Gadadhar Majhi v. Jurali Mondal — 1985 DIGILAW 391 (CAL)

Judgment : This appeal by the defendant no. 1 is against the judgment .and decree passed in Title Appeal No. 33 of 1971 by the learned Subordinate Judge, Purulia, affirming those of the learned Munsif, Raghunathpur passed in Title Suit No. 151 of 1970. 2. The relevant facts are as follows : The suit-plot, being plot no. 1153 measuring 25 decimals, originally belonged to two brothers, Prahlad Mondal and Gobinda Mandal, each having a moiety share therein. By arrangement Prahlad possessed the eastern 12½ decimals and Gobinda the western 12½ decimals Subsequently Prahlad settled his moiety share to Gobardhan Majhi, father of the present defendant no. 1 Gadadhar Majhi and Gobinda settled his portion to Ananta Mandal, father of the plaintiff Ananta having expired sometime in 1350-51 B. S, his portion of the land, viz, the western 12½ decimals of the suit-plot, was inherited by the plaintiff (his son), widow Phulkumari alias Phulkomani, predeceased son Bonku's widow Paribala (defendant no. 4) and pre-deceased son Mansaram's sons Santosh (defendant no. 2) and Sunil (defendant no 3). Ananta also left the defendant no. 5 Sami Mandulini as his daughter, but under the existing law she was not her father's legal heir. Thus, on Ananta's death his properties including the western 12/½ decimals of the suit plot were inherited by the plaintiff and his other legal heirs, each having 1/4th shale therein. 3. The plaintiff filed it suit for partition in respect of his 1/4th share in the properties including the western half of the suit-plot, being Title Suit No 79 of 1951, though by mistake the area of the western portion of the suit plot was described in the schedule to the plaint as 10 decimals instead of 12/½ decimals. 4. The suit was decreed in preliminary form on June 28, 1952 declaring the plaintiff's 1/4th share in the properties and the final decree was passed on July 29, 1954. 5. According to the plaintiff the defendant no. 1 during the pendency of the suit purchased the interests of some of his co-heirs including 12/½ decimals of land out of the western 12/½ decimals of the suit plot, the remaining 10 decimals having been allotted to the shares of the plaintiff and his mother Phulkumari. 6. 5. According to the plaintiff the defendant no. 1 during the pendency of the suit purchased the interests of some of his co-heirs including 12/½ decimals of land out of the western 12/½ decimals of the suit plot, the remaining 10 decimals having been allotted to the shares of the plaintiff and his mother Phulkumari. 6. Phulkumari died in 1373 B. S. and on her death the plaintiff filed another suit for partition being Title Suit No 74 of 1967 in respect of the properties left by her including 2/½ decimals of land out of the western 12/½ decimals of the suit plot, which was not included in the previous suit by mistake. In the said suit, which was decreed in the preliminary form on November 18, 1968 in presence of the present defendant no. 1 Gadadhar and his father Gobardhan (defendants nos. 2 and 1 respectively in the said suit) and ex parte against the rest, the plaintiff got 2/½ decimals of land cut of 7/½ decimals from the western half of the suit-plot 5 decimals belonging to his mother and 2/½ decimals left out by mistake in the previous suit) and in that way he became owner to the extent of 7/½ decimals of land out of the western 12/½ decimals of the suit plot, since in the first suit for partition he got 5 decimals and in the second suit 2½ decimals. The remaining land measuring 5 decimals was purchased by the defendant no. 1 Gadadhar and the defendant no. 6 Lalmohan from Santosh (defendant no, 2), Sunil (defendant no. 3), Paribala (defendant no. 4) and Sami Mandalani (defendant no. 5) by registered deeds. The defendant no. 1 made his purchases between June 26, 1967 and September 5, 1967 and the purchase made by the defendant no. 6 was dated May 27, 1967. 7. In the instant suit the plaintiff has claimed his preferential right to purchase the 5 decimals of land out of the western half of the suit-plot which the defendants nos. 1 and 6 have purchased from his other coheirs. 8. The defendant no. 1 contested by filing a written statement. The defence inter alia was that the suit was bad in the absence of proper description of the land sought to be pre-empted. According to him the defendants nos. 2 and 3, viz. 1 and 6 have purchased from his other coheirs. 8. The defendant no. 1 contested by filing a written statement. The defence inter alia was that the suit was bad in the absence of proper description of the land sought to be pre-empted. According to him the defendants nos. 2 and 3, viz. Santosh and Sunil (who inherited 1/4th share in the properties left by Ananta Mandal through their father late Manasharam Mondal, a predeceased son of Ananta) during their minority sold their entire share in the suit plot through their mother Menaka for legal necessity by a registered deed to his father Gobardhan Manjhi in the year 1953. 