FIRST APPEAL No. 269 OF 2007 Against the judgment and decree dated 02.11.2007 passed by Sri Ranjan Kumar, Subordinate Judge III, Aurangabad in Pre-emption Suit No.226 of 2004/115 of 2004. SMT. LEELA DEVI & ANR. ……….Defendants-Appellants Versus BIJAY PRASAD & ANR. ……… Plaintiffs-Respondents ******** For the Appellants : Mr. Ashok Kumar Choudhary, Advocate Mr. Shailesh Kumar Singh, Advocate For the Respondents : Mr. Vijayendra Nath, Advocate Mr. Narendra Kumar, Advocate Mr. Tej Narayan Singh, Advocate Dated : 9th day of March, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T The defendants have filed this First Appeal against the judgment and decree dated 02.11.2007 passed by Sri Ranjan Kumar, Subordinate Judge III, Aurangabad in Pre-emption Suit No.226 of 2004/115 of 2004. (2) The plaintiffs-respondents filed the aforesaid pre-emption suit praying for a decree for transferring the suit land by the defendant no.2 in their favour and also prayed for restraining the defendants from transferring or making construction over the suit land. Mungeshwar Sahoo, J. 2 (3) The plaintiffs-respondents prayed the aforesaid relief on the facts that the plaintiffs and the defendant no.1 had common ancestor Late Dargahi Sao and they constitute a joint Hindu family governed by Mitakshara School of Hindu Law. Dargahi Sao had three sons namely Mungeshwar Sao @ Mungeshwar Prasad, Bhagat Sao @ Bhagat Prasad and Rajaram Sao @ Rajaram Prasad. Mungeshwar Sao died in the year 1974 leaving behind his four sons. Out of them, Dwarika Prasad is plaintiff no.2. Bhagwat Prasad died in the year 1999 leaving behind his four sons and out of them, Bijay Prasad is plaintiff no.1. The defendant no.1 is the third son of Dargahi Sao i.e. Rajaram Sao. The further case is that the plaintiffs and defendant no.1 hold their ancestral dwelling house and Khand in plot no.503 area 3 decimal and in plot no.504 area 2 decimal and they are in joint possession. There had been no partition of the house and Khand by the metes and bounds but the parties are in separate possession according to their convenience. The defendant no.1, Rajaram Prasad without giving any notice to the plaintiffs sold 3 ⅛ decimal area of plot no.503 and 504 to defendant no.2, Leela Devi by registered sale deed dated 12.08.2004. Leela Devi is stranger to the family and defendant no.1 sold in excess of his share. He has got only 1/3rd share. The plaintiffs obtained the certified copy of the sale deed and are ready and willing to deposit the amount of consideration mentioned in the sale deed and therefore, the defendants may be directed to transfer the transferred land in favour of the plaintiffs. (4) On being noticed, the defendant nos.1 and 2 appeared and filed separate contesting written statement. According to the 3 defendant no.1, there had already been oral partition between the three sons of Dargahi in the year 1972. In that partition, the defendant no.1 was allotted 2 decimals in plot no.504, 1⅛ decimal in plot no.503 and 1¼ decimal in plot no.505. After the said partition, the parties were in separate possession. There was no joint family. In the recent municipal survey, the defendant has got separate “Purcha” for the lands allotted to him and for meeting his legal necessity, the defendant negotiated with the plaintiff to sell his share but when they did not agree to pay adequate price, he sold the same to the defendant no.2. (5) According to the written statement of the defendant no.2 also, there had already been partition between the three brothers orally in the year 1972 as such, there was no joint family and after purchase, she is coming in possession of the suit property. (6) On the basis of the above pleadings, the learned Court below has framed following issues: (i) Is the suit as framed maintainable? (ii) Have the plaintiffs got valid cause of action for the suit? (iii) Is the suit under valued and court fee paid is insufficient? (iv) Is the suit hit by Specific Relief Act? (v) Are the plaintiff entitled of transferring the suit land in their favour by defendant no.2 by right of pre-emption? (vi) Are the defendants liable to be prevented from making any construction or transfer the suit land? (vii) To what relief or reliefs the plaintiffs are entitled? (7) After trial, the learned Court below found that there had been no partition by metes and bounds between the parties and 4 therefore, the plaintiffs are entitled for pre-emption and decreed the suit. (8) Mr. Choudhary, the learned counsel appearing on behalf of the appellants submitted that the suit itself was not maintainable as Section 4 of the Partition Act is applicable only when the purchaser filed suit for partition. In the present case, independent suit has been filed for pre-emption therefore, it is not maintainable. The learned counsel further submitted that there are overwhelming evidences available on record to show that there had already been partition between three brothers and therefore also, Section 4 of the Partition Act is not maintainable. Secondly, the learned counsel further submitted that Section 22 of the Hindu Succession Act is also not maintainable because the plaintiffs are not the immediate class I heirs of Dargahi Sao and moreover, since there had already been partition orally in the year 1972, Section 22 is also not applicable but the learned Court below has wrongly decreed the suit. The learned counsel further submitted that Section 22 of the Hindu Succession Act applies prior to completion of the sale deed but in this