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2012 DIGILAW 1039 (HP)

Ravi Dutt Sharma v. Riaz Ahmad Quresh

2012-12-26

RAJIV SHARMA

body2012
JUDGMENT Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 26.5.2005 rendered by the learned Additional District Judge, Sirmaur District at Nahan in Civil Appeal No.30-N/13 of 2004. It would be apt at this stage to note for the completion of facts that during the pendency of the Regular Second Appeal, respondent-defendant No.2 has died and her legal representatives were brought on record in CMP No. 1609 of 2011. 2. Essential facts necessary for the adjudication of this Regular Second Appeal are that appellants-plaintiffs (hereinafter referred to as ‘plaintiffs’ for convenience sake) filed a suit for possession against the respondents-defendants (hereinafter referred as the ‘defendants for convenience sake). According to the plaintiffs, one Radha Krishan, ancestor of the plaintiffs and defendant No.2, namely, Shakuntla Devi, was owner to the extent of half share in the total property measuring 224.79 square metres bearing Khata Khatauni No. 31/52 to 54, Khasra No. 348 to 352, 352/1, 353, 394, 403 to 405, 346 and 347 situated at Muhal Rajender Nagar, Nahan town, District Sirmaur, H.P. (hereinafter referred to as the ‘suit property’). After the death of Radha Krishan, Yagdutt Sharma and Ruder Dutt Sharma inherited his estate in equal shares. Thereafter, Yogdutt died and his 1/4th share was inherited by defendant No.2 Shankutla. Ruder Dutt Sharma also died intestate and his share was inherited by the plaintiffs. According to the plaintiffs, defendant No.2 through her General Power of Attorney, defendant No.3 Jamshed Ahmad without the knowledge of the plaintiffs and without notice, secretly sold her 1/8th share out of the suit property measuring 224.79 square meters to defendant No.1 Riaz Ahmed Qureshi vide registered sale deed No. 305 dated 31.7.1999 for consideration of Rs.65,000/-. According to the plaintiffs, they were legally entitled to purchase the suit property sold by defendant No.2 to defendant No.1 and they were also entitled to acquire the same under section 22 of the Hindu Succession Act. According to them, defendant No.1 was completely a stranger and was liable to transfer the same in the name of plaintiffs. 3. Suit was contested by the defendants. Defendants No.1 and 3 filed written statement. Defendant No.2 has adopted the written statement filed by defendants No.1 and 3. According to the defendants, plaintiffs have no right to purchase the share of defendant No.2. 3. Suit was contested by the defendants. Defendants No.1 and 3 filed written statement. Defendant No.2 has adopted the written statement filed by defendants No.1 and 3. According to the defendants, plaintiffs have no right to purchase the share of defendant No.2. According to the defendants, case of the plaintiffs is not covered under section 22 of the Hindu Succession Act, 1956 and they were not entitled to purchase the share of defendant No.2. According to them, defendant No.2 had every right to alienate her 1/4th share though she has sold only 1/8th share in the suit property to defendant No.1. 4. Replication was filed by the plaintiffs. Issues were framed by the learned Civil Judge (Senior Division), Sirmaur on 22.5.2001. He dismissed the suit on 28.9.2004. Plaintiffs preferred an appeal before the Additional District Judge, Sirmaur District at Nahan. He dismissed the same on 26.5.2005. It was admitted on the following substantial questions of law: 1. Whether in a suit filed under the provisions of section 22 of the Hindu Succession Act, the right of pre-emption so granted can be exercised only within class 1 heirs interse as held by the courts below or as per the section by persons on whom the property has devolved as Class 1 heirs and if one of such heir 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. If so its effect? 2. Whether the analogous provisions made in section 4 of the Partition Act and Section 44 of the Transfer of Property Act the underlying object and reasons of all legislations being one, all being based on principles embodied in each were to be considered while deciding the question of the right of pre-emption in favour of the plaintiff? 5. Mr. Vinod Gupta has vehemently argued that both the courts below have not properly appreciated oral as well as documentary evidence. According to him, case of the plaintiffs was covered under section 22 of the Hindu Succession Act, 1956, alternatively under section 4 of the Partition Act and under section 44 of the Transfer of Property Act. 6. Mr. Ashok Tyagi has supported the judgments and decrees passed by both the courts below. 7. I have heard the learned counsel for the parties and have perused the records carefully. 8. 6. Mr. Ashok Tyagi has supported the judgments and decrees passed by both the courts below. 7. I have heard the learned counsel for the parties and have perused the records carefully. 8. One of the plaintiffs, Ramesh Kumar has appeared as PW-1. He has tendered in evidence copies of jamabandi for the year 1995-96 Ex.P-1 and Ex.P-2 and copy of sale deed Ex.P-3. Defendant Riaz Ahmed has appareled as DW-1. He has tendered in evidence pedigree table Ex.D-1. Defendant No.2 has succeeded to the estate of Yag Dutt Sharma. Plaintiffs have not succeeded to the estate of Yag Dutt Sharma alongwith defendant No.2. Plaintiffs are not class 1 heirs specified as per Schedule. In view of this, plaintiffs have no preferential right to acquire the suit property. 