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2002 DIGILAW 1353 (MAD)

T. K. Venkatesan v. T. K. Srinivasan

2002-11-07

A.S.VENKATACHALA MOORTHY

body2002
Judgment :- The petitioner and the respondent are the sons of late T.K.Krishna Iyengar, who died on 5.4.1965. 2. The respondent herein filed a suit in O.S.No.485 of 1976 against the petitioner herein on the file of Sub Court, Salem praying the court to grant decree for partition and for separate possession of his half share in all the plaint schedule properties (Schedule A to D) and further direct the petitioner to account for all the amounts set out in paragraphs 7, 8, 10, 11 and 12 and for all the incomes he had received from the family estate in the past and for all the incomes subsequent to the suit and direct payment to him of one half share in the total income. 3. The learned Subordinate Judge, Salem, who tried the said suit, passed a decree declaring that the plaintiff is entitled to partition and separate possession in respect of B and C Schedule properties and that the respondent/plaintiff is also entitled to past mesne profits in respect of B and C Schedule properties for a period of three years prior to the filing of the suit and for future mesne profits. The court also ruled that the plaintiff is not entitled to any relief in respect of A and D Schedule properties. On those findings, the court passed preliminary decree for partition of B and C Schedule properties into two shares and allotted one such share to the respondent/plaintiff. The further clause in the decree reads that the mesne profits for which, the respondent/plaintiff will be entitled to, will be decided under separate proceedings under Order 20 Rule 12 C.P.C. The petitioner/defendant took up the matter further. But however, it reached a finality in L.P.A.No.173 of 1987, in which, a Division Bench of this court held that the respondent/plaintiff would be entitled for the share as declared by the trial court, but however, with regard to the mesne profits, he shall be granted only on and from May-June 1976 and not for any earlier period. Thereafter, the respondent filed I.A.No.588 of 1997 under Order 26 Rule 12 of the Code of Civil Procedure praying the court to pass a final decree. The Subordinate Judge, Salem, disposed of the said application by an order dated 23.3.1998 allotting specific property to both the parties. Thereafter, the respondent filed I.A.No.588 of 1997 under Order 26 Rule 12 of the Code of Civil Procedure praying the court to pass a final decree. The Subordinate Judge, Salem, disposed of the said application by an order dated 23.3.1998 allotting specific property to both the parties. The petitioner questioned the correctness of the same by filing an appeal A.S.No.75 of 1998 before the District Judge, Salem. By judgment dated 19.8.1999, the appellate court disposed of the same with some modification. The petitioner took up the matter further before this court in Second Appeal No.107 of 2000 and the same was dismissed on 4.8.2000 by a learned single Judge of this court. 4. After the disposal of L.P.A.No.173 of 1987 and before the respondent filing final decree petition, the petitioner herein filed O.P.No.1 of 1994 under Sections 22 and 29(c) of the Hindu Succession Act praying the court to pass a decree directing the respondent herein to transfer the properties to the petitioner by way of sale free of encumbrance by receiving a sum of Rs.32,700/- being the value as claimed by the respondent or the value determined by the court to meet the ends of justice. The respondent herein resisted the petition on various grounds. A counter dated 25.1.1995 was filed wherein the respondent made it clear that at no point of time, he entertained a notion to part with his share of the property namely plaint B and C Schedule properties and he further submitted that it is only an imaginary averment made to justify the vexatious petition. 5. Subsequently, that was in 1997, the respondent filed an application in I.A. No.588 of 1997 in O.S. No.485 of 1976 on the file of Sub court, Salem praying the Court to pass a final decree. On 23.3.1998, the said Court passed a final decree. An appeal was filed in A.S. No.76 of 1998 on the file of the District Court, Salem, against the order in I.A. No.588 of 1997. By a Judgment dated 19.8.1999, the learned District Judge confirmed the final decree with modification. The final decree proceedings reached a finality in S.A. No.107 of 2000 on the file of this Court by Judgment dated 4.8.2000. 6. By a Judgment dated 19.8.1999, the learned District Judge confirmed the final decree with modification. The final decree proceedings reached a finality in S.A. No.107 of 2000 on the file of this Court by Judgment dated 4.8.2000. 