case, the suit has been filed after completion of the sale deed. On these grounds, the learned counsel submitted that the impugned judgment and decree are unsustainable in the eye of law. (9) On the other hand, Mr. V. Nath, the learned counsel appearing on behalf of the plaintiffs-respondents submitted that admittedly, the defendant no.2 is stranger to the family and after considering evidences available on record, the learned Court below disbelieved the case of partition. According to the learned counsel, 5 Section 22 of the Hindu Succession Act is an additional right of pre- emption apart from the right of pre-emption conferred under Section 4 of the Partition Act and in view of this provision, the learned Court below has rightly decreed the suit. Since the sale deed had already been registered, therefore, the plaintiffs rightly filed the suit. The learned counsel further submitted that the aforesaid provision is not limited to the dwelling house belonging to an undivided family but it extends to any immovable property or business carried on by a Hindu dying intestate whether solely or in conjunction with others whereas Section 4 of the Partition Act relates to only dwelling house. The right to apply for pre-emption under Section 22 of the Hindu Succession Act accrues only on the registration of the deed of transfer if the pre-emptor is class I heir and class I heir transferred the undivided share. The learned Court below has given categorical finding that there had been no partition and therefore, considering the fact that the plaintiffs are class I heirs and the defendant no.1 who transferred the undivided property is also class I heir, decreed the suit. On these grounds, the learned counsel submitted that the First Appeal is liable to be dismissed. (10) In view of the above submissions of the parties, the only point arises for determination in this appeal is “whether in the facts of the present case the learned court below is justified in decreeing the plaintiffs-respondents suit for pre-emption?” (11) According to the plaintiffs’ case there had been no partition between the parties and the suit property is joint. On the other hand, according to the defendants, there was oral partition in the 6 year 1972. Admittedly, the parties are Hindu governed by Mitakshara School of Hindu Law and therefore, the presumption of jointness is in favour of the plaintiff. In the present case, in addition to the presumption, the plaintiffs have also adduced oral evidences. P.W.1 has stated that since last 33 years he is going to the house of the parties. The parties are members of joint family and there had been no partition of the said house. The parties are living jointly. Likewise, P.W.2, Md. Jameel at paragraph 4, P.W.3, Narad Singh at paragraph 2-4, P.W.4, Mohan Prasad at paragraph 2-4, P.W.6, Pritam Prasad Gupta at paragraph 3, P.W.7, the plaintiff no.2 and P.W.8, plaintiff no.1, all have stated that there had been no partition between the parties. The dwelling house is in joint occupation. It may be mentioned here that the witnesses are neighbours of the plaintiffs. (12) Now let us examine the evidences of the defendants. D.W.1 is formal witness. D.W.2, Chhotan Singh at paragraph 3 has stated that there was separation in mess between the three brothers i.e. three sons of Dargahi Sao in the year 1972 and the properties were partitioned in the year 1978. D.W.3 is the defendant no.1 himself. He has stated that Mungeshwar Prasad died in the year 1974 and Bhagwat Prasad died in the year 1999. There had been partition in the year 1972 between the three sons of Dargahi. At paragraph 7-8, he has described which portion of which plot was allotted to whom in the said partition. Therefore, according to D.W.2, there had been separation only in the year 1972 and actually the properties were partitioned in the year 1978 whereas according to the defendant no.1, no case has been made out regarding partition of the properties in the year 1978. In the cross- 7 examination at paragraph 22, he has clearly mentioned that there is no pleading regarding the partition of the year 1978 but he has stated that he has produced the papers relating to the partition of the year 1978. D.W.4 is formal witness. The defendant no.2 has also examined 11 witnesses. It appears that the witnesses examined on behalf of the defendant no.2 have only stated that Leela Devi is in possession of the house purchased by her since last two years. D.W.1 for defendant no.2 at paragraph 3, D.W.2 at paragraph 3, D.W.3 at paragraph 3, D.W.4 at paragraph 3, D.W.5 at paragraph 3, D.W.6 at paragraph 3 have stated that earlier Rajaram Prasad was in possession and after purchase, the wife of this witness(D.W.6) is in possession. It may be mentioned here that this witness(D.W.6) is husband of Leela Devi. D.W.7, 8 and 9 are formal witness. D.W.10 is the defendant no.2 herself. D.W.11 is another formal witness. (13) The sale deed executed by defendant no.1, Rajaram Prasad has been produced by the plaintiff which has been marked as Exhibit-2. To prove the partition, the documents were filed by the defendant no.1 and the said document has been marked as Exhibit-4 on behalf of the plaintiff. This Exhibit-4 is award of the Punches dated 20.08.1978. It may be mentioned here that there is no signature of any Punch on the award. From perusal of the said award, it appears that it has been mentioned that on 20.08.1978 at about 2 P.M., all the Punches went to the house of Mungeshwar Sao. Mungeshwar Sao refused to partition