9. As far as the applicability of section 4 of the Partition Act and under section 44 of the Transfer of Property Act is concerned, this question is no more res integra in view of law laid by their Lordships of the Hon’ble Supreme Court in Gautam Paul versus Debi Rani Paul and others, AIR 2001 SC 61 . Their Lordships while interpreting section 4 of the Partition Act have held as under: “23. We are in agreement with this opinion. There is no law which provides that co-sharer must only sell his/her share to another co-sharer. Thus strangers/outsiders can purchase shares even in a dwelling house. Section 44 of the Transfer of Property Act provides that the transferee of a share of a dwelling house, if he/she is not a member of that family, gets no right to joint possession or common enjoyment of the house. Section 44 adequately protects the family members against intrusion by an outsider into the dwelling house. The only manner in which an outsider can get possession is to sue for possession and claim separation of his share. In that case Section 4 of the Partition Act comes into play. Except for Section 4 of the Partition Act there is no other law which provides a right to a co-sharer to purchase the share sold to an outsider. Thus before the right of preemption, under Section 4, is exercised the conditions laid down therein have to be complied with. As seen above one of the conditions is that the outsider must sue for partition. Thus before the right of preemption, under Section 4, is exercised the conditions laid down therein have to be complied with. As seen above one of the conditions is that the outsider must sue for partition. Section 4 does not provide the co-sharer a right to pre-empt where the stranger/outsider does nothing after purchasing the share. In other words, Section 4 is not giving a right to a co-sharer to preempt and purchase the share sold to an outsider anytime he/she wants. Thus even though a liberal interpretation may be given, the interpretation cannot be one which gives a right which the Legislature clearly did not intend to confer. The Legislature was aware that in a Suit for Partition the stranger/outsider, who has purchased a share, would have to be made a party. The Legislature was aware that in a Suit for Partition the parties are interchangeable. The Legislature was aware that a Partition Suit would result in a decree for Partition and in most cases a division by metes and bounds. The Legislature was aware that on an actual division, like all other co-sharers, the stranger/outsider would also get possession of his share. Yet the Legislature did not provide that the right for pre-emption could be exercised "in any Suit for Partition". The Legislature only provided for such right when the "transferee sues for partition". The intention of the Legislature is clear. There had to be initiation of proceedings or the making of a claim to partition by the stranger/outsider. This could be by way of initiating a proceeding for partition or even claiming partition in execution. However, a mere assertion of a claim to a share without demanding separation and possession (by the outsider) is not enough to give to the other co-sharers a right of pre-emption. There is a difference between a mere assertion that he has a share and a claiming for possession of that share. So long as the stranger/purchaser does not seek actual division and possession, either in the suit or in execution proceedings, it cannot be said that he has sued for partition. The interpretation given by the Calcutta, Patna, Nagpur and Orissa High Courts would result in nullifying the express provisions of Section 4, which only gives a right when the transferee sues for partition. The interpretation given by the Calcutta, Patna, Nagpur and Orissa High Courts would result in nullifying the express provisions of Section 4, which only gives a right when the transferee sues for partition. If that interpretation were to be accepted then in all cases, where there has been a sale of a share to an outsider, a co-sharer could simply file a suit for partition and then claim a right to purchase over that share. Thus even though the outsider may have, at no stage, asked for partition and for the delivery of the share to him, he would be forced to sell his share. It would give to a co-sharer a right to pre-empt and purchase whenever he/she so desired by the simple expedient of filing a suit for partition. This was not the intent or purpose of Section 4. Thus the view taken by Calcutta, Patna, Nagpur and Orissa High Courts, in the aforementioned cases, cannot be said to be good law.” 10. In the present case, defendant No.2 has inherited the property after the death of her husband Yag Dutt Sharma. Therefore, question of right of pre-emption between plaintiffs and defendant No.2 would not arise. According to section 22 of the Hindu Succession Act, an interest in any immovable property of an instate, 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 1 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 and if there are two or more heirs specified in Class 1 of the Schedule proposing to acquire any interest then the heir who offers the highest consideration for the transfer shall be preferred. In this case, necessary requisites are not fulfilled. Suit property is not a completely dwelling house as admitted by the plaintiffs themselves. The property is residential and commercial property. Plaintiffs have not even prayed for the relief under section 4 of the Partition Act or under section 44 of the Transfer of Property Act. 11. Accordingly, both the courts below have correctly appreciated the oral as well as documentary evidence led by the parties. Both the substantial questions of law are answered accordingly. 12. Plaintiffs have not even prayed for the relief under section 4 of the Partition Act or under section 44 of the Transfer of Property Act. 11. Accordingly, both the courts below have correctly appreciated the oral as well as documentary evidence led by the parties. Both the substantial questions of law are answered accordingly. 12. Consequently, in view of the observations and discussions made hereinabove, there is no merit in the Regular Second Appeal and the same is dismissed. There shall, however, be no order as to costs.