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2009 DIGILAW 434 (AP)

Akkammagari Bheemamma v. Akkammagari Balamma

2009-07-07

L.NARASIMHA REDDY

body2009
ORDER The petitioner filed O.S.No. 31 of 1977 in the Court of Senior Civil Judge, Mahabubnagar, against her mother - the 1st respondent, and 15 others, for the relief of partition and separate possession of the suit schedule properties. Eleven years thereafter, she filed IANo. 606 of 1988 under subsection (2) of Section 22 of the Hindu Succession Act, 1956 (for short 'the Act') , with a prayer to enable her to exercise the right of preemption, in respect of an item of property sold by the 1st respondent in favour of respondent NO.16. It was alleged that the 1st respondent executed a sale deed, dated 21-01-1985, in favour of respondent No.16, alienating an item of property, detrimental to the interests of the petitioner. The application was opposed by respondents 1 and 16. Through its order, dated 14-09-1999, the trial Court dismissed the I.A. Hence, this C.R.P. 2. Heard Sri Vijay Kumar Heroor, learned counsel for the petitioner, and Sri S. Niranjan Reddy, learned counsel for the contesting respondents. 3. The record discloses that while admitting the C.R.P., this Court did not grant any interim order. In all likelihood, the suit may have been disposed of long back. Learned counsel for the parties are not sure, on this aspect. Be that as it may, the questions raised by the petitioner, need to be answered. 4. The relationship between the petitioner and the respondent is not in dispute. One of the items of schedule property is said to have been sold through sale deed, dated 21-01-1985. The I.A. filed by the petitioner is for conferment of right, enabling her to exercise the preemptive right under Section 22 of the Act. There is absolutely no controversy that Section 22 of the Act confers preemptive right upon a co-parcener to purchase the share of another, in case the latter intends to sell it. 5. A question was raised before the trial Court, as to whether such a right is available as regards agricultural lands. On finding that there is no distinction between the agricultural lands and other properties, the question was answered in favour of the petitioner. 6. What is conferred under Section 22 of the Act is a substantive right. It has to be worked out separately and independently. In a suit for partition, may be filed by the petitioner herself, she cannot canvass her right under Section 22 of the Act. 6. What is conferred under Section 22 of the Act is a substantive right. It has to be worked out separately and independently. In a suit for partition, may be filed by the petitioner herself, she cannot canvass her right under Section 22 of the Act. The parameters for adjudication of a suit for partition, on the one hand, and the right of preemption under Section 22 of the Act, on the other hand, are totally different and independent to each other. In Ashutosh Chaturvedi v. Prano Devi and others 2008 (4) SCJ 114 = AIR 2008 SC 2171 , The Hon'ble Supreme Court held that a suit has to be instituted by a co-heir for enforcement of right conferred under Section 22(1) of the Act. Therefore, the application filed by the petitioner does not fit into a suit for partition. Hence, it was untenable. 7. Even otherwise, the petitioner has to overcome a very strong obstacle, viz., the question of limitation. Article 97 of the Schedule to the Limitation Act prescribes one year as the period of limitation, for enforcement of right of preemption. The provision reads as under: Description of suit Period of Time from which Limitation period begins to run To enforce a right of One year When the purchaser preemption whether takes under the the right is founded on sale sought to be law or general usage or on impeached, physical special contract possession of the whole or part of the property sold, or where the subject-matter of the sale does not admit of physical possession of the whole or part of the property, when the instrument of sale is registered." 8. The starting point for computation of limitation is the date on which the possession of the property was taken. The possession is said to have been delivered on the date of sale itself. The contention of the petitioner that Article 137 i.e. residuary clause, must be applied, cannot be accepted. When there is a specific provision under the Limitation Act, covering a situation, resort cannot be had to residuary provision. Even this aspect was dealt with by the Supreme Court in Ashutosh Chaturvedi's case (supra). 9. The trial Court had examined the matter, in detail, and with reference to the principles of law laid down by various Courts. No legal or factual error is pointed out by the petitioner. The C.R.P. is accordingly dismissed. Even this aspect was dealt with by the Supreme Court in Ashutosh Chaturvedi's case (supra). 9. The trial Court had examined the matter, in detail, and with reference to the principles of law laid down by various Courts. No legal or factual error is pointed out by the petitioner. The C.R.P. is accordingly dismissed. 10. There shall be no order as to costs.