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2012 DIGILAW 3487 (MAD)

M. Ramasamy v. S. Duraisamy

2012-08-06

P.R.SHIVAKUMAR

body2012
Judgment :- 1. The arguments advanced on both sides were heard. Appeal Memorandum, copies of judgments and decrees of the courts below and the documents produced in the form of typed set papers were also perused. 2. The unsuccessful plaintiffs, who lost their legal battle in both the courts below, are the appellants in the second appeal. They had filed the suit before the trial court for the enforcement of their supposed right of preemptive purchase in respect of the share of the first respondent/first defendant in the suit property. Both the courts negatived their claim. Hence the appellants/plaintiffs are before this court in this second appeal. 3. As against the judgment of an appellate court, which is subordinate to the High Court, a further appeal (second appeal) shall lie to the High Court only on a substantial question of law. "Whether the claim of the appellants/plaintiffs that they have a right of preemptive purchase to purchase the share of the first respondent/first defendant has been wrongly decided by the courts below against the appellants/plaintiffs?" is the only question, which is sought to be projected as a substantial question of law. 4. Before dealing with the abstract question of law projected by the appellants/plaintiffs as a substantial question of law, it shall be convenient to refer to the brief facts of the case. The suit property originally belonged to one Kaliappa Gounder. A total extent of 4.22 acres of land comprised in Survey Nos.895, 896, 898 (R.S.No.996/1, 966/1,966/2, 966/4, 966/5 and 966/7) of Erode Taluk and a well situated therein was admittedly the property of Kaliappa Gounder. Kaliappa Gounder had three daughters. Their names are Ponnayammal, Kolandayammal and Subbayammal. Kaliappa Gounder died long back. The plaint is silent as to the date or probable year of death of Kaliappa Gounder. However, the defendants have taken a plea that Kaliappa Gounder died 40 years prior to the filing of the written statement. The same will take us to 1967, long after the Hindu Succession Act, 1956 came into force. There is no dispute and on the other hand, there is consensus among the parties regarding the fact that Kaliappa Gounder died after the Hindu Succession Act, 1956 came into force. It is also not in dispute that one of his daughters ,by name Subbayammal pre-deceased him and the first respondent/first defendant is her only son. There is no dispute and on the other hand, there is consensus among the parties regarding the fact that Kaliappa Gounder died after the Hindu Succession Act, 1956 came into force. It is also not in dispute that one of his daughters ,by name Subbayammal pre-deceased him and the first respondent/first defendant is her only son. It is also an admitted fact that on the date of death of Kaliappa Gounder, Ponnayammal, Kolandayammal being his daughters and S.Duraisamy, the first respondent/first defendant being the son of a pre-deceased daughter, became entitled to the property as Class 1 legal heirs. Plaintiffs are the sons of Ponnayammal. On the death of Kaliappa Gounder, his surviving daughters (two in number) and his grandson through a pre-deceased daughter (one in number) became entitled to equal shares in his properties. Thus, each one of them became entitled to 1/3 share. The first defendant has executed a sale deed on 27.11.2006 in favour of the defendants 2 and 3 conveying his 1/3rd share to them. Thereafter, the plaintiffs, who are the sons of Ponnayammal, who died subsequent to the death of Kaliappa Gounder, chose to issue a notice on 25.01.2011 claiming that they did have a right of pre-emptive purchase of the 1/3rd share of the first defendant in the suit property. The same was denied by the defendants. Accordingly, the appellants/plaintiffs approached the court with the suit for enforcement of their alleged right of pre-emptive purchase. 5. The appellants/plaintiffs seem to have claimed a right of pre-emptive purchase of the share of the first defendant in the suit properties by virtue of Section 22 of the Hindu Succession Act, 1956. Of course Section 22 of the Hindu Succession Act, 1956 provides such a right of preemptive purchase to all the Class 1 heirs when they inherit the immovable property from a common ancestor by way of intestate succession. For the sake of convenience, the said section is reproduced hereunder:- 22. Preferential right to acquire property in certain cases. Of course Section 22 of the Hindu Succession Act, 1956 provides such a right of preemptive purchase to all the Class 1 heirs when they inherit the immovable property from a common ancestor by way of intestate succession. For the sake of convenience, the said section is reproduced 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 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. (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. 