C.R. No. 3527 of 2010 (O&M) [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 3527 of 2010 (O&M) Date of Decision: February 21, 2012 Smt. Bhago Kaur and others …..Petitioners Vs. Mangat Singh and others …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr.Nilesh Bhardwaj, Advocate for the petitioners. Mr.Nonish Kumar, Advocate for respondent No.2. -.- M.M.S. BEDI, J. The petitioners are plaintiffs in a suit for possession by way of pre-emption under Section 22 of the Hindu Succession Act. The petitioners have sought a decree for possession by way of pre-emption under Section 22 of the Hindu Succession Act, regarding the land mentioned in the plaint with consequential relief for permanent injunction restraining the defendant- C.R. No. 3527 of 2010 (O&M) [2] respondents from dispossessing the plaintiffs and proforma defendants from the land in question forcibly, in any manner. As per the allegations in the plaint, the joint Hindu undivided family property of plaintiffs has been sold by Mangat Singh, defendant- respondent No.1 to defendant- respondent No.2 Raj Kumar vide sale deed dated September 8, 2009. The sale deed is allegedly the result of fraud and misrepresentation. Plaintiff- petitioners claimed that they have a right in the property by birth being members of HUF. Vide impugned order, the plaintiff-petitioners have been directed to deposit 1/5th pre-emption money. Main grievance of the plaintiff-petitioners is that the provisions of Section 22 of the Punjab Pre-emption Act is not applicable in the present case as the suit has been filed by the petitioner under Section 22 of the Hindu Succession Act. As per the averments in the plaint, the plaintiffs have claimed that defendant No.1 and defendant No.2 have colluded with each other but even then the plaintiffs have got a right under Secti0on 22 of the Hindu Succession Act, to have the land in dispute by way of pre- emption. I have heard counsel for the petitioners and carefully considered the pleadings, relevant provisions of law to determine the propriety of the order. The copy of the plaint indicates that in the title, the plaintiffs have claimed possession by way of pre-emption under Section 22 of the Hindu Succession Act, whereas in the body of the plaint, the sale by defendant No.1 Mangat Singh in favour of defendant No.2 Raj Kumar dated C.R. No. 3527 of 2010 (O&M) [3] September 8, 2008 has been challenged being collusive and vague, prayer has been made praying that decree for possession by way of pre-emption under Section 22 of the Hindu Succession Act regarding the land in dispute as mentioned in para 3 of the plaint be passed in favour of the plaintiffs, proforma defendants and against the defendants. Section 22 of the Hindu Succession Act, deals with preferential right to acquire property. As per Section 22 of the Hindu Succession Act, in case a property devolves upon two or more heirs specified in clause 1 of the Schedule and any one of such heirs proposes to transfer his or her rights in the property, the other heirs have got a preferential right to acquire the interest proposed to be transferred. The Court is required to determine the consideration for which any interest in the property of the deceased is to be transferred. It is also provided under Section 22 of the Act that if there are two or more heirs proposing to acquire any interest under Section 22 of the Act, the heir who offers the highest consideration for the transfer shall be preferred. Section 22 of the 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 C.R. No. 3527 of 2010 (O&M) [4] 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.” A bare perusal of Section 22 indicates that the heirs specified in Clause 1 of the schedule of Hindu Succession Act have got a preferential right to acquire property when one of the heirs proposes to transfer his interest in the property to a third party. The heir who offers the highest consideration for the transfer has to be preferred for such transfer. The Court has been given power to determine the consideration for which the interest in the property in dispute of the deceased is to be transferred. No doubt, the plaintiff- petitioners have not specifically claimed any C.R. No. 3527 of 2010 (O&M) [5] preferential right to acquire the property on payment of the consideration to be determined by the Court but they have merely challenged the validity of the sale deed in the pleadings without there being any prayer for setting aside the proceedings. It will be a debatable issue “whether suit is maintainable under Section 22 of the Hindu Succession Act, keeping in view the pleadings?. The preferential right to acquire property under Section 22 of Hindu Succession Act can be claimed before the property is transferred. But the provisions of Punjab Pre-emption Act, 1913 is traceable to different sources i.e. to village custom in India, to the Mohd. Law and to the enacted law. The sources of the obligation to which the right of preemption in a Village corresponds is that the subject of sale is a thing viewed as conjointly held by a group of which the vender is a member. A member of a group is incompetent to sell part of the thing conjointly owned irrespective of their consent. Section 22 of the Punjab