IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No.330/1995 Reserved on.27.11.2007 Decided on: 11.1.2008 Madan Lal and another. …Appellants. Versus Braham Dass alias Brahmu and another. …Respondents Coram The Hon’ble Mr. Justice Rajiv Sharma, J. Whether approved for reporting ?1. Yes. For the appellants : Mr. Lalit Kumar Sharma, Advocate. For the respondents: Ms. Devyani Sharma, Advocate. Rajiv Sharma, J. A challenge has been laid by way of this second appeal to the judgment and decree passed by the learned District Judge, Hamirpur dated 1.6.1995 rendered in civil appeal No. 117/1989. The brief facts necessary for the adjudication of this second appeal are that the respondent-plaintiff Braham Dass alias Brahmu had filed a suit against the appellants-defendants No.1 and 2, i.e. Madan Lal and Roshan Lal and the proforma defendant Sh. Haria for possession under section 22 of the Hindu Succession Act, 1956 with respect to the suit land. It was alleged by the plaintiff Braham Dass that he and defendant Haria are the real brothers and they had inherited the suit land from their father Sh. Bhagtu. Sh. Haria sold his entire share of the suit land in favour of Sh. Madan Lal and Roshan Lal without notice to the plaintiff and without any legal necessity. The plaintiff impressed upon the defendants to accept the 1 Whether the reporters of Local Papers may be allowed to see the judgment? Yes. 2 sale consideration but they did not agree to the same. The suit property was alleged to be coparcenary property and joint Hindu property inter se Sh. Braham Dass and defendant Sh. Haria. Since the appellants Madan Lal and Roshan Lal refused to re-transfer the suit land in favour of the plaintiff Sh. Braham Dass, the suit was filed. The learned Senior Sub Judge framed the following issues on 8.12.1987: 1. Whether the land in suit is coparcenary property of Hindu Joint Family consisting of plaintiff and defendant No.3? OPP 2. Whether the sale by defendant No.3 to defendants No.1 and 2 of the property in sit is without legal necessity and without consideration and as such, illegal and void and inoperative qua the rights of the plaintiffs and other reversioners as alleged (onus objected)? 3. Whether the suit of the plaintiff for pre-empting the sale under section 22 of the Hindu Succession Act as framed is competent? OPP 4. If issues No.1 to 3 are proved, whether the plaintiff is entitled to the relief of possession as prayed? OPD 5. Whether the suit of the plaintiff is not properly valued for purposes of Court fees and jurisdiction? OPD 6. Whether the plaintiff has no cause of action? OPD 7. Relief. The findings recorded by the learned Senior Sub Judge on the aforesaid issues are as under: Issue No.1. No. Issue No.2 No. Issue No.3 Yes. Issue No.4. Yes, U/S 22 of the Hindu Succession Act. Issue No.5 No. Issue No.6 Not pressed. Issue No.7 No. Issue No.7 Suit decreed for prayer (A) as per operative portion of the judgment. 3 The learned Senior Sub Judge vide judgment dated 25.8.1989 decreed the suit filed by the plaintiff Sh. Braham Dass for possession under section 22 of the Hindu Succession Act, 1956 in respect of the suit land subject to the plaintiff’s depositing a sum of Rs. 17,000/- in the court within three months failing which the suit of the plaintiff was to be dismissed with costs. The appellants Madan Lal and Roshan Lal filed an appeal against the judgment and decree in civil suit No. 140-1 of 1987 in the court of learned District Judge, Hamirpur. The learned District Judge, Hamirpur framed the following points for determination: 1 Whether the impugned judgment and decree is legally and factually sustainable? 2 Final order. The learned District Judge had recorded the following findings on the aforesaid points: 1 Yes. 2 The appeal is dismissed as per the operative portion of the judgment. The learned District Judge dismissed the appeal filed by the appellants on 1.6.1995. This second appeal has been preferred against the judgment and decree dated 1.6.1995 passed by the learned District Judge, Hamirpur. The second appeal was admitted on the following substantial questions of law: 1. What is the effect of section 22 of Hindu Succession Act on concluded sale whereupon the bonafide purchaser has acted on the representation of the seller and the other heir opted to remain silent thereupon? 2. Whether in the absence of coparcenary and joint Hindu Family at the time of the alienation of the land in question, the provision of section 22 of Hindu Succession Act is attracted? 4 3. What is the effect of section 22 of Hindu Succession Act on sale deed where the heirs prescribed in class 1 has sold his exclusive share on account of legal necessity when the other heir in class 1 has remain silent/refused to purchase thereof? 