CIVIL REVISION No.1505 OF 2008 Against the order dated 28.08.2008 passed by Shri R.P. Tiwari, Munsif III, Ara in Miscellaneous Case No. 1 of 2008 VINOY KUMAR, son of Late Bindeshwari Prasad, resident of village Sarathua, P.S. Udwantnagar, District Bhojpur ----------------Applicant/Petitioner Versus 1. SMT.RAMA SHRIVASTAVA wife of Late kiran Shankar Shrivastava, resident of village Sarathua, P.S. Udwantnagar, District Bhojpur 2. Manish Shrivastava 3. Sandip Kumar 4. Sudip Kumar, All sons of late Kiran Shankar Shrivastava, resident of village Sarathua, P.S. Udwantnagar, District Bhojpur Opp. Party (First Set) … Opposite Parties 5. Ram Dhiraj Singh, Son of late Hari Singh 6. Ram Ishwar Singh, Son of late Nand Kumar Singh, Both residents of village Sarathua, P.S. Udwantnagar, District Bhojpur --------Opposite Parties (Second set)/Opposite Parties For the Petitioner : M/s Sunil Singh and Arvind Kumar Tiwari, Advocates For O.P. Nos. 1 & 2 : Mr. Santosh Kumar Sinha, Advocate For O.P. No. 5 : Mr. Rajiva Ranjan, Advocate P R E S E N T THE HON'BLE MR. JUSTICE DR. RAVI RANJAN ….. Dr.Ravi Ranjan,J. This civil revision is directed against the order dated 28.8.2008 passed by Munsif III, Ara, in Miscellaneous Case No. 1 of 2008, whereby he has dismissed the case of the petitioner seeking preferential 2 right to acquire the property concerned. The case of the petitioner is that besides other properties the petitioner and the opposite parties have ancestral house at their village Sarathua appertaining to khata no. 579, khesra no. 3819, 3816/6768, 3840 of total area being 14 decimals, which stood detailed in his petition filed before the court below. It has been alleged that both the sides claim their right and share upon the aforesaid house, however, the opposite parties first set mostly reside at Dhanbad. The petitioner learnt that opposite party was intending to sell her share and house. It has been stated that upon preliminary discussions between the parties on 10.5.2006 Rs. 28,000/- was paid to the opposite party no. 1. Further case of the petitioner is that the opposite party no. 1 kept on taking some money time to time from the petitioner and his wife assuring that she will return the money. Thereafter, the petitioner insisted that defendant no. 1 should receive appropriate price and execute a registered sale deed in favour of the petitioner with regard to her share and interest in the ancestral house. However, she kept postponing the matter on one 3 pretext or the other. The petitioner, however, was always ready to purchase the share of the concerned defendants , i.e., 7 decimals out of 14 decimals of the land and the house standing thereupon on the payment of adequate price. Further allegation is that on 21.1.2008, when the petitioner met the defendant no. 1 and insisted for transfer then she stated that she will return the money of the petitioner as she was getting more price from somebody else. Ultimately it has been stated that a complaint was made before the registration authority with a request to refuse registration of any such sale deed executed by the opposite party. However, thereafter, the present Misc. Case No. 1 of 2008 was filed on 21.1.2008 under Section 22(1) of the Hindu Succession Act, 1956(hereinafter to be referred to as “the Act”) seeking preferential right of acquiring the aforesaid property. The opposite parties appeared before court and contested the case by stating that the property in question is exclusive one of opposite parties and the same has already been transferred to opposite party 2nd set vide registered sale deeds dated 21.1.2008 and 23.1.2008 on receipt of consideration money of Rupees 4 two lacs. The court below upon consideration of the materials on record has come to the conclusion that the claim of pre-emption cannot be decided in favour of the petitioner as he is not a Class I heir of the deceased whose share has been transferred and secondly that since the property has already been transferred by the opposite party nos. 1 in favour of the opposite party 2nd set, the application under Section 22 of the Act would not be maintainable as the same is only available against a proposed transfer. The court below has placed reliance upon the decision of this Court rendered in Ram Udar Rai v. Ram Chandra Rai, 2004(2) PLJR 191. It has been held therein that after the completion of transfer the sale would be voidable and the same cannot be avoided unless such a declaration is given by the court of competent jurisdiction. Thus, such relief can only be granted in a regular suit instituted for declaring the document to be void. I have heard the parties and perused the records of this case. Learned counsel appearing for the petitioner 5 submitted that the court below has misdirected itself in holding that after the transfer has taken place an application for pre-emption would not be maintainable. It had been submitted that aforesaid finding of the court below is in teeth of law laid down by this Court in Gopal Prasad v. Baushidhar Singh, AIR 2000 Patna 240 wherein it has been held after interpretation of the Civil Court Rules of Patna High Court, Part 4, Chapter 1, Rules 454 to 459 that for enforcement of right of pre-emption the claiming party can make an application before the court of competent jurisdiction and such application shall be registered as Miscellaneous Judicial Case . For the aforesaid purpose no regular suit is required to be filed. It had been urged on behalf of the petitioner that the court below has completely failed to appreciate the scope and sweep of the statutory provision as contained in Section 22 of the Act, while holding that since the applicant is not a Class I heir, such right would not be available to him. On the other hand, learned counsel appearing for the opposite party nos. 1 and 2 submitted that from bare reading of the statute, that is Section 22 of the Act, 6 it would be manifest that such right would be available only to the heirs of Class I category as described in schedule of the Act and the petitioner, not being the Class I heir of the late Kiran Shankar Shrivastava@ Rajeshwari Prasad whose share has been transferred, is not competent to seek a right of pre-emption