9. Badku, another son of Ananta, having died leaving his widow Puribala as his sole legal heir. Paribala also for legal necessity sold her 1/4th share out of the western half of the suit-plot to Gobardhan Majhi by a registered deed in the year 1953. Gobardhan obtained physical possession of the land so purchased by him. 10. On the death of Phulkumari, the mother of the plaintiff, her interest in the suit-plot was inherited by the plaintiff, Santosh and Sunil and daughter Sami each set having 1/3rd share in respect thereof. According to the defendant no. 1, he purchased only the 1/3rd share of Santosh and Sunil which they inherited from their paternal grandmother Phulkumari, by a registered deed. 11. The plaintiff, according to the defendant no. 1, has no preferential right to purchase the suit-land and that the suit is also barred by limitation. 12. The learned trial Court having decreed the suit, the defendant no. 1 moved up in appeal, which having been proved to be abortive, he has now come up in appeal before this Court. 13. Appearing on behalf of the appellant Mr. Chatterjee, the learned Advocate, made three-fold contentions, viz., that the suit was not maintainable without the relevant documents of transfer or certified copies thereof, which the plaintiff did not produce, that the transfers having been completed, S. 22 of the Hindu Succession Act was not attracted and lastly his contention was that the suit was hopelessly barred by limitation. 14. On other hand, Miss Chaturvedi, the learned Advocate appearing for the respondent, while assailing the contentions of Mr. Chatterjee, submitted that the transfer deeds in question being in the custody and control of the appellant, it was for him to file the same. 14. On other hand, Miss Chaturvedi, the learned Advocate appearing for the respondent, while assailing the contentions of Mr. Chatterjee, submitted that the transfer deeds in question being in the custody and control of the appellant, it was for him to file the same. She also submitted that S. 22 of the Hindu Succession Act was not only applicable to contemplated transfers but to completed transfers as well. The suit, according to her, is also not barred by limitation. 15. Coming now to the rival contentions of the parties, the instant suit indisputably is one for pre-emption under S. 22 of the Hindu Succession Act. 16. It need not be emphasized that the not too careful drafting of the Section has led to different controversies. It is not only that the Section is silent about the procedure to be adopted by the non- transferring co-heir in the mailer of exercising his right to pre-empt, it does not also indicate the remedy of such co-heir or heirs where the transfer has already been effected Furthermore, though ex facie it has been made applicable only to proposed or contemplated transfers, it does not provide for service of any notice upon the non-transferring co-heirs by the contemplating transferor. This is possibly one of the most glaring drafting lapses since without such notice it is not normally possible for the non-transferring co heirs to know about any contemplated transfers by the others. This is likely to make the provision rather infructuous, because in most of the cases the prospective pre-emptor or pre-emptors will come to know about the transfers not at the stage it is contemplated but only when it is completed. 17. These drafting lapses have naturally been responsible for many controvertial decisions, some having held that the section contemplates service of notice upon the prospective pre-emptor or pre-emptors and it is also applicable to completed transfers and not only to contemplated transfers as the language of the section indicates. 18. Coming now to the judicial decisions, a learned single Judge of the Madhya Pradesh High Court in Ghewarwala Jain v. Hanuman Prasad, AIR 1981 M. P 250 has held that S. 22(1) and (2) of the Hindu Succession Act apply only to proposed and not to concluded transfers. 18. Coming now to the judicial decisions, a learned single Judge of the Madhya Pradesh High Court in Ghewarwala Jain v. Hanuman Prasad, AIR 1981 M. P 250 has held that S. 22(1) and (2) of the Hindu Succession Act apply only to proposed and not to concluded transfers. This is, obviously, on a technical and narrow interpretation of the language used in sub-s. (1) of S, 22, which ex facie confers the right of pre-emption when "anyone of such heirs proposes to transfer". 19. In this connection the Bench decision of the Kerala High Court in Vallivil Sreedevi v. Svbhadra Devi AIR 1976 Kerala 19, is to the effect that when one of the co-heirs transfers his interest in immovable property in violation of S 22(1), the remedy of the other co-heirs to enforce their preferential right to acquire the transferred interest, is by way of a regular civil suit, since "in case the proposed transfer is effected by one his co-heirs in violation of the right conferred on his co-heirs by sub-section (1), the latter cannot certainly be without a remedy because a legal right must necessarily carry with it, a remedy for enforcing the same". 