the house and the shop. It may be mentioned here that the plaintiff in the plaint at paragraph 1 has given a genealogy wherein it is clearly mentioned that Mungeshwar Prasad died in the year 1974. In 8 the written statement of defendant no.1 at paragraph 8, it is admitted by the defendant no.1 that Mungeshwar Prasad died in the year 1974. Now, therefore, as it is admitted case of the parties that Mungeshwar died in the year 1974 then there is no question of partition by Punches between the three sons of Dargahi on 20.08.1978. As stated above, it has been mentioned in Exhibit-4 that Mungeshwar Prasad refused to partition the house and the shop. When he died in the year 1974, how he could have refused partition in the year 1978. This fact coupled with the fact that there is no signature of any one in this paper, it is not at all reliable. Exhibit-E has been produced on behalf of the defendant which is order sheet of Municipality, Aurgangabad. The learned counsel submitted that on the basis of partition, Bhagwat Prasad applied for separating the rent between the three brothers. The application filed by Bhagwat Prasad has been marked as Exhibit-D. From perusal of Exhibit-D, it appears that it has been mentioned that there had been partition of the house by the Punches. This partition by the Punches refers to Exhibit-4. As stated above, no reliance can be placed on Exhibit-4. The order sheet, Exhibit-E is based on this Exhibit-D and likewise, the other Exhibits i.e. the rent receipts, Exhibit-A series are based on these documents. Further, there is no case of the defendant no.1 that the property had been partitioned in the year 1978 by the Punches. There is only case made out in the plaint that there was oral partition in the year 1972. From perusal of the sale deed, it appears that there is no reference of partition in the year 1978 by the Punches. It is mentioned in the sale deed that there had been Khangi Batwara 9 which indicate that the partition is not by metes and bounds and it is only according to the convenience. (14) In view of the above discussion of the oral as well as documentary evidences, I find that the defendants have failed to prove that there had been partition between the three brothers i.e. three sons of Dargahi Sao regarding the suit property. The finding of the learned Court below on this point is therefore, confirmed. (15) The learned counsel for the appellants submitted that nowhere in the plaint it is mentioned that the pre-emption suit was filed under the provision of Section 22 of the Hindu Succession Act and for the first time, before this Court, it is submitted that the plaintiff filed the suit under Section 22. So far this submission is concerned, it may be mentioned here that Section 4 of the Partition Act applies when suit is filed for partition by the purchaser. Admittedly, in this case, independent suit has been filed by the plaintiff. Although, provision under which the suit has been filed is not mentioned in the plaint but on that ground alone, the plaintiffs cannot be non-suited. (16) Section 22 of the Hindu Succession Act reads as follows: “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. 10 (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.” (17) In view of the above provision, the only requirement is that if a person dies intestate and his interest in immovable property devolves upon two or more heirs specified in class I of the Schedule and if any one of the heir proposes to transfer his or her interest in the property, the other heirs shall have a preferential rights to acquire the interest proposed to be transferred. We have seen above that since there had been no partition of the suit property, the defendant no.1 who is class I heir had only interest in the property. The learned counsel for the appellant submitted that since the transfer has been completed, the transferee acquired the title and therefore, Section 22 of the Hindu Succession Act is not applicable. So far this submission is concerned also, I find no merit because in a decision reported in 2004(2) P.L.J.R. 190(Ram Udar Rai vs. Ram Chandra Rai and Anr.) at paragraph 9, it has been held by this Court as follows: “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 11 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.” (18) Admittedly, defendant no.2 in this case is stranger to the family. The object of legislature in enacting Section 22 of the Hindu Succession Act is to provide a cheap and speedy remedy. This preferential right is in addition to the right under Section 4 of the Partition Act. Implicit in the provision was the legislative intent that such stranger should be kept away from the joint family property. It was enacted with the avowed object of ensuring peaceful enjoyment of the common dwelling house or property by the remaining co-owners being the members of the same family. (19) In view of the above discussion, I find that the suit was maintainable and the learned Court below has rightly held that the plaintiffs have got preferential right over the stranger. Non-mentioning of the provision of law in the plaint is not fatal to the plaintiff’s case. The finding of the learned Court below on this point is therefore, confirmed. (20) In view of the above findings, I find no merit in this First Appeal and accordingly, this First Appeal is dismissed. In the facts and circumstances of the case, there shall be no order as to costs. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 9th March, 2011 Saurabh/N.A.F.R.