6. A reading of clause (1) will make it clear that the right of pre-emption is available to Class 1 heirs of a Hindu dying intestate in respect of his immovable property or business. The right recognized under section 22 is a preferential right to acquire the interest of any other sharer, who propose to transfer his interest in the property or business. The same is with a view to see that the family property or business, does not get disintegrated by the induction of strangers to the family. Such a preferential right to acquire the share of other heir, who proposes to transfer his/her interest in the property is available to all other heirs. The same is with a view to see that the family property or business, does not get disintegrated by the induction of strangers to the family. Such a preferential right to acquire the share of other heir, who proposes to transfer his/her interest in the property is available to all other heirs. If there are more than two Class 1 heirs upon whom the property of a Hindu devolved on intestate succession and any one of such Class 1 heirs proposes to transfer his/her interest, the preferential right to acquire such interest of such heir shall be available to all other Class 1 legal heirs. All other Class 1 legal heirs of common ancestor from whom the property devolved upon them, shall be equally entitled to acquire the share of the other Class 1 heir who proposes to transfer his/her share. As such all other Class 1 heirs shall be necessary parties in case of a suit for enforcement of the right of pre-emptive purchase. This position will be clear if subclauses (1) and (2) are read in conjunction with sub-clause (3) of section 22. 7. Sub clause (3) of section 22 of the Hindu Succession Act, 1956 says that, in case there are two or more heirs specified in Class 1 and they propose to acquire any interest under the section by exercising the preferential right to acquire, then the heir, who offers the highest consideration for the transfer, shall be preferred. The same will show that either the preferential right should be sought to be exercised by all remaining Class 1 heirs. In case of competition among them, the heir, who offers the highest consideration, is to be preferred. It can be done if the other Class 1 heirs are also made parties to the suit. In this case, Kaliappa Gounder had got three daughters. The plaintiffs are the sons of one of the daughters, namely Ponnayammal, who survived Kaliappa Gounder and thereafter died in 1998. Another daughter of Kaliappa Gounder by name Kolandayammal also survived Kaliappa Gounder and died subsequently. The appellants/plaintiffs themselves have stated that the legal heirs of Kolandayammal are entitled to 1/3rd share in the suit property. In this case, the legal heirs of Kolandayammal, who are in the very same degree of relationship to the deceased Kaliappa Gounder are not made parties. The appellants/plaintiffs themselves have stated that the legal heirs of Kolandayammal are entitled to 1/3rd share in the suit property. In this case, the legal heirs of Kolandayammal, who are in the very same degree of relationship to the deceased Kaliappa Gounder are not made parties. Hence, even assuming that the appellants/plaintiffs are covered by section 22 of the Hindu Succession Act, 1956, they shall be non-suited on the ground of non-joinder of necessary parties. 8. In this case, the application of Section 22 is not attracted to the case of the plaintiffs. At the time of death of Kaliappa Gounder, his daughters Ponnayammal and Kolandayammal were alive and no doubt they were the Class 1 legal heirs of Kaliappa Gounder. Along with them, the first defendant, being the son of a pre-deceased daughter of Kaliappa Gounder was also a Class 1 heir of Kaliappa Gounder. The right recognized under Section 22 of the Hindu Succession Act, 1956 is a right available to Class 1 heirs. In case Class 1 heirs during their life time do not exercise their right of preferential purchase or no proposal for sale of the interest of the other Class 1 heir is made during the life time of the remaining Class 1 heirs, then the right of pre-emptive purchase shall not devolve upon the legal heirs of a Class 1 heir as against another Class 1 heir of common ancestor. The sons of Ponnayammal can claim a right of preemptive purchase in respect of the property left by Ponnayammal alone. Since the plaintiffs are not the Class 1 heirs of Kaliappa Gounder, the right of pre-emptive purchase contemplated under Section 22 in respect of the share of the first defendant, who was a Class 1 heir of Kaliappa Gounder, is not available to the appellants/plaintiffs, even though such right would have been available to Ponnayammal and Kolandayammal. Ponnayammal, namely the mother of the plaintiffs, did not exercise her right of pre-emptive purchase during her life time and in fact during her life time, the occasion for exercising such right did not arise. As such the appellants/plaintiffs cannot claim the right of pre-emptive purchase as against the first defendant. Ponnayammal, namely the mother of the plaintiffs, did not exercise her right of pre-emptive purchase during her life time and in fact during her life time, the occasion for exercising such right did not arise. As such the appellants/plaintiffs cannot claim the right of pre-emptive purchase as against the first defendant. The courts below have correctly applied the provision of law holding that the right of pre-emption is available only to Class 1 heirs of a Hindu dying intestate and that the appellants/plaintiffs, who are not Class 1 heirs of Kaliappa Gounder, are not entitled to claim preferential right of purchasing the share of the first respondent/first defendant. There is no error, defect or infirmity in the concurrent judgments of the courts below in this regard. The only question of law involved in this case has been correctly decided by the courts below. Hence, this court is of the view that no substantial question of law is involved in this case and that no substantial question of law has been wrongly decided by the courts below. 9. For the above said reasons, this court comes to the conclusion that the second appeal does not even merit admission and the same deserves to be dismissed in liminie at the stage of admission itself. Accordingly, the second appeal is dismissed. However, there shall be no order as to cost. Consequently, the connected miscellaneous petition is closed.