20. A learned single Judge of this Court in Kanchan Keora v. Gopal Chahdra Ghose, 80 C W N 998= AIR 1977 (NOC) 92, Cal. has taken the view that S. 22 of the Act is also applicable to completed transfers. In doing so, reliance has been placed upon the earlier decision of a learned single Judge of this Court in Sachindra Nath v. Hari Hhusan, 67 CWN 792 where it has been held that right of pre-emption as conferred by S. 22 of the Hindu Succession Act will not be extinguished because the proposal has merged into a transaction. 21. Similarly, a single Judge of the Orissa High Court in Ganesh Chandra v. Rukmani, A I R 1971 Orissa 65 has held that the transferor heir must propose or notify his intention to transfer to other Class I co-heirs and a transfer made without it would be vulnerable even after it is completed on proof by co-heirs who have the preferential right, that the transfer was made without notice of the proposal of transfer to them. 22. 22. The views expressed in the above decisions barring of course, the narrow view taken by the Madhya Pradesh High Court in AIR 1981 M P. 250 (supra), are undoubtedly based on the sound principle of judicial interpretation that a statutory provision should be so interpreted as to give effect to the true intention of the legislature. To quote from Maxwell: "Even where the usual meaning of the words falls short of the object of the legislature, a more extended meaning may be attributed to them, if they are fairly susceptible of it ............ and the modern cues provide many instances of the judges' reluctance to stand upon the letter of a statute. They will not, of course, supply omissions, but where they are faced with a choice between a wide meaning which carries out what appears to have been the object of the legislature more fully and a narrow meaning which carries it out less fully or not at all they will often choose the former" (Maxwell on the Interpretation of Statutes, 12th Edn p. 92). 23. Thus, the language of S.22 of the Hindu Succession Act having failed to bring out the true legislative intent, judicial interpretation thereof came to its rescue and it now seems to be clear that section also applies to concluded transfers and not only to contemplated ones as its language indicates and also that the contemplating transferor should serve notice on his other Class I co-heirs before actually effecting the transfer to a stranger, failing which the intending pre-emptor may have his remedy by way of a suit in a competent civil court after the transfer is concluded. 24. The instant case is a case of concluded transfer by the other Class I co-heirs of the plaintiff. 25. Significantly, in the second suit for partition, being Title Suit No. 74 of 1967 which the present plaintiff instituted for partition of the mother’s 5 decimals of l and in the suit-plot along with other lands, Gobardhan Majhi (father of the present defendant no. 1) and the defendant no. 1 Gadadhar were the defendants nos. 1 and 2 (vide certified copy of the judgment Ext. 2). 1) and the defendant no. 1 Gadadhar were the defendants nos. 1 and 2 (vide certified copy of the judgment Ext. 2). In their written statement which the defendants 1 and 2, viz, Gobardhan and Gadadhar filed in the said suit, it was clearly disclosed that whatever interest Sunil, Santosh and Paribala had in the western half of the suit-plot had been sold by them to the defendant no. 1 Gobardhan Majhi and sub-sequently Sunil and Paribala sold their interest in the land which they had inherited from Phulkumari, to the defendant no. 2 Gadadhar. 26. It father appears from the certified copy of the judgment (Ext. 2) that the defendants nos. 1 and 2, viz, Gobardhan and Gadadhar filed their kobalas in support of their contention that they had purchased the interest of Sunil, Santosh and Paribala in the suit-plot. 27. This apart, the defendant no. 2 Gadadhar (present defendant no.1), who got himself examined as D.W.1 in the said suit (Title Suit no. 74 of 1967) stated on oath that his father Gobardhan had purchased the shares of Santosh, Sunil and Paribala as well as the share of Menoka, mother of Sunil and Santosh, and he was also in possession thereof. The witness also stated that he himself had purchased a portion of the shares of Sunil, Santosh and Paribala and on such purchase got possession of the property (vide certified copy of the deposition Ext. 4). Very significantly, the evidence of Gadadhar in the said suit in his examination in chief was not controverted in cross-examination. 28. It is, therefore, clear that the present plaintiff got more than sufficient notice in the said suit that the present Defendant no.1 and his father Gobardhan Majhi purchased the shares of his other co-heirs in the western half of the suit-plot and that they were also in possession thereof. 29. Thus, though the plaintiff was not served with any notice of the intended transfers by his co-heirs, he got notice thereof after the transfers were concluded, during the pendency of Title Suit No. 74 of 1967 during the years 1967-68. 