4. Whether the court below has appreciated the pleadings and the evidence on the case file while arriving at the conclusion that respondent No.1 is entitled for the possession of land as per section 22 of Hindu Succession Act? It will be pertinent to mention at this stage that respondent No.2 Sh. Haria was proceeded exparte vide order dated 27.9.1996. Mr. Lalit Kumar Sharma, Advocate had raised two points for determination i.e. (i) that the suit under section 22 of the Hindu Marriage Act, 1956 was not maintainable after the sales were concluded vide Ex.P- 5, Ex.P-6 and Ex.P7 dated 9.7.1986, 26.6.1986 and 9.7.1986 and a regular suit was required to be filed. His second contention is that the section 22 Hindu Succession Act, 1956 is not applicable to the agricultural land. Ms. Devyani Sharma, Advocate has supported the judgment dated 1.6.1995. Mr. Lalit Kumar Sharma, Advocate had relied upon Valliyil Sreedevi Amma versus Subhadra Devi and others, AIR 1976 Kerala 19 and Ghewarwala Jain versus Hanuman Prasad and another, AIR 1981 Madhya Pradesh 250 to substantiate his plea that once the sale has been concluded, application under section 22 of the Hindu Succession Act, 1956 is not maintainable. A Division Bench of Kerala High Court in Valliyil Sreedevi Amma versus Subhadra Devi and others, AIR 1976 Kerala 19 has held that remedy of other co-sharers to acquire transfer and interest is by way of a 5 suit and application under section 22 of the Hindu Succession Act, 1956 is not maintainable. Their Lordships have held as under: “ Section 22 of the Act is in the following terms:- 22 (1) Where, after the commencement of this Act, an interest in any immovable property of an intestate, or in any business carried on by his or her, whether solely or in conjunction with others, develops 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. (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 1 of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred. Explanation.- In this section “Court” means the Court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may, by notification in the official Gazette, specify in this behalf. “The object of sub-section (1) as we understand it is that in cases where by virtue of intestate succession under the Act any interest in immovable property has developed upon two or more heirs specified in Class 1 of the Schedule and any one of such heirs proposes to transfer his interest in the property the other heirs should have a preferential right to acquire the interest which is so proposed to be transferred. The said intention of Parliament can be effectuated only if we consider the section as conferring an enforceable right on the heirs 6 other than the one who proposes to transfer his interest. 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 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 restored 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. The question of invalidity of the transfer effected by the other co-heir in favour of strangers becomes relevant in such an action as an incidental matter which ahs necessarily to be gone into for the purpose of determining whether the plaintiff is entitled to the relief sought by him against his co-heir in enforcement of the right conferred by section 22 (1). The Lower Court was perfectly right in holding that the prayers incorporated in the petition for a declaration of invalidity of the sale effected by the 1st respondent in favour of respondents Nos.2 to 4 and for a direction for transfer of the 7 1st respondent’s share in favour of the petitioner as a further relief consequential to such a declaration are totally outside the scope of an application under section 22 (2) of the Act and we have no hesitation to uphold the said finding. We cannot however, see our way to agree with the view expressed by the lower court that the proper remedy for the petitioner is to institute a suit for specific performance. Where there is no agreement either contractual or statutory for conveyance of the property there can be no question of a party seeking the relief of specific performance. The remedy, as we have already indicated, is only to file a suit for enforcement of the limited right of purchase conferred by sub section (1) of section 22 and in such a suit the question of invalidity of the sale already effected by the co-sharer will be incidentally investigated and decided.” Similarly, the learned Single Judge of Madhya Pradesh High Court has held in Ghewarwala Jain versus Hanuman Prasad and another, AIR 1981 Madhya Pradesh 250 that when sale has been concluded application under section 22 (2) for determining the price of property would not be maintainable. The learned Single Judge has held as under: “The title of this section indicates that it concerns itself with preferential right to acquire property in certain cases. In sub- section (1) the expression used is “proposes to transfer.”