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2008 DIGILAW 347 (ORI)

Bina Sukla v. Meena Devi Panch

2008-04-22

A.K.PARICHHA

body2008
JUDGMENT :- Plaintiff is in appeal against the judgment passed by learned 2nd Additional District Judge Puri in Title Appeal No. 4/80 of 1995/92 reversing the judgment and decree of learned Addl. Subordinate Judge, Puri recorded in Title Suit No. 6/78 of 1990/86-1. 2. Plaintiffs case was that her father Pandit Jagannath Prasad Sarma got the land and house under Municipal Holding No. 924 (Ward No. 4, Circle No. 5) located by the side of the Grand Road of Puri town by way of a gift dated 18-12-1946 from the Mahanta of Emar Math, Puri for meritorious service. The father of the plaintiff thus possessed the suit land and house and in course of time raised 2nd and 3rd, stories in the said building. Then he died in 1962. He was survived by his widow Golaprani Sharma and two daughters, namely, Bina Sukla (plaintiff) and Bimala Jharkhadia (defendant No. 1). These 3 heirs effected partition of the properties of late Jagannath Prasad Sarma and in that partition the above said house and land fell to the share of the plaintiff and widow Golaprani Sarma. The northern half fell into the share of the plaintiff and southern portion fell into the share of widow-Golaprani, Golaprani remained in exclusive possession of her share and realized rent from the tenants including Sagarmal Panch. Golaprani died on 1-1-1979 and her share devolved upon the plaintiff and defendant No. 1 jointly. There was an eviction proceeding against Sagarmal Panch and in order to frustrate that eviction proceeding, the daughter-in-law of Sagarmal Panch persuaded defendant No. 1, who was married and staying at Jhansi to execute a sale deed for her share in the suit house and in collaboration with defendant No. 1 got two sale deeds executed showing transfer of the share of defendant No. 1. Then on the strength of the said sale deeds, the vendees defendants 2 and 3 tried to realize monthly rent from tenants Sagarmal Panch and Syndicate Bank, Puri branch. They also tried to disturb the possession of the plaintiff from the suit house and land. The plaintiff, therefore, filed the suit for declaring the said sale deeds executed by defendant No. 1 in favour of defendant Nos. 2 and 3 as invalid and for a decree of pre-emption giving her the right to purchase the undivided share of defendant No. 1. The plaintiff, therefore, filed the suit for declaring the said sale deeds executed by defendant No. 1 in favour of defendant Nos. 2 and 3 as invalid and for a decree of pre-emption giving her the right to purchase the undivided share of defendant No. 1. She also prayed to injunct the defendants from interfering in her possession over the suit property. 3. Defendant No. 1 did not file written statement and was set ex parte. Defendants 2 and 3 in the joint written statement admitted that the suit house and land belonged to Jagannath Prasad Sarma and that on his death it was partitioned among the widow Golaprani and the two daughters and that the northern half fell to the share of the plaintiff and southern fell to the share of Golaprani. They also admitted that on the death of Golaprani, her share devolved on the plaintiff and defendant No. 1. They, however, averred that the plaintiff and defendant No. 1 effected amicable partition wherein the eastern half of the share of late Golaprani described in A, D, X and Y of the map was allotted to the share of defendant No. 1 and the western half described in B, C, X, Y was allotted to the share of the plaintiff and after such partition defendant No. 1 became the exclusive owner of her share and because she was in dire need of money for her daughter's marriage, she sold her share described in the map as A, D, X, Y to them for due consideration. They also pleaded that before selling this property to them, defendant No. 1 offered to sell the property to plaintiff and her husband, but the plaintiff and her husband did not respond to the offer and in the process they lost their right of re-purchase under Pre-emption. Defendants 2 and 3 also challenged the maintainability of the suit on the plea that it is not in the proper form and there was no cause of action. 