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2012 DIGILAW 1496 (PAT)

Kushmi Devi v. Vidyanand Kumar Yadav

2012-10-30

JYOTI SARAN

body2012
ORDER Heard Mr. Lakmesh Marvind, learned counsel appearing on behalf of the petitioner. 2. This application under Article 227 of the Constitution of India has been filed for quashing the order dated 19.05.2012 passed by learned Sub Judge, 1st, Sitamarhi in Misc. Case No. 16 of 2005, whereby the learned court below has been pleased to dismiss the Misc. Case filed on behalf of the petitioner under Section 22 of the Indian Succession Act, 1925 (hereinafter referred to as the “Act”). 3. The petitioner admits to be the second wife of one Sant Lal Sah, the father of the respondent nos. 2 and 3 herein who are the sons of the present petitioner. The dispute is in relation to a property bearing Khata No. 154, Khesra No. 634 having an area of 10 decimals and Khesra No. 636 also having an area of 10 decimals which according to the petitioner consists of houses and shops situated in village Padrahi in the District of Sheohar. The family genealogy is stated in the application filed under Section 22 of the Act and according whereto the said Sant Lal Sah had married twice. According to the petitioner as the marriage of this petitioner took place in the year 1953, hence despite being the second wife of the said Sant Lal Sah the prohibition under the Hindu Marriage Act, 1955 did not effect the marriage. The petitioner by filing the application has raised objection and exercised preemptory rights in relation to the property set out in the Schedule as also noted hereinabove. It is an admitted position that the sale of the said property initially took place when the sons of the petitioner i.e. the respondent nos. 2 and 3 executed a registered sale deed in favour of the respondent no. 1 on 24.05.2005. No such application admittedly was filed by the petitioner at that stage. A second sale thereafter took place on 15.05.2005 when the respondent no. 1 transferred the suit property in favour of the respondent third set who is the respondent no. 4 in the present application. Again no questions were raised by the petitioner rather an application was filed under the provisions of Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the “Ceiling Act”), by the defendant fourth set who is respondent no. 4 in the present application. Again no questions were raised by the petitioner rather an application was filed under the provisions of Section 16(3) of the Bihar Land Reforms (Fixation of Ceiling Area and Acquisition of Surplus Land) Act, 1961 (hereinafter referred to as the “Ceiling Act”), by the defendant fourth set who is respondent no. 5 in the present application giving rise to Case No. 1 of 2005-06 and the D.C.L.R. directed for execution of sale deed in favour of the preemptor. An appeal against the order of the D.C.L.R. was filed and which is pending consideration in Appeal Case No. 5 of 2007. It is at this stage that the petitioner chose to file the application in question exercising a preemptory rights and which has been rejected by the order impugned, inter alia, in view of the provisions of Section 43 of the Ceiling Act as also considering the provisions of Section 22 of the Act. The learned court below in view of the findings of the statutory authorities under the provisions of Section 16(3) of the Act as also considering that the sale transactions already stood completed have refused to entertain the application. 4. Learned counsel for the petitioner has submitted that either of the two grounds are not sustainable for the reason that the Indian Succession Act is a Parliamentary Act and thus shall have an overriding effect on the provisions of the Ceiling Act. With reference to the finding of the learned court below that as the sale transactions stood completed, hence the application was not maintainable, learned counsel has referred to a judgment of the Supreme Court reported in (2008) 15 SCC 610 (Ashutosh Chaturvedi Vs. Prano Devi alias Parani Devi and others), more particularly to paragraph-19 thereof which is an extract of a judgment of the Kerala High Court rendered in the case of Valliyil Sreedevi Amma vs. Subhadra Devi and others reported in AIR 1976 Kerala 19. Learned counsel has further submitted that whereas the provisions of Section 16(3) is only relatable to a land which is agricultural in nature, the suit property which consists of shops and a structure, the provisions of the Ceiling Act would not be applicable to the present proceedings. 5. I have heard learned counsel for the petitioner and perused the records including the judgment relied upon by learned counsel. 6. 5. I have heard learned counsel for the petitioner and perused the records including the judgment relied upon by learned counsel. 6. The very paragraph 19 on which learned counsel relies to canvass his submission that an application under Section 22 of the Act is maintainable even after the transaction is completed, runs contrary to the said submission and the relevant portion whereof is being reproduced hereinafter for ready reference: “19……. The section confers on such co-heirs a preferential right to acquire the interest which is proposed to be transferred by the other co-heir. In case the proposed transfer is effected by one of the co-heirs in violation of the right conferred on his co-heirs by sub-section (1) the latter cannot certainly be without a remedy because every legal right must necessarily carry with it a remedy for enforcing the same. The remedy of the non-alienating co-heirs, in such circumstances, will, in our opinion, be to seek the intervention of the Court to enable them to acquire the right which has been transferred away by the other co-heir in violation of sub-section (1) of Section 22. Inasmuch as the section does not provide any special procedure for seeking the said remedy, the ordinary procedure for enforcement of any civil right has to be resorted to by the co-heirs who wish to enforce their rights under Section 22(1); in other words the remedy is by way of a regular civil suit before the competent court. Where the properties have been already alienated in favour of strangers there is all the more reason why there should be a full and fair adjudication of the entire matter in a suit tried before a competent civil court because various factual questions are bound to arise for determination in such a suit wherein the principal issue would be whether the transfer complained of was effected in violation of sub-section (1) of Section 22. The main purpose of such a suit instituted by the co-heir will necessarily be the enforcement of the right conferred by Section 22(1) of the Act………” [Emphasis is mine]. 7. The judgment of the Kerala High Court (supra) was also relied upon by a Bench of this Court in the matter of Ram Udar Rai Vs. Ram Chandra Rai and Anr. 7. The judgment of the Kerala High Court (supra) was also relied upon by a Bench of this Court in the matter of Ram Udar Rai Vs. Ram Chandra Rai and Anr. reported in 2004(2) PLJR 190 while considering the scope of Section 22 of the Act and reference in this regard is made to paragraph 9 to 10 of the said judgment:- “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. I 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.” 8. In view of the categorical finding on the issue of maintainability of the application under Section 22 of the Act after the completion of the transaction, there can be no other conclusion but to hold that the order impugned does not suffer from any legal infirmity or any jurisdictional error so as to warrant any interference. For the same reason it is not desirable for this Court to record any opinion as to whether or not the provisions of Section 43 of the Ceiling Act acted as an impediment in the way of the petitioner for maintaining the Miscellaneous Case. 9. For the reasons aforesaid, this application is dismissed. The dismissal however would not preclude the petitioner from taking recourse to such remedy as may be available to her in law. I would also hastenly add and clarify that the conclusion drawn herein, in no manner expresses any opinion on the merits of the claim of the petitioner.