. Accordingly, when the legislature talks of preferential right to acquire the interest “proposed to be transferred” in sub- section (1) of section 22, it talks of a “contemplated transfer” and not of “concluded transfer” or “transfer already effected.” The right to acquire preferentially the interest is conceived as a right exercisable at a stage where one of the heirs of the deceased proposes to transfer his or her interest in the property or business left by the deceased Hindu dying intestate. Acceptance of the contention that Section 22 (1) of the Act creates a preferential right to acquire the interest already transferred will involve re-writing thereof. This is not 8 permissible on any established principle of construction of statutes.” In view of the aforesaid discussion, an application under section 22 (2) of the Act cannot be regarded to be maintainable after ‘transfer’ has been effected. It is maintainable only at a stage where transferor heir proposes to transfer his or her interest in the property. A similar question fell for consideration before a Division Bench of the Kerala High Court in Valliyil Sreedevi Amma versus Subhadra Devi, AIR 1976 Ker. 19 wherein the law on the point has been laid down thus: “The object of sub-section (1) as we understand it is that in cases where by virtue of intestate succession under the Act any interest in immovable property has developed upon two or more heirs specified in Class 1 of the Schedule and any one of such heirs proposes to transfer his interest in the property the other heirs should have a preferential right to acquire the interest which is so proposed to be transferred. The said intention of Parliament can be effectuated only if we consider the section as conferring an enforceable right on the heirs other than the one who proposes to transfer his interest. 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 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 restored 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 9 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. The question of invalidity of the transfer effected by the other co-heir in favour of strangers becomes relevant in such an action as an incidental matter which ahs necessarily to be gone into for the purpose of determining whether the plaintiff is entitled to the relief sought by him against his co-heir in enforcement of the right conferred by section 22 (1). We are unable to agree with the contention advanced by the learned counsel for the appellant that the aforesaid question can be legitimately gone into by the Court, even in an application filed under section 22 of the Act. In our opinion the object of the legislature in enacting sub-section (2) of section 22 is only to provide a cheap and speedy remedy in cases where the property is in the hands of the co-heir who proposes to transfer the same and another co-heir is interested in acquiring the rights of the former but the parties are not able to agree about the consideration for which the former’s interest in the property should be transferred to the latter. Where the property itself has been already transferred away by the co-heir first mentioned we fail to see what useful purpose will be served by an investigation conducted by the court under sub-section 92) for determining the price at which the property may be sold by the former to the latter. In such a case an investigation under sub-section (2) may become relevant only after the person who feels aggrieved by the transfer effected by his co-heir in contravention of the provisions of sub-section (1) has by resort to the appropriate legal process obtained a declaration from the competent Civil 10 Court that the sale effected by the co-heir in favour of strangers is invalid. Even in such a case, unless the co-heir who had effected the impugned alienation again proposes to transfer his interest in the property there can be no occasion for any determination to be made by the Court about the price payable by the other co-heir under sub section 92) of section 22.” I am in respectful agreement with the view expressed by the Kerala high Court in the aforesaid case. Accordingly, the view taken by the learned Additional District Judge that application submitted by the revision-applicant is not maintainable is correct. As such the application submitted by the revision-applicant is not maintainable under section 22 (2) of the Act. Ms. Devyani Sharma, Advocate had relied upon Jaswant and others versus Basanti Devi, 1970 PLJ 587 and Ganesh Chandra Pradhan versus Rukmani Mohanty and others AIR 1971 Orissa 65 to meet the contentions raised by Mr. Lalit Kumar Sharma. She had strenuously argued that the application under section 22 of the Hindu Succession Act, 1956 will be maintainable even if there is concluded sale. A Division Bench of Punjab and Haryana High Court has held in Jaswant and others versus Basanti Devi, 1970 PLJ 587 that the correct way to interpret the section 22 of the Hindu Succession Act, 1956 and to give its meaning is to hold that a completed transfer also falls within the ambit of sub section (1) and the words ‘proposes