4. From the pleadings of the parties learned trial Court framed as many as six issues. The plaintiff examined three witnesses and produced documents, which were marked as Exts. 1 to 5. Defendants examined two witnesses including defendant No. 1 as D. W. 1 and produced letters and documents, which were marked as Exts. 4. From the pleadings of the parties learned trial Court framed as many as six issues. The plaintiff examined three witnesses and produced documents, which were marked as Exts. 1 to 5. Defendants examined two witnesses including defendant No. 1 as D. W. 1 and produced letters and documents, which were marked as Exts. A to K. On consideration of the pleading and evidence, the trial Court came to hold that the share of late Bimala Jharkhadia devolved upon the plaintiff and defendant No. 1 after her death on 1-1-1979, that there was no partition of this property between plaintiff and defendant No. 1, that there was no prior intimation or notice or offer from defendant No. 1 to the plaintiff before execution of the sale deeds in favour of the defendants 2 and 3; that there has been no waiver of the right of pre-emption from the side of the plaintiff; that the plaintiff has a right of pre-emption in respect of the share of defendant No. 1; that sale deeds dated 28-5-1986 are invalid. With such findings learned trial Court decreed the suit declaring the sale deeds invalid, granting right of pre-emption to the plaintiff in respect of the share of defendant No. 1 and restraining the defendants 2 and 3 from interfering in the possession of the plaintiff over the suit property. Defendants 2, 7, 3 carried appeal. The first appellate Court after considering the case of the parties confirmed the findings of the trial Court that the property of late Bimala devolved on plaintiff and defendant 1 and that this property had not been partitioned between the plaintiff and defendant No. 1. The said Court, however, ruled that the decree granted by the trial Court is unsustainable as the provision under Order 20, Rule 14, C.P.C. was not complied and the trial Court did not given finding on all the issues as is required under Order 20, Rule 5, C.P.C. The said judgment and decree of the first appellate Court is under challenge in this appeal. 5. 5. At the time of admission the following substantial questions of law were formulated for consideration in this appeal : (i) When plaintiff and defendant No. 1 are Class-1 heirs having jointly inherited the property whether the sale by defendant No. 1 in respect of specific portion of the property in the absence of partition by metes and bounds is void? (ii) Whether plaintiff has a right to seek for a decree of pre-emption under Section 22(1) of the Hindu Succession Act, even though the sale by defendant No. 1 in respect of the undivided property in favour of a stranger was completed? (iii) Whether the plaintiff is entitled to the reliefs under Section 4 of the Partition Act read with the proviso of Section 44 of the Transfer of Property Act, on the basis of the pleadings and the reliefs claimed in the suit? (iv) Whether the learned lower appellate Court is justified in setting aside the judgment and decree passed by the learned trial Court on the ground that Section 22(1) of the Hindu Succession Act, is not applicable to the instant case as the same is not applicable to a complete transfer? 6. Mr. S. P. Mishra, learned Senior Counsel appearing for the appellant stated that after the concurrent finding of the Courts below that the share of late Bimala on her death devolved upon the plaintiff and defendant No. 1 and that this property had not been partitioned by metes and bounds, the lower appellate Court should have decreed the claim of pre-emption of the plaintiff in respect of the share of defendant No. 1 as Section 22(1) of the Hindu Succession Act, clearly gives such preferential right to a Class-I co-heir. He stated that omission of the trial Court to fix the sale price and give direction to the plaintiff to deposit that amount as per Order 20, Rule 14(1), C.P.C. was not a ground for setting aside the decree as the first appellate Court is also a Court of fact and has the same power as that of the trial Court and it could have passed the decree as per Order 41, Rule 33, C.P.C. when it was found that the suit to enforce the right of pre-emption u/S. 22(1) of the Hindu Succession Act was maintainable. In this regard, he relied on the case of Hashmatrai v. Tarachand, AIR 1979 Bom 95 , Mr. Mishra submitted that the trial Court answered all the issues in the judgment and therefore, the first appellate Court committed gross error in observing that the judgment and decree of the trial Court suffered from non-compliance of the dictum of order 20, Rule 5, C.P.C. He also argued that after the concurrent finding of the Courts below that there had been no partition by metes and bounds in respect of the property of late Bimala, the respondents are precluded from raising the issue of partition between the plaintiff and defendant No. 1 in respect of the property of Bimala particularly when the respondents have not filed any cross-appeal against the concurrent findings of the Courts below on the issue of partition. He further argued that even otherwise the evidence on record do not establish partition of the property of late Bimala between the plaintiff and defendant No. 1. On the issue of maintainability of the suit Mr. Mishra argued that a co-heir can ask for a decree of pre-emption u/S. 22(1) of the Hindu Succession Act even after a complete sale has been effected in favour of a stranger and in this regard relied on the cases of Durgi Padhan v. Raibari Sahu, 64 (1987) CLT 604 and Sarag Podh v. Beti Khari Thapa, 70 (1990) CLT 745. 