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2004 DIGILAW 120 (PAT)

Ram Udar Rai v. Ram Chandra Rai

2004-01-28

NAGENDRA RAI

body2004
Judgment 1. This revision application is directed against the order dated 11.12.2002 passed by the court below in Misc. Case No. 9 of 2000 allowing the application filed by the opposite party under section 22 of the Hindu Succession Act, hereinafter referred to as the Act, directing the petitioner to execute the registered sale deed in favour of the opposite party Ram Chandra Rai within the period specified therein on payment of consideration amount and the interest at the rate of 15% per annum with cost failing which the opposite party would be entitled to get the land executed through the processes of the court. 2. Admitted fact is that one Brahmdeo Rai had two sons, namely, Talebar Rai and Ram Udar Rai, Surauni Devi was the wife of aforesaid Brahmdeo Rai, Talebar Rai had two sons, namely, Ram Shrestha Rai and Ram Chandra Rai (applicant-opposite party) and two daughters, namely, Ram Kali Devi and Binda Devi. The petitioner Ram Udar Rai filed partition suit being Partition Suit No. 8 of 1968 in the court of Subordinate Judge, Muzaffarpur against his father Brahmdeo Rai, nephew Ram Shrestha Rai and Surauni Devi. The said suit was disposed of on compromise on 26.8.1988. Plot nos.3793, 3807 and 3808 along with other plots were partitioned. Schedule-l property was allotted to the petitioner Ram Udar Rai and Schedule-ll property was allotted to Talebar Rai, father of aforesaid Ram Chandra Rai and Ram Shrestha Rai. 37 decimals of lands were allotted to the petitioner from north and the remaining area was allotted to the branch of Talebar Rai. 3. It is also admitted position that there was a further partition between the applicant-opposite party Ram Chandra Rai and his brother Ram Shrestha Rai with regard to the said plot and Ram Chandra Rai got 13 decimals of land out of the lands allotted to his branch and Ram Shrestha Rai also got 13 decimals of land along with other lands and they made construction over the said land. On 14.7.2000 Ram Shrestha Rai, brother of the applicant-opposite party Ram Chandra Rai sold 13 decimals of land allotted to him in the aforementioned plots by registered sale deed for a consideration of Rs. 35,000/-. On 14.7.2000 Ram Shrestha Rai, brother of the applicant-opposite party Ram Chandra Rai sold 13 decimals of land allotted to him in the aforementioned plots by registered sale deed for a consideration of Rs. 35,000/-. Thereafter, the applicant-opposite party filed an application under section 22 of the Act for transfer of the said land on the same terms and conditions, which has been allowed by the court below. In the court below both the parties were given opportunity to adduce evidence and thereafter the matter has been decided as stated above. 4. Learned counsel for the petitioner raised two points. Firstly, he submitted that even if the transfer has been completed, section 22 of the Act is not applicable and the remedy available to the affected person is to file suit and not application under section 22 of the Act and secondly he submitted that already there was partition between the two co-sharers and as such section 22 of the Act cannot be attracted as it was not a case of transfer of interest devolving upon Class-l heirs under the provisions of Hindu Succession Act. 5. Learned counsel appearing for the opposite party, on the other hand, supported the order and also submitted that section 22 of the Act speaks of application and as such the application was maintainable for a relief under section 22 of the Act and even if there was partition, the opposite party is. entitled to get the relief in terms of section 22 of the Act. 6. Section 22 of the Act contains the provision with regard to preferential right to acquire property in the cases mentioned therein. Section 22 of the Act runs as follows:- "22 Preferential right to acquire property in certain cases.- (i) Where, after the commencement of property of an intestate, or in any business carried on by him or her, whether solely or in conjuction with others, devolve upon two or more heirs specified in class l 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. (ii) 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. (iii) If there are two or more heirs specified in class l of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred." 7. Sub-section (1) of section 2 provides, inter alia, that if a person dies intestate and his interest in immovable property devolves upon two or more heirs specified in class l of the Schedule and if any one of the heirs proposes to transfer his or her interest in the property, the other heirs shall have a preferential right to acquire the interest proposed to be transferred. Sub-section (2) provides provision for determination of consideration money. Thus, technically, this section is applicable only in a case where one of the heirs proposes to transfer the land but it is well settled law that this provision is also applicable in the case of concluded transfer. 8. If there is proposal to transfer the land and the party approached the court, then the appropriate remedy is by filing application and the court will decide the controversy. Once the transfer has been completed, the transferee acquires title over the land and the document has to be avoided before the relief is granted in terms of section 22 of the Act. In other words, the sale is voidable one. 9. This question was considered by the division Bench of the Kerala High Court in the Valliyil Sreedevi Amma vs. Subhadra Devi reported in AIR 1976 Kerala 19, wherein it has been held that once the transfer has been completed then it is voidable one and not void and the remedy of the other co-heirs to enforce their preferential right under section 22(1) to acquire the transferred interest is by way of a regular civil suit before the competent civil court and not by way of an application under section 22 (2) of the Act. 10. 10. l fully agree with the aforesaid view as unless the document is declared to be voidable no relief can be granted and that can be granted only in a regular suit to be instituted for declaring the document to be void. 11. From reading of section 22 of the Act it is clear that the interest of the intestate devolves upon the heirs and if one of the heirs intends to transfer his interest then section 22 of the Act is applicable. In this case, admittedly, there is partition and the applicant-opposite party and having separate possession over the land. In such a situation, section 22 of the Act cannot be attracted. In this connection, reference may be made to the judgment of the learned single judge of Orissa High Court in the case of Bhagirathi Chhatoi vs. Adikand Chhatoi, reported in AIR 1988 Orissa 285, wherein it has been held that right under section 22 of the Act cannot be exercised after partition between the co-heirs. 12. I fully agree with the view taken in the aforesaid case. Thus, on these two grounds the application filed by the applicant-opposite party is held to be not maintainable. Accordingly, the impugned order passed by the court below is set aside. 13. In the result, this revision application is allowed.