over the property in terms of Section 22 of the Act. Before appreciating the rival contentions of the learned counsel, it would be useful to look into the provisions of Section 22 of the Hindu Succession Act which reads as under:- “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 of 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 7 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 persons 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.” From bare perusal of the aforesaid provision, it is manifest that the same confers a preferential right on the heirs mentioned in Class I of the Schedule of the Act to acquire an interest in the immovable property or any business carried out by him or her . Such right is only available if any one of such heirs proposes to transfer his interest in the property. Thereafter, power 8 has been conferred on the court to determine, the consideration money for transfer of such interest in absence of any agreement between the parties. The following questions crop up in this case for consideration:- (1) Whether the petitioner is entitled to stake his claim under Section 22 (1) of the Act for preferential right to acquire property in question ? (2) Whether Miscellaneous Judicial Case is a proper remedy for deciding such claim? (3)Whether such claim can be decided by a Court in a Miscellaneous Judicial Case even if the same is staked after completion of transfer of the interest / property by executing registered sale deed or the remedy would be filing of a regular suit ? A genealogical table has been given in paragraph 2 of this application. The opposite party no. 1 has admittedly transferred the interest inherited by herself and her sons with respect to half of the disputed properties which belonged to late Kiran Shankar Shrivastava, i.e., her late husband. From the Schedule 9 attached to the Hindu Succession Act, 1956, with reference to Section 8, i.e., general rules of succession in the case of Male Hindu dying intestate, it would be manifest that brother‟s son would fall into the category Class II heir. Thus , the petitioner being son of the brother of aforesaid Late Kiran Shankar Shrivastava, namely Bindeshwari Prasad, cannot be held to be a Class I heir of late Kiran Shankar Shrivastava whose interest was being transferred. A Division Bench of this Court in Bhola Nath Rastogi & ors. v. Santosh Prakash Arva & ors., AIR 1975 Patna 336, while dealing with the subject had held that by use of the words “heirs specified in Class I of the Schedule” in Section 22(1) of the Act, it is clearly intended that this Section has no application to a case where the property devolves by rule of survivorship on surviving coparceners. Thus, in the case in hand, when the aforesaid late Kiran Shankar Shrivastava has died leaving behind a female heir of Class I category, that is his widow, opposite party no. 1, the petitioner being either a surviving co-parcener or being heir of a Class other than that of Class I category of the Schedule of 10 the Act, is definitely ousted for the relevant purposes. Thus, in the opinion of this Court, the petitioner is not entitled to stake such a claim of preferential right under Section 22 of the Act. The second question would be as to whether miscellaneous case could have been filed by the petitioner or a regular suit would be maintainable for such right. This Court in Gopal Prasad (supra), after considering the details of the provisions as contained in Part IV, Chapter I, Rules 454 to 459 of the Civil Court Rules of the Patna High Court has held that a party need not file a regular civil suit for staking such a claim rather such application shall be registered as Miscellaneous (Judicial) Case. This issue has also been discussed in detail in Ram Udar Rai(supra). It has been held that if there is proposal to transfer the land and a competent person approaches the Court at that point of time then the appropriate remedy would by filing an application the Court which would decide the controversy. However, once the transfer has been completed, the transferee acquires title over the property and sale becomes a voidable one and not void, thus, it 11 cannot be avoided while granting relief in terms of Section 22 of the Act in a Miscellaneous (Judicial) Case. Therefore, the proper remedy to acquire such preferential right would be by way of filing a regular civil suit before the court of competent jurisdiction and such relief can only be granted by the court after declaring the sale deed a void document. However, it appears that in Gopal Prasad (supra), the issue regarding aforesaid distinction between claim against “proposed transfer” and that “after completion of transfer” was neither raised nor appears to have been considered. That issue has been discussed and considered in detail by the learned Single Judge in Ram Udar Rai (supra). I fully agree with the views taken by the learned Single Judge of this Court in Ram Udar Rai (supra) and hold that if a claim under Section 22(1) of Act is to be staked against a proposed transfer of interest then the proper forum would be a Miscellaneous Judicial Case, however, if such a claim of preferential right is being staked after completion of transfer then the remedy would be filing of a regular civil suit. 12 Lastly, it has been submitted on behalf of the petitioner that one of the sale deeds seems to have been executed after institution of the suit and, thus, this case would fall into the category of claim against a proposed transfer. Therefore, it was contended that the court below should have decided the issue in favour of the petitioner. In my opinion, the aforesaid question, as to whether the claim of the petitioner would fall into the category of “proposed transfer” or “a claim after completion of transfer”, is not required to be decided in this case as I have already held that the petitioner, not being one of the Class I heirs of late Kiran Shankar Shrivastava, is not a competent person to stake a claim under Section 22(1) of the Act. As a result, this civil revision fails and is, accordingly, dismissed. However, there shall no order as to costs. The Patna High Court The 6th September, 2010 Spd/ AFR ( Dr. Ravi Ranjan, J.)