7. Mr. B. H. Mohanty, learned counsel for the respondents supporting the impugned judgment and decree of the lower appellate Court submitted that there was admission of the plaintiff-appellant about the partition and separate enjoyment of the property by her and defendant No. 1 in respect of the property of their late mother and therefore, the Courts below were not justified in their observation that there had been no partition of the property of late Bimala between the plaintiff and defendant No. 1. He argued that once partition is effected among the co-sharers, the right of pre-emption u/S. 22(1) of the Hindu Succession Act is not available to a co-heir or co-sharer. He argued that once partition is effected among the co-sharers, the right of pre-emption u/S. 22(1) of the Hindu Succession Act is not available to a co-heir or co-sharer. According to him, this right comes to an end as soon as there is a partition in the family among the co-heirs irrespective of the fact that the suit property was not included in that partition, in support of this contention he relied on the case of Bhagirathi Chhatoi v. Adikanda Chhatoi, AIR 1988 Orissa 285, Mr. Mohanty further contended that the decree of the trial Court was unsustainable and was rightly set aside as the said Court did not take into consideration the letters and evidence of defendant No. 1 that the plaintiff and her husband did not avail the offer extended to them for purchase of the share of defendant No. 1. He also contended that the decree in favour of the plaintiff was unsustainable as the trial Court did not mention the consideration amount and the time of deposit to be made by the plaintiff and the plaintiff also failed to deposit any amount. 8. Law is no more res integra that Class-I heirs jointly inheriting a property hold that property as co-owners and one of them can alienate his undivided interest in such property even before a partition by metes and bounds takes place. But it is also settled that one of such co-owners cannot alienate any specific part of such property before partition takes place by metes and bounds. In the instant case, the alienation in favour of defendant Nos. 2 and 3 by defendant No. 1 is in respect of a specific portion of the property left by Golaprani. The claim of the respondents is that such alienation is very much binding as partition had already taken place between the plaintiff and defendant No. 1. The Courts below after considering the pleadings and evidence of the parties came to the concurrent finding that there had been no partition of the property left by Golaprani Sarma between the plaintiff and defendant No. 1. Whenever, there is a concurrent finding of the Courts below on a factual issue, a Court of second appeal is not normally to interfere with the finding. Whenever, there is a concurrent finding of the Courts below on a factual issue, a Court of second appeal is not normally to interfere with the finding. Only when such concurrent finding is tainted with perversity or is based on no evidence, then and then only the finding can be interfered by the Court of second appeal. The judgments of the trial Court and the first appellate Court would show that the Courts perused and discussed the evidence and circumstances and arrived at a conclusion that the property of late Golaprani had not been partitioned by metes and bounds between the plaintiff and defendant No. 1. It is not a case of no evidence or perverse approach. The only allegation raised by learned counsel for the respondents is that there were some admissions of the plaintiff on Misc. Petition No. 51 of 1999 and counter-affidavit in Misc. Petition No. 438 of 2000 filed in this appeal which were not taken into consideration. He claimed that these petitions be accepted as additional evidence. At this stage, there is hardly any scope for misc. petitions to be used as additional evidence as that will deprive the plaintiff of rebutting or explaining the alleged