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2001 DIGILAW 1199 (PNJ)

Harbir v. Rajpal

2001-10-24

ADARSH KUMAR GOEL

body2001
JUDGMENT Adarsh Kumar Goel, J. - The appellant-plaintiff filed suit for declaration with consequential relief of injunction stating with the house in dispute was owned by father of the plaintiff and defendants No. 1 and 3 (Balwant Singh), who died in the year 1959 and on 6.6.1989, defendant No. 1 executed a sale deed in favour of defendant No. 2 in violation of injunction order earlier obtained by the plaintiff on 8.6.1989 and, therefore, the plaintiff was entitled to purchase the house under Section 22 of the Hindu Succession Act, 1956 (for short, the Act). The suit was contested by the defendants. 2. The trial Court decreed the suit and held that the plaintiff was entitled to acquire ownership of the share of defendant No. 1 on payment of Rs. 25, 000/- plus stamp and registration charges in view of the provisions of Section 22 of the Act. The appellate Court reversed the decree of the trial Court and dismissed the suit. It was held that the plaintiff had not led any documentary evidence to show that the plot was owned by their father Balwant Singh and was inherited by the plaintiff and the vendor from their father. On the basis of statements of Umed Singh, PW-2 and Harbir plaintiff PW-1, it could not be held that Balwant Singh, father of the plaintiff and vendor Kanwar Bhan, was the owner and the plot devolved upon the plaintiff and Kanwar Bhan as class one heirs. 3. None has appeared for the appellant. 4. Counsel for the respondents has supported the finding of the appellate Court relying on judgment reported in Ghewarwala Jain v. Hanuman Prasad and another, AIR 1981 M.P. 250, which in term follows the judgment of the Kerala High Court in Vallivil Sreedevi Amma v. Subhadra Devi and others, AIR 1976 Kerala 19. 5. After perusing the said judgments, I am of the view that the said judgments do not support the respondents, but merely hold that Section 22(2) of the Act does not apply after transfer of the property and applied only at the stage of proposal, but the judgments make it clear that there is no bar to a suit being filed for enforcement of the preferential right conferred under the said statutory provisions. The trial Court held that the suit property was owned by father of the plaintiff and his brother (the vendor), which finding has been reversed by the appellate Court on the ground that since no documentary evidence has been produced, it could not be held, merely from the statement of the plaintiff and other oral evidence produced, that the suit property was owned by father of the plaintiff and the vendor and the same had been inherited by the vendor from his father. 6. Though no substantial question of law was framed at the time of filing of appeal, on account of judgment of the Full Bench of this Court, according to which procedure of amended Section 100 CPC was not applicable, which has been recently overruled by the Supreme Court in Kulwant Kaur v. Gurdial Singh, 2001(4) SCC 262, I find that a substantial question of law is involved in the matter and proceed to decide this appeal under proviso to Section 100(5) CPC after framing the substantial question of law. The substantial question of law involved in the appeal is "Whether the lower appellate Court erred in setting aside the finding of the trial Court, ignoring the oral evidence without pointing out as to what documentary evidence had not been produced by the plaintiff, in absence of any evidence by the defendants that the suit property had not been inherited by the vendor from his father ?" 7. The evidence led by the plaintiff categorically shows that the suit property was inherited by the vendor from his father. The suggestions given on behalf of the defendants to the witnesses of the plaintiff clearly implies that the property was inherited by the vendor from his father, as the said suggestions are that the property had been partitioned. The appellate Court could not have ignored the oral evidence, which was categoric on the point that the property was inherited by the vendor from his father. Section 22 of the Act, thus, clearly applies. 8. The appellate Court could not have ignored the oral evidence, which was categoric on the point that the property was inherited by the vendor from his father. Section 22 of the Act, thus, clearly applies. 8. Though the finding of the lower appellate Court, taking a view that Section 22 of the Act did not apply, is liable to be set aside, but the question is whether provisions of Section 22 of the Act can be held to be valid after the Supreme Court in Atam Prakash v. State of Haryana, AIR 1986 SC 859 held provisions of Section 15 of the Punjab Pre-emption Act, 1913, which are in pari materia with Section 22 of the Act, to be unconstitutional. Prima facie, it appears that right conferred under Section 22 of the Act cannot be enforced in view of the judgment of the Supreme Court in Atam Prakash (supra). However, since none has appeared for the appellant, the matter need not be discussed further. The appeal is, accordingly, dismissed in default. Appeal dismissed.