6. The respondent herein, on 24.10.1999 filed R.E.P.No.18 of 2001 under Order 21 Rule 1 of the Code of Civil Procedure praying the court to deliver possession of the property allotted to him in the final decree through the court Amin under Order 21 Rule 35 of the Code of Civil Procedure. The petitioner herein resisted the same and in the counter statement filed by him he has stated that the execution petition is inexecutable since the description of the properties are not specific and definite and the same cannot be identified. He has also stated in the said counter that he filed O.P.No.1 of 1994 for claiming preferential right as class 1 heir to acquire the share of the respondent in plaint B and C Schedule properties for market value and when such petition is pending, the application for delivery of possession is premature and infructuous and consequently, the application has to be dismissed. 7. Thereafter, the petitioner herein filed an application R.E.A.No.38 of 2002 in R.E.P.No.18 of 2001 under Order 21 Rule 26 read with Section 151 of the Code of Civil Procedure praying the court to stay all further proceedings in R.E.P.No.18 of 2001 in O.S.No.485 of 1976 pending disposal of O.P.No.1 of 1994 on the file of Sub Court, Sankari. The respondent herein filed a counter statement and submitted that O.P.No.1 of 1994 will not lie because property is devolved upon the petitioner and the respondent by testamentary dispossession and that the petition has been filed only to protract the proceedings and prevent the respondent from getting separate possession of suit properties. The learned Subordinate Judge who enquired into the said application R.E.A.No.38 of 2002, dismissed the same by order dated 18.6.2002 holding that the said application has been filed only to drag on the proceedings and that apart, the consideration of O.P.No.1 of 1994 can only be after the final orders are passed in R.E.P.No.18 of 2001. It is as against the said order of the learned Subordinate Judge in R.E.A.No.38 of 2002 in R.E.P.No.18 of 2001 in O.S.No.485 of 1976, the present revision has been filed by the petitioner. 8. It is as against the said order of the learned Subordinate Judge in R.E.A.No.38 of 2002 in R.E.P.No.18 of 2001 in O.S.No.485 of 1976, the present revision has been filed by the petitioner. 8. To examine the claim made by the petitioner, it is necessary that the relevant provision in the Hindu Succession Act is extracted and it is pointed out that to invoke Section 22(1), the conditions to be satisfied by the person who claims such a right. 9. Secondly, this court has to examine whether in the case on hand, the petitioner can claim a preferential right or in other words whether he can satisfy the conditions contemplated in the said Section 22(1). 10. Section 22 of the Hindu Succession Act reads thus:- 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. (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. 11. (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. 11. The following are the matters that are required to be remembered by way of understanding Section 22 (1) of the Hindu Succession Act, viz, (i) The Section applies only in case of immovable properties or business; (ii) This Section can be invoked only when such immovable property or business devolves upon two or more heirs specified in Class I of the schedule; (iii) One of such heirs must propose to transfer his or her interest in the property or business; (iv) The preferential right enacted in this Section is akin to right of pre-emption but is not equivalent of it; (v) The right of a co-heir to transfer his interest in the immovable property or business inherited by him along with other heirs of Class I of a Hindu male is subject to the preferential right of his co-heirs to take the transfer and any transfer in derogation to that right will be voidable at the instance of the other co-heirs, who are denied their preferential right. This is proposed right which is neither transferable nor heritable. Refer:- a) AIR 2000 N.O.C. (5) Madras (Gomathi Ammal vs. P. Muthu Krishnan) (vi) Though the expression 'consideration' and 'acquiring the interest' are used, it does not follow that they are appropriate only in the case of a sale. They may be made to apply to other cases of transfer also. The main objective is to avoid introduction of a stranger perhaps the expression 'transfer' may be interpreted as to exclude transfer where the transferee has no right to obtain possession physically of a part of the property either by partition or otherwise. (vii) The parties to agree for the price, otherwise the same shall be fixed by the Court; (viii) If the person proposing to buy is unwilling to take it for the price determined by the Court, he shall be liable to pay all costs of the application; (ix) In case of plurality of such claims to be preferred as against third parties, the heir, who offers the highest consideration for the transfer, shall be preferred. (x) Any transfer in derogation of the right of a co-heir would be voidable at the instance of that co-heir or co-heirs, who are denied their preferential right. (xi) A regular Suit before competent civil court is the remedy. (xii) A co-heir is saddled with the burden of his right of enjoyment as absolute owner, free to dispose of his interest to whomsoever he pleases is restrained. Refer:- a) 1970 (1) MLJ 358 (Nagammal vs. Nanjammal) b) AIR 1976 Kerala 19 (Sreedevi Amma vs. Subhadra Devi) c) 1997 (1) 115 P.L.R. 576 (Shobha Rani vs. Parshotam Das) 12. Coming to the present case, as already mentioned, the respondent is declared to be entitled for half a share in items 'B' and 'C' schedule properties and final decree is also passed. Now, the respondent has filed Execution Petition, praying the Court to order delivery of possession. 