admissions. However, a close reading of the contents of the above noted petitions would show that the plaintiff never made any admission that the property left by her mother-Golaprani was partitioned between herself and defendant No. 1. Demanding a part of the rent collected from the tenants the plaintiff indicated in these petitions that by way of some mutual arrangements she and defendant No. 1 were in enjoyment of portion of the property, and that no partition by metes and bounds had taken place. When, there was no admission of the plaintiff and when the findings of the Courts below were not the result of perverse approach and the conclusion is based on the available evidence, there is no scope for this Court to take a different views on the subject. So, it is now established that there had been no partition of the property left by Golaprani between the plaintiff and defendant No. 1 in that situation, defendant No. 1 was not legally competent to sell away any specific portion of the property. 9. So, it is now established that there had been no partition of the property left by Golaprani between the plaintiff and defendant No. 1 in that situation, defendant No. 1 was not legally competent to sell away any specific portion of the property. 9. The next question is whether the plaintiff has a right of pre-emption under Section 22(1) of the Hindu Succession Act, even though, the sale by defendant No. 1 in respect of the undivided property in favour of a stranger was complete. Section 22 is extracted hereunder : "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 an 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." Learned first appellate Court went into elaborate discussion, analyzed a number of case laws and finally arrived at the conclusion that in case of a complete sale, the coheir can seek address of the civil Court in order to exert right of pre-emption under Section 22(1) of the Hindu Succession Act. Such elaborate discussion was unnecessary because the matter has been set at rest in several decisions of this Court. Such elaborate discussion was unnecessary because the matter has been set at rest in several decisions of this Court. Analyzing the scope of Section 22(1) and (2) of the Hindu Succession Act, in the case of Muralidhar Das v. Bansidhar Das, AIR 1986 Orissa 119, it was said that in case of a complete sale to a stranger the remedy of the co-heir lies in the civil Court of competent jurisdiction. The said view was approved by a Division Bench of this Court in the cases of Bhaskar Chandra Bank v. Bishnu Chandra Pradhan and Benudhar Mohanta v. Manu Mohanta disposed of on 22-9-1986. The view was also endorsed in the case of Drugi Padhan (supra) and Sarag Podh (supra). So, now law is settled that even if the sale is complete, the co-heir can ask for a decree of pre-emption in a civil suit, in the present case, the plaintiff filed a regular suit before the competent Court seeking a decree for pre-emption in respect of the suit property. Therefore, the suit was legally maintainable. 10. Learned counsel for the appellant raised a plea that besides the right of preemption under Section 22(1) of the Hindu Succession Act, the appellant-plaintiff had also right of repurchase of the property sold to defendant Nos. 2 and 3 in view of the provisions of section 44 of the Transfer of Property Act and Section 4 of the Partition Act. The object of Section 44 of the Transfer of Property Act and Sec. 4 of the Partition Act is basically to keep off the stranger, who may purchase undivided share of a co-sharer of an immovable property, so far as his dwelling house is concerned, to make it possible for the co-sharer who has not sold his share to buy up the share purchased by the stranger purchaser. These sections basically relate to dwelling house. If any part of the dwelling house is sold to a stranger by one of the co-owners, then the other co-owner has a right to repurchase it from the stranger-purchaser. These provisions are not strictly applicable to the present case as admittedly the properties sold by defendant No. 1 to defendant Nos. These sections basically relate to dwelling house. If any part of the dwelling house is sold to a stranger by one of the co-owners, then the other co-owner has a right to repurchase it from the stranger-purchaser. These provisions are not strictly applicable to the present case as admittedly the properties sold by defendant No. 1 to defendant Nos. 2 and 3 are portions of the building occupied by tenants Be that as it may, when the property left by Bimala was still jointly held by the plaintiff-defendant No. 1, the plaintiff was legally entitled to pray for