Law Web: When right to pre-emption is not available after partition of ancestral property?

Section 22(1) of the said Act on the basis of which the plaintiffs

claim relief reads thus:

“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.”

From the aforesaid provisions it is clear that when interest in any

immovable property of an intestate devolves upon two or more heirs

specified in Clause I of the Schedule and one such heir proposes to transfer

his or her interest in the property, then the other heirs would have

preferential right to acquire interest in the immovable property proposed to

be transferred. Thus, the contingency as stipulated under Section 22(1) of

the said Act is devolution of interest in immovable property of an intestate

on two or more heirs specified in Clause I of the Schedule. The term

“intestate” has been defined by Section 3(g) of the said Act and same reads as

under:

“intestate” a person is deemed to die intestate in

respect of property of which he or she has not made a

testamentary disposition capable of taking effect;”.

It is, therefore, clear that for the purposes of claiming preferential right under

Section 22(1) of the said Act, the occasion for exercising such right would

arise only on devolution of interest in property of an intestate on the legal

heirs and one of them proposing to transfer his interest so acquired.

It would therefore be necessary to examine whether the

requirements of Section 22(1) of the said Act stand satisfied in the present

case. As stated above, it was the specific case of the plaintiffs that pursuant

to partition in the year 1957 field Survey No. 482 was allotted to defendant
no.1. It therefore became his separate property by virtue of aforesaid

partition. Both the plaintiffs had also been allotted different properties in
aforesaid partition. It is not the case that on account of devolution of

interest in immovable property of an intestate, a right had accrued to the
plaintiffs. The entire claim for preferential right is with regard to the

property allotted to the defendant no. 1 in partition. It is, therefore,obvious
that the aforesaid requirement of Section 22(1) of the said Act of interest of

an intestate devolving is not at all satisfied.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH

NAGPUR.

SECOND APPEAL NO. 215 OF 1999

Smt. Aloki wd/o Anandrao Idre, Vs Gajanan Lahanuji Idre,

CORAM: A. S. CHANDURKAR J.

Citation;2015(3) MHLJ 233

Dated;4-12-2014

This appeal under Section 100 of the Code of Civil Procedure has

been filed by the plaintiffs who are aggrieved by the judgment of the first

appellate Court allowing the appeal preferred by the original defendants and

dismissing the suit filed by the plaintiffs.

One Lahanu Idre was the common ancestor who was married

with one Sitabai. From said wedlock they had three sons, Anandrao (plaintiff

No. 1), Pandhari, son of Nathu their second son (plaintiff No. 2) and

Gajanandefendant No. 1. According to plaintiffs, their father was having

agricultural land and house property. The ancestral property was partitioned

after the death of Lahanu in the year 1957. As per said partition, field Survey

Nos. 94/6 and 93/5 (new 482) went to the share of defendant no. 1. Field

Survey No. 94/7 (new 485) went to the share of Nathu the father of plaintiff

no.2 and field Survey Nos. 94/3 and 93/3 (new 484) went to the share of

plaintiff No. 1. The defendant no.1 sold field Survey No. 482 for

consideration of Rs. 66,500/ on 27.02.1996 to the defendant no. 2.

According to plaintiffs, they had preferential right to purchase said field

bearing Survey No. 482. Hence, on the basis of said right of preemption the

plaintiffs issued notice dated 03.10.1996 to the defendants. Thereafter

came to be filed.

present suit for declaration of right of preemption and mandatory injunction

The defendants in their written statement took the stand that the

plaintiffs had no right of preemption to purchase aforesaid suit field. It was

further pleaded that the plaintiffs were not ready and willing to purchase said

property and hence they were not entitled to any relief what so ever. As the

defendant no.1 was the absolute owner of the suit property, he was legally

entitled to sell the same to the defendant no. 2.

The trial Court after considering the evidence on record held that

the plaintiffs had proved that the defendant no. 1 had sold the suit property

to defendant no.2 without giving any notice. It was further held that the

plaintiffs had proved that they were ready and willing to purchase aforesaid

property. On that basis, the trial Court decreed the suit by holding that the

plaintiffs had preferential right to purchase the same and hence directed the

defendant no. 2 to accept the amount of sale consideration and execute sale

The first appellate Court while considering the appeal filed by the

deed in favour of plaintiff no. 2.

original defendants held that the plaintiffs had no preferential right to

purchase the suit property. It further held that the grant of relief in favour of

plaintiff no.2 was totally unjustifiable. It, therefore, allowed the appeal and

set aside the decree passed by the trial Court.

While admitting the second appeal the following substantial

question of law was framed:

As to whether under the provisions of Section 22 of

Hindu Succession Act, the plaintiffs were entitled to

have preferential right to purchase the suit land and

whether they had complied with the provisions of

Section 22 of the said Act?

Shri C. M. Samarth, learned counsel appearing for the appellants

submitted that the first appellate Court erred in allowing the appeal filed by

the original defendants. He submitted that under Section 22 of the Hindu

Succession Act, 1956 (for short the said Act) the plaintiffs had preferential

right to purchase aforesaid property. The defendant no.1 however without

making any offer and without disclosing his intention sold the same to the

defendant no.2. Relying upon the decision in the case of Ganesh Chandra

Pradhan Vs. Rukmani Mohanty and others AIR 1971 Orissa 65, it was

submitted that the plaintiffs being coheirs were entitled to be offered

aforesaid land by the defendant no.1. Reliance was also placed on the

judgment of learned Single Judge in Bharat Machindra Parekar and

another Vs. Anjanabai w/o Babarao Thaware and another 2007(6)

Maharashtra Law Journal 706 to submit that even if the defendant no. 1

had executed sale deed, the right of preemption was not lost. He submitted

that under the provisions of Section 22(1) of the said Act, cause of action

accrued to the plaintiffs and hence the first appellate Court was not justified

in dismissing the suit while allowing the appeal.

Shri R. Maheshwari, the learned counsel appearing for the

respondents supported the impugned judgment. He submitted that it was the

case of the plaintiffs that pursuant to the partition between the brothers, field

Survey No. 482 had been allotted to the defendant no.1 and hence he was

competent to alienate the same. He submitted that provisions of Section 22

of the said Act were not attracted in the facts of the present case. He relied

upon the judgment of Chhattisgarh in the case of Ghanshyam Vs.

Sanghmitra Datta and Another decided on 28.02.2011 in this regard. He

also relied upon the decision of the Orissa High Court in Bhagirathi Chhatoi

Vs. Adikanda Chhatoi and others AIR 1988 Orissa 285 and Dwijabrata

Das and others Vs. Debabrata Das and another AIR 1994 Gouhati 88.

The short issue therefore that requires determination is whether

the plaintiffs had a preferential right under the provisions of Section 22(1) of

the said Act to purchase the suit property. As per the averments made in the

plaint, it was the specific case of the plaintiffs that till the year 1957, all the

brothers were joint in mess and estate. After partition was effected in the

year 1957, field Survey No. 482 went to the share of defendant no. 2, field

Survey No. 483 went to the share of plaintiff No. 1 and field Survey No. 485

went to the share of plaintiff No. 2. In para 2 of the plaint it was pleaded

that besides aforesaid properties, other fields and house properties were also

partitioned. It is not in dispute that field Survey No. 482 that was allotted to

the defendant no.1 in aforesaid partition was sold by him to the defendant

no. 2 on 27.02.1996.

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