30. According to Mr. Chatterjee, the learned Advocate appearing on behalf of the appellant, the instant suit is barred by limitation for not having been instituted within one year of the date of taking over possession of the lands in dispute by the defendant no. 30. According to Mr. Chatterjee, the learned Advocate appearing on behalf of the appellant, the instant suit is barred by limitation for not having been instituted within one year of the date of taking over possession of the lands in dispute by the defendant no. 1 and/or his father Gobardhan, within the meaning of Art. 97 of the Limitation Act, 1963. 31. Incidentally, the instant suit is a suit for pre-emption under S. 22 of the Hindu Succession Act and Art 97 of the Limitation Act, 1963 also relates to suits to enforce a right of pre-emption whether the right is founded n law or general usage or on special contract. 32. In a decision of the Bombay High Court it seems to have been held that a suit under S. 22 of the Hindu Succession Act is governed by Art. 137 of the Limitation Act, but Miss Chaturvedi, the learned Advocate appearing on behalf of the respondent frankly conceded that the residuary Art. 137 has no application to a suit. 33. Obviously, Art. 97 being the specific Article applicable to suits for pre-emption, the residuary Art. 113 prescribing a limitation for three years can have no application to suits of such nature. 34. In the connection Mr. Chatterjee, the learned Advocate appearing on behalf of the appellant, referred me to the single Bench decision of the Court in Tarak Das v. Sunil Kumar AIR 1980 Cal. 53 to the effect that a proceeding under S. 22 of the Hindu Succession Act is governed by Art. 97 of the Limitation Act, 1963. It is true that the decision relates to an application under S. 22, but that is of no consequence since Art. 97 of the Limitation Act relates to suits. 35. Considering the circumstances above, I am inclined to hold that a suit under S. 22 of the Hindu Succession Act is governed by Art. 97 of the Limitation Act, 1963. 36. That being so, the plaintiff ought to have filed the instant suit within one year of his date of knowledge that the defendant no. 1 and his father had taken physical possession of the lands sought to be pre-empted. As already stated, the plaintiff derived his knowledge in 1967 when the present defendant no. 1 and his father filed their written statement in Title Suit No. 74 of 1967 and therefore when the defendant no. 1 and his father had taken physical possession of the lands sought to be pre-empted. As already stated, the plaintiff derived his knowledge in 1967 when the present defendant no. 1 and his father filed their written statement in Title Suit No. 74 of 1967 and therefore when the defendant no. 1 Gadadhar deposed in that suit on November 7, 1968. The instant suit was filed on May 22, 1970, i.e. much beyond the period of one year as contemplated by Art. 97 of the Limitation Act. 37. As I find, this aspect of the matter was neither properly considered by the learned trial court nor by the learned lower appellate court. The judgment of the learned trial court is absolutely vague on the point and so far the judgment of the learned lower appellate court is concerned, it suffers from mis-statement of fact. True, that he was of the view that the suit was governed by Art. 97 of the Limitation Act, but he was totally wrong in observing that all the transfers were made during the pendency of the second partition suit filed by the present plaintiff in which the present defendant No. 1 was not a party. As a matter of fact, the present defendant no. 1 Gadadhar, as we have already seen, was defendant no. 2 in the said suit (vide Ext. 2). The learned lower appellate court was also wrong in holding that the plaintiff did not have any knowledge about the transfers in question, since the defendants no. 1 and 2 in the said suit clearly disclosed about the purchases made by them from the plaintiff’s co-heirs. Regarding physical possession of the lands by the defendants nos. 1 and 2, viz., Gobardhan and Gadadhar, the evidence of D.W.1 Gadadhar, as already seen, remained unchallenged in cross-examination. 38. Incidentally, the defendant no. 1 in the instant suit having disclosed in his written statement that it was his father Gobardhan, who had purchased the interests of the co-heirs of the plaintiff as far back in 1953, the plaintiff ought to have verified the said fact by calling for the relevant documents from the defendant no. 1 and/or at least by obtaining certified copies thereof. 39. 1 and/or at least by obtaining certified copies thereof. 39. Be that as it may, even assuming that the transfers were made subsequently as alleged by the plaintiff, the suit being hopelessly time-barred, the learned courts below went absolutely wrong in decreeing the suit in plaintiff’s favour. 40. Thus, though S. 22 of the Hindu Succession Act applies to concluded transfers as well, the plaintiff is not entitled to any relief in the instant suit, it being barred by limitation. 41. The appeal, accordingly, succeeds and is allowed on contest. The impugned judgments and decrees passed by the learned courts below are hereby set aside and the suit being Title Suit No. 151 of 1970, be dismissed on contest. 42. The parties are directed to bear their own costs at all states of the suit up to this appeal. Appeal allowed.