to transfer’ would thus include a completed transfer as well. Their Lordships have held as under: “In my opinion, the correct way to interpret the section 22 of the Hindu Succession Act, 1956 and to give its meaning is to hold that a completed transfer also falls within the ambit of sub section (1) and the words ‘proposes to transfer’ would thus include a completed transfer as well. As already said, otherwise this section would become wholly unworkable. It is 11 well known canon of construction that Courts must give meaning to a legislative pro vision unless the Court is forced to a conclusion that it will in fact be legislating and not interpreting the same.” Similarly, the learned Single Judge has held in Ganesh Chandra Pradhan versus Rukmani Mohanty and others AIR 1971 Orissa 65 that transferor heir must propose or notify his intention to transfer to other Class-I co-heirs; a transfer made without it would be vulnerable even after it is completed on proof by co-heirs who have the preferential right that the transfer was made without notice of the proposal of transfer to them. The learned Single Judge has held as under: “But in the words “proposes to transfer” appearing in sub- section (1) of the section, to my mind, there indeed appears to be a requirement that the transferor-heirs and it is only when they do not exercise their preferential right conferred under the section that he would be free to make the transfer to strangers not coming within the fold of the section. Once it is held that such a statutory duty is cast on the transferor heir, where it is shown that the transferee has purchased the property without notice having been given to the remaining Class 1 co-heirs, the transfer could still be impugned after it was completed. Such an interpretation would not only be in keeping with the true legislative intention, but it would also not work inequitably. Thereby the preferential right would be kept up, the transferor would not have an undue impediment on his right to transfer and the transferee should after being satisfied that the Class I co-heirs have in spite of notice failed to exercise their preferential right of acquisition purchase the property and obtain the same free from the liability under section 22 of the Act. Expressed in other words, it would mean, when an heir proposed to transfer his or her interest in the property inherited the legal consequences which would necessarily emerge would be these: 12 (a) In the remaining co-heirs a right of preference to acquire such interest proposed to be transferred in preference to any other person accrues. Such right may be availed of or may be given up. (b) A corresponding legal obligation on the intending transferor would stand imposed not to transfer the interest in violation of the preferential right of the other Class I co-heirs. (c) A statutory notice is given to all intending transferees that Class I co-heirs have a preferential right and until that is exhausted either by its exercise or by its non- exercise in spite of notice they are not free to take the transfer. Unless such an interpretation is given to the provisions of section 22 (1) of the Act, the preferential right contemplated therein would really be an airy one and the true legislative intention cannot be given effect to. I would, therefore, interpret sub-section (1) of section 22 in the aforesaid manner and would hold that the transferor heir must propose or notify his intention to transfer to the other class 1 co-heirs and a transfer made without following that procedure would be vulnerable even after it is completed on proof by the co-heir who has the preferential right that the transfer was made without notice of the proposal of transfer to him. Such an interpretation of the section may be sufficient for the purposes of meeting the present problem in this case. But I think it proper to also indicate that such interpretation could not solve the entire problem that arises on account of an imperfect provision in the section of the Act. I would recall the criticism offered by the commentator in Mulla’s Hindu Law. If the intention is to put an embargo on strangers getting into possession what would be the justification to prohibit a simple mortgage? It is, therefore, proper that clarification be made by amendment clearly circumscribing the limit of the exercise of the preferential right. It may cover cases of sale, gift, or other forms of transfer which involve transfer of possession. The second objection has been that the transfer has been concluded and title has already passed into the hands of the vendee. On the interpretation I have adopted of section 22 of the Act the right could also be exercised against the vendee 13 if opposite parties 1 and 2 had not notified their intention to make the alienation to the petitioner. That would be a question of fact. There had been allegation by the opposite parties that it was the father, that is, the