucession to agricultural lands. This argument is merely to be stated for being rejected. Entry 5 of List III of the Seventh Schedule of the Constitution deals with the power to legislate in respect of marriage and divorce; infants and minors; adoption; wills, intestacy and succession; joint family and partition; all matters in respect of which parties in judicial proceedings were immediately before the commencement of the constitution subject to their personal law. It may be noticed here that the corresponding entry 7 in the Government of India Act. 1935. List III read as follows:"wills, intestacy; and succession, save as regards agricultural land. "it is significant that in Entry 5 in the Constitution the words "save as regards agricultural lands" have been omitted. The pith and substance of the Hindu Succession Act is to make a law relating to succession and not to deal with agricultural lands as such. That is the reason why the argument of Mr. Savanur requires no further consideration. The provisions of Section 14 of the Hindu Succession Act are matters which come within the ambit of Entry 5 in List iii of the Seventh-Schedule of the Constitution and their applicability to agricultural lands cannot be excluded. This view of ours finds support in the decision Amar Singh v. Beldev Singh, air 1960 Punj. 666 (FB) and Shakuntala Devi. v. Beni Madhav, AIR 1964 All. 165 ". This view of ours finds support in the decision Amar Singh v. Beldev Singh, air 1960 Punj. 666 (FB) and Shakuntala Devi. v. Beni Madhav, AIR 1964 All. 165 ". ( 22 ) THOUGH Section 22 is attracted to the transfers involving agricultural lands or interests therein, the question that further arises for consideration is as to whether the transfer in question comes within the mischief of that provision. The answer to this question depends upon the ambit of Sec. 22. The section provides no bar to transfers as such. It only provides that if one of the heirs proposes to transfer his inteiest in the property or business he should give the first option or a preferential right to other co-heirs to acquire the interest proposed to be transfered. It comes into play only where more than one heir succeeds to an estate. There is no bar to a single heir succeeding to the estate transferring his right. The intention behind this provision, it appears, is to prevent at that stage outsiders from meedling with the property left behind the deceased on the strength of that transfer. In several instances where a male Hindu dies having at the time of his death an interest in a mitakshara co-parcenery property, his heirs, specified in the proviso to Sec. 6 who are entitled to succeed to his estate may continue to live jointly without causing any disruption in the family or management of the estate and this may be for various reasons. A stranger purchasing the interest of one of the heirs may not have the same sentiments and background and his interference may cause a lot of annoyance and hardship to the other members of the family. As a matter of caution to prevent such things happening the legislature, has reserved this preferential right to the other heirs to acquire the interests sought to be sold by one of the heirs. This provision, in my view, will not apply in the case of a transfer by one heir in favour of another co-heir as in this case. As a matter of caution to prevent such things happening the legislature, has reserved this preferential right to the other heirs to acquire the interests sought to be sold by one of the heirs. This provision, in my view, will not apply in the case of a transfer by one heir in favour of another co-heir as in this case. My view also finds support from the following observations of the learned Author of Mulla's Hindu Law, 15th Edition at page 1029: "this section appears to have been thought necessary as an antidote to the inconvenient effects sometimes resulting from transfer to an out-sider by a coheir of his or her interest in property simultaneously inherited along with other coheirs. . . . . . . ". "probably the operation of the rule was meant to apply to an out and out sale of the iterest or a gift of the same to an outsider. Sub-Section (2) would seem to indicate that intention". ( 23 ) HOWEVER, it was argued that the transfer envisaged in Sec. 22 includes a transfer amongst or between co-heirs inter se and that sub-section (3) of Sec. 22 supports that view. In my view sub-section (3) does not spell out any such intention. That only provides as to who, in a case where more than one heir is willing to purchase the share proposed to be sold, should be preferred. Sub-section (3) says that in such a case choose the one who offers the highest consideration. In fact this provision also lends support to what I have stated above. The competition envisaged is between co-heirs and not between the heirs on the one hand and outsiders on the other. At any rate, the intention is not that the person proposing to transfer should get the maximum price. If that was so, sub-section (3) would not have merely referred to "the two or more heirs". The transfer in the instant case being one from one heir to the other coheir, Sec. 22 is not at all attracted. ( 24 ) THE judgement of the lower appellate court requires to be slightly modified in so far as the allotment of shares in the movables also are concerned. In the B-schedule movables have been included a sheep, some jewellery, an iron safe, 12 pallas of paddy, 16 pallas of ragi and some cash etc. ( 24 ) THE judgement of the lower appellate court requires to be slightly modified in so far as the allotment of shares in the movables also are concerned. In the B-schedule movables have been included a sheep, some jewellery, an iron safe, 12 pallas of paddy, 16 pallas of ragi and some cash etc. On the death of the aforesaid two male members in the family these womenfolk were living on their own accord, though had not divided the family properties. In the circumstances, it is not clear which of these movables actually belonged to or had been acquired out of the joint family funds. The possibility of one or the other of these women acquiring them out of her own earnings or funds cannot be ruled out. However, the plaintiffs cannot be denied in to their share in the movables the family may have possessed. After considering all aspects of the matter into consideration, I estimate, having regard to the status of that family, that the said family possessed at the time of the filing of the suit movables worth about Rs. 5,000/- in all. The plaintiffs in the instant case are entitled to succeed to their shares in the movables estimated above. ( 25 ) AS stated in para 17, the first plaintiff, who had succeeded to 1/33 plus 1/6 of her shares, on the two occasions referred to above, in these properties, having transferred to the second plaintiff her said shares, the second plaintiff is entitled to those shares plus her own 1/6 share. Thus, in all she is entitled to 24/66 i. e. , 4/11 share in the joint family properties- both movables and immovables. ( 26 ) THE decree drawn by the court below stands modified as indicated in this judgement. ( 27 ) WITH the aforesaid modification, this appeal is disposed of. Parties to bear their own costs throughout. --- *** --- .