Pre-emption Act, 1913 reads as follows:- “22. Plaintiff may be called on to make deposit or to file security:- (1) In every suit for pre-emption the Court shall at, or at any time before, the settlement of issues, require the plaintiff to deposit in Court such sum as does not, in the opinion of the Court, exceed one-fifth of the probable value of the land or property, or require the plaintiff to give security to the C.R. No. 3527 of 2010 (O&M) [6] satisfaction of the Court for the payment, if required, of sum not exceeding such probable value within such time as the Court may fix in such order. (2) In any, appeal the appellate Court may at any time exercise the powers conferred on a Court under sub-section (1) . (3) Every sum deposited or secured under sub-section (1) or (2) shall be available for the discharge of costs. (4) If the plaintiff fails within the time fixed by the Court or within such further time as the Court may allow to make the deposit or furnish the security mentioned in sub-section (1) or (2), his plaint shall be rejected or his appeal dismissed as the case may be. (5) (a) If any sum so deposited is withdrawn by the plaintiff, the suit or appeal shall be dismissed. (b) if any security so furnished for any cause becomes void or insufficient, the Court shall order the plaintiff to furnish security or to increase the security, as the case may be, within a time to be fixed by the Court, and if the plaintiff, fails to C.R. No. 3527 of 2010 (O&M) [7] comply with such order, the suit or appeal shall be dismissed. (6) The estimate of the probable value made for, the purpose of sub-section (1) shall not affect any decision subsequently come to as to what is the market value of the land or property.” In order to test the bonafide of the plaintiffs and to discourage unnecessary and frivolous and vexatious litigation, a preemption Court can require the plaintiffs to deposit in the Court such sum which does not exceed 1/5th of the probable value of the property in dispute. A Court is entitled to ask the plaintiffs to give security to the satisfaction of the Court for payment, if required of a sum not exceeding such probable value within such time as the Court may fix by order. Main grievance of the plaintiff- petitioners in the present case is that there is no provision in the Hindu Succession Act to require the defendant- plaintiffs to deposit 1/5th of the probable value of the property in dispute. Such provisions of Section 22 of the Punjab Pre-emption Act is a device to test the readiness and willingness of the plaintiffs to purchase the property. Even in cases of suit for specific performance, a discretion is given to a Court to require the plaintiffs to deposit in the Court any amount to establish the readiness and willingness of a party to perform the essential terms of contract which are to be performed by him. The direction passed by the trial Court to the plaintiff- petitioners to deposit 1/5th of the amount of C.R. No. 3527 of 2010 (O&M) [8] sale consideration as preemption money is not illegal order but since the plaintiffs have neither specifically sought preemption under the provisions of Punjab Preemption Act nor claimed a preferential right to acquire the property under Section 22 of the Hindu Succession Act, the direction to deposit 1/5th share of the amount of sale consideration appears to be harsh. No doubt, the impugned order is an effective device to nip the frivolous litigation in the bud. The order passed by the trial Court is apparently an act in consonance with the direction of the Supreme Court of India in T.Arivandandam Vs. T.V. Satyapal, AIR 1977 SC 2421 laying down that if clever trafficking has created illusion of a cause of action, the Court should nip it in the bud at the first hearing by examining the party searchingly under Order 10 CPC. An activist Judge is the answer to the irresponsible law suits. The trial Court should insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. Since the application under Order 7 Rule 11 CPC filed by the plaintiff- petitioners is still to be adjudicated upon and the parties are yet to be examined as per Order 10 CPC, without prejudice to the authority of the trial Court to pass any order in the said proceedings, the direction issued vide impugned order to deposit 1/5 th pre-emption money is hereby set aside but it is observed that in case on examination of the parties if the Court arrives at a conclusion that the plaintiff- petitioners are claiming a preferential right to acquire the property and that they want to purchase the C.R. No. 3527 of 2010 (O&M) [9] property by enforcing their preferential right, it will be open to the trial Court to impose any condition either for depositing the preemption money or to ask for some security on the basis of the statements or intentions of the plaintiff- petitioners. It is made clear that the direction passed by the trial Court vide order dated April 23, 2010 is not illegal but seems to have been passed at the initial stage without giving an opportunity to the plaintiff- petitioners to express their actual intentions to preempt the sale claiming preferential right to acquire the property. Allowed in the aforesaid terms. February 21, 2012 (M.M.S.BEDI) sanjay JUDGE