a decree of pre-emption in respect of the share of defendant No. 1 in a civil suit. 11. It was canvassed by learned counsel for the respondents that right of pre-emption is not available to a co-owner, who ignored the offer of purchase. According to him, in the present case, there were several letters and evidence of D.W. 1 to show that defendant No. 1 and her husband offered to sell the share of defendant No. 1 to the plaintiff, but the plaintiff and her husband did not avail that offer and therefore, they are precluded now from claiming right of preemption under principle of waiver. In this regard, he indicated the letters Exts. A to E. Defendant No. 1 as D.W. 1 admitted in paragraph-34 of her statement that in the letters and telegrams, there is no mention about sale of the suit property to the plaintiff. She also admitted that the husband of the plaintiff was looking after the landed property and was supposed to pay part of the income of such property to her, but had not paid anything from 1981 to 1986. She also admitted that after the marriage of her daughter was fixed, she intimated the plaintiff and others about the proposed marriage and asked them to come soon. Considering this type of evidence the Courts below said that there was no satisfactory evidence to show that the plaintiff waived any offer made by defendant No. 1 with regard to the sale of the suit property. Such conclusion cannot be called as perverse or based on no evidence. 12. The first appellate Court held that for non-compliance of statutory provision under Order 20, Rule 5 and Order 20, Rule 14(1), C.P.C. the decree passed by the trial Court was not maintainable. Such conclusion cannot be called as perverse or based on no evidence. 12. The first appellate Court held that for non-compliance of statutory provision under Order 20, Rule 5 and Order 20, Rule 14(1), C.P.C. the decree passed by the trial Court was not maintainable. Order 20, Rule 5, C.P.C. says :- "In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons therefor, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit. The judgment of the trial Court would show that issues were formulated and after discussion findings were recorded on each and every issue. So, there is no scope to say that the judgment was not in accordance with the Order 20, Rule 5, C.P.C. 13. Order 20, Rule 14(1), C.P.C. reads as follows : "Order 20, R. 14. Decree in pre-emption-suit : (1) Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase money has not been paid into Court, the decree shall - (a) specify a day on or before which the purchase-money shall be so paid, and (b) direct that on payment into Court of such purchase-money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase-money and the costs (if any) are not so paid, the suit shall be dismissed with costs." As per this provision the Court decreeing a claim of pre-emption shall specify a day on or before which the purchase money shall be so paid and also direct that on payment into the Court of such purchase money together with cost. If any, on or before the day so fixed, the defendant shall deliver possession of the property to the plaintiff and if the purchase money is not so paid, the suit shall be dismissed with costs. In the present case, the trial Court directed the plaintiff to deposit the money but did not signify the date and time. If any, on or before the day so fixed, the defendant shall deliver possession of the property to the plaintiff and if the purchase money is not so paid, the suit shall be dismissed with costs. In the present case, the trial Court directed the plaintiff to deposit the money but did not signify the date and time. It was no doubt a defect, but the first appellate Court being the Court of fact and having same power as that of the trial Court was competent to give proper direction in that regard in exercise of power under Order 41, Rule 33, C.P.C. So, on this score it was not proper to set aside the judgment and decree and prolong the litigation. 14. The substantial questions of law are answered accordingly. In view of the foregoing discussion and conclusions the judgment and decree of the first appellate Court is unsustainable and is set aside. The decree of pre-emption granted by the trial Court in favour of the plaintiff is confirmed, but for issuance of necessary direction under Order 20, Rule 14(1), C.P.C. The matter will go back to the first appellate Court which shall quantify the sale amount and record necessary orders as per Order 20, Rule 14(1), C.P.C. 15. The appeal is accordingly allowed on contest, but in the above noted circumstances without any cost. Appeal allowed.