13. The petitioner is not disputing and, in fact, cannot dispute that his father late Krishna Iyengar left the Will dated 17.11.1958, bequeathing his interest in the joint family estate in favour of both the petitioner and the respondent. This is because, he has made a clear admission in para No.4 of the Plaint. Now, the courts have held that 'B' and 'C' schedule properties are joint family properties. Hence, out of the joint family properties, the petitioner and the respondent themselves would be entitled independently for 1/3rd share each. What has been bequeathed by their father is his one-third share. That being so, the claim of the petitioner, that Section 22(1) of the Hindu Succession Act can be invoked by him, cannot be accepted. This is because, Section 22(1) would apply to cases where an interest in any immovable of an intestate devolves upon two or more heirs specified in Class I of the schedule. Or in other words, in as much as the parties got the property viz., 1/3rd share of their father in the joint family properties viz., 'B' and 'C' schedule under a Will, this will be outside the purview of Section 22(1) of the Hindu Succession Act. 14. Even that apart, even in a case where interest in immovable properties of an intestate devolves upon two or more heirs, once there is a partition between them, the right that is given under Section 22 (1) to a co-heir disappears. 14. Even that apart, even in a case where interest in immovable properties of an intestate devolves upon two or more heirs, once there is a partition between them, the right that is given under Section 22 (1) to a co-heir disappears. Refer:- a) AIR 1988 Orissa 285 (Bhagirathi Chhatoi vs. Adikanda Chhatoi) b) (1972) 1 C.W.R. 207 (Kali Charan vs. Champakalata) 15. As far as the present case is concerned, undisputedly the final decree had already been passed. Obviously, after obtaining copy of the final decree, the respondent filed REP No.18 of 2001 under Order 21 Rule 1 of Code of Civil Procedure praying the Court to deliver possession of the property allotted to him in the final decree through the Court Amin under Order 21 Rule 35 of the Code of Civil Procedure. As already pointed out, the respondent in his counter in O.P. No.1 of 1994 on the file of the Sub Court, Sankari, has made it clear that he has no proposal to dispose of the property. In these circumstances, there is no scope for the petitioner for invoking Section 22 (1) of the Hindu Succession Act. 16. Of course, the learned counsel appearing for the petitioner contended that in as much as the petitioner filed the O.P. way back in the year 1994, before proceeding further in the Execution Proceedings, that application may be disposed of and this Court may not go into the merits of the claim in the O.P. 17. The Suit was filed way back in the year 1976. The respondent has been fighting for his share and for possession. It is absolutely necessary that a quietus is given in the matter and that is why this Court has considered the merits of the claims in the O.P. and decided the issue. In fact, this Court put a pointed question to the petitioner's counsel as to what prejudice will be caused to the petitioner in this Court deciding the O.P. on merits in as much as, admittedly, there are no oral and documentary evidence to be let in, in the O.P. Learned counsel for the petitioner is not in a position to give any answer in this regard. 18. In this view of the matter, the Civil Revision Petition is dismissed. 18. In this view of the matter, the Civil Revision Petition is dismissed. The trial court is directed to expedite the Execution Proceedings and in any event complete the same on or before 15th of December, 2002 and report to this Court the compliance of the same. Civil Revision Petition is dismissed with costs at Rs.1,000/- (Rupees one thousand only). This amount shall be paid by the petitioner to the respondent within a period of six weeks from today. This Court is awarding the above costs since it is of the opinion that the petitioner, who is an Advocate, is trying to drag on the proceedings effectively to prevent his brother from taking possession of his share. At the risk of repetition, it has to be pointed out that even after the respondent making it clear in his counter statement that he has no proposal to dispose of the property (that too after a final decree has been passed) still the petitioner insists his O.P. to be considered on merits. Connected C.M.P. shall stand dismissed.