CR No.387 of 1992 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.387 of 1992 Date of Decision: 3.12.2008 Miss Manju ....Petitioner Vs. Smt.Lajwanti (dead) through L.R. & Anr. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.R.C.Dogra, Sr.Advocate, with Mr.N.C.Dogra, Advocate, for the petitioner. None for the respondents. Vinod K.Sharma,J. This revision petition has been directed against the order dated 8.11.1991 passed by the learned Sub Judge First Class, Phagwara allowing an application filed by the plaintiff/respondent No.1 under section 22 of the Hindu Succession Act, 1956 (for short the Act) to enforce her preferential right of purchase the house. The respondent/plaintiff claimed that Ram Chand, Ram Parkash, Ram Nath and Tirlok Chand were real brothers being sons of Birbal. The respondent/plaintiff is widow of Ram Parkash who also died during the pendency of the case and her daughter Kamal was impleaded as CR No.387 of 1992 2 legal representative. The case set up by the respondent/plaintiff is that after the death of Birbal house in dispute was inherited by Ram Chand, Ram Parkash, Ram Nath and Tarlok Chand. Ram Chand purchased the share of Tarlok Chand vide Ex.R.5 and also that of Ram Nath vide sale deed dated 12.6.1970. Ram Chand thereafter sold his share as well as the share of Ram Nath and Tarlok Chand which was purchased by him to Ms. Manju, the petitioner. Respondent Lajwanti widow of Ram Parkash filed the petition under Section 22 of the Act to acquire preferential right in the house in dispute fully described in head note of the petition by claiming that the house and one taur on the Southern side was the HUF property of Birbal and his four sons referred to above. It was pleaded that after the death of Birbal the above house and adjoining taur devolved upon his four sons. It was also the case set up that out of the property devolved upon four brothers, Ram Narth got the adjoining taur in lieu of his share and rest of the property i.e.house in dispute remained with three brothers to the extent of 1/3rd share each. The respondent/plaintiff claimed that Ram Parkash one of the legal heirs of Birbal i.e. the husband of the plaintiff died few years back and that the plaintiff was in possession of 1/3rd share of the property in dispute being the widow of Ram Parkash. The respondent/plaintiff died on 5.2.1989 during the pendency of the appeal and Smt. Kamla was impleaded as party to the suit. The case set up is that Ram Chand was also co-owner to the extent of 1/3rd share in the suit property and he had purchased share of his CR No.387 of 1992 3 third brother Tarlok Chand also. He sold his share to petitioner/defendant No.2 for a sum of Rs.500/- vide sale deed dated 9.5.1988. It was claimed that in view of the facts pleaded above, respondent/plaintiff was entitled to purchase the share of other co-owners in preference to third party. It was also pleaded that actually the share of Ram Chand after purchasing the share of Tarlok Chand was only 2/3rd. Petition was contested and a preliminary objection was raised that the respondent had no cause of action to file the petition. Her locus standi to file the petition was also challenged. On merit it was pleaded that plot adjoining the house was purchased by Ram Nath from his father Birbal vide sale deed dated 29.6.1950 for a consideration of Rs.400/-. It was also the case that said plot did not devolve upon his four sons after his death. The petitioner claimed that all the four brothers became co-sharers in the house in dispute after the death of Birbal out of which Ram Chand purchased the share of Tarlok Chand and Ram Nath and he was entitled to sell 3/4th share in the house in dispute to petitioner. Ram Chand was proceeded ex parte. Learned trial court held that the house in dispute was HUF property in the hands of Birbal deceased. In order to reach this conclusion the trial court observed that the petitioner failed to lead any evidence to show that the property in dispute was individual property of Birbal, therefore, it is HUF property on the basis of the pleadings. The finding cannot be accepted. It was for the respondent/plaintiff to have proved the fatum of property being co- parcenary property in the hands of Birbal. There is no evidence in this CR No.387 of 1992 4 regard. Therefore, the finding of learned Court on issue No.1 cannot be sustained and it has to be held that the defendant/petitioner has failed to prove that the property in dispute was co-parcenary property in the hands of Birbal. The court also held that the respondent/plaintiff had a preferential right to purchase the house in dispute. This reasoning was arrived at by observing that after the death of Birbal, Ram Nath was not given any share in the house in dispute because he was given the plot adjoining the house in dispute and in lieu of his share in the house vide sale deed dated 29.6.1950 Birbal had sold the plot to Ram Nath and therefore, he also had share in the house in dispute. The court observed that in view of the pleadings of the parties Birbal had only 1/5th share in the property in dispute and that all the four sons had 1/5th share each in the house and it was his 1/5th share which devolved upon his four sons. This finding is also not sustainable in the absence of proof that it was an ancestral co-parcenary property in the hands of Birbal sons could not be said to have any share in the said property. Section 22 of the Hindu Succession Act reads as under:- “22. Preferential right to acquire property in certain cases: 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 CR No.387 of 1992 5 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. 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.” Learned court below interpreted Section 22 of the Act to mean that the plaintiff/respondent No.1 had a preferential right to purchase 1/5th share of the suit house which was inherited by four sons of Birbal. It was held that she had preferential right over 1/5th share with each of sons of Birbal and thus, was entitled to 4/5th share. Mr.R.C.Dogra, learned senior counsel appearing on behalf of the petitioner contended that the finding recorded is the outcome of misreading of Section 22 of the Act. CR No.387 of 1992 6 The contention of the learned senior counsel appearing on behalf of the petitioner is that admittedly Birbal was the owner of the property in dispute which was inherited by four sons. Ram Chand purchased the share of Ram Nath and Tarlok Chand and on the date of said sale respondent/plaintiff had no right under section 22 of the Act as she could not be said to be heir specified under Class I of the Schedule. It is also the contention of the learned senior counsel for the petitioner that with regard to the sale by Ram Chand the respondent plaintiff cannot claim any right as she is not heir specified in Class I qua Ram Chand in order to claim preferential right under Section 22 of the Act. There is force in the contention raised by the learned counsel for the petitioner. Once the respondent/plaintiff did not qualify to claim preferential right of purchase petition filed was misconceived and deserved to be dismissed. Consequently, the revision petition is allowed. The impugned order is ordered to be set aside and suit filed under Section 22 of the Hindu Succession Act, 1956 is ordered to be dismissed with no order as to costs. 3.12.2008 (Vinod K.Sharma) rp Judge