Orissa High Court
Smt. Kamala Kumari Bohara vs Harekrishna Ghadei And Ors. on 7 January, 1998
Equivalent citations: AIR1998ORI196, AIR 1998 ORISSA 196
Author: P.K. Misra
Bench: P.K. Misra
JUDGMENT P.K. Misra, J.
1. Defendant No. 1 is the appellant against a confirming decision. Plaintiff-respondent No. 1 filed O.S. No. 182 of 1979 for declaration that the transfer of the disputed property is void and in the alternative, to allow the plaintiff to re-purchase the disputed land.
2. Plaintiff is the son of one Bhikari Ghadei. Defendant No. 1 is the alienee from Gurbari, widow of Bhikari Ghadei and defendants 2 and 3 are the daughters. It is claimed that the disputed land is the ancestral property of Bhikari Ghadei who expired in the year 1971. Thereafter, on 18-1-1974 plaintiffs mother Gurubari alienated the disputed property for Rs. 100/- in favour of defendant No. 1 by executing a sale deed for herself as well as on behalf of her minor son, the plaintiff. On receipt of notice in Mutation Case No. 5012/76, the plaintiff came to know about the illegal allegation by his mother and thereafter filed that suit on 14-12-1979 claiming that he is not bound by the sale deed (Ext.A). It was further claimed that the sale deed was also not binding in respect of his mother's share and alternatively, it was prayed that the disputed property which was homestead land should be re-conveyed in favour of the plaintiff on refund of consideration.
3. Defendant No. I in her written statement pleaded that Ext. A, the sale deed, had been duly executed for legal necessity and the plaintiff as well as defendants 2 and 3 are bound by the same.
4. The trial Court decreed the suit on a finding that due execution of Ext. A had not been proved and no consideration had passed under Ext. A and as such the document was void. It was also found that the prayer for re-purchasing the property was not maintainable in the absence of a prayer for partition of the entire disputed land.
5. In Appeal by defendant No. 1 the lower appellate Court held that Ext. A, the sale deed was voidable in view of the provisions contained in Section 8(2) of the Hindu Minority and Guardianship Act, 1956, inasmuch as no permission had been obtained by the mother-guardian for alienating the properly of the minor. It further found that the document had been duly executed and consideration had been paid and there was legal necessity for the sale and as such the sale deed was valid so far as it related to hall share of plaintiffs mother in the disputed property. However, applying the provisions contained in Section 22 of the Hindu Succession Act, 1956, the lower appellate Court directed that the plaintiff was entitled 13 re-purchase the suit land on payment of Rs. 100/- which was the consideration amount. The aforesaid decision of the lower appellate Court is under challenge at the instance of defendant No. 1.
6. In this appeal, it is contended that the trial Court having refused the prayer of the plaintiff for re-purchase of the land, and in the absence of any independent appeal or cross-objection by the plaintiff against the said direction, the lower appellate Court could not have passed a decree for re-purchase of half share representing the interest of plaintiff's mother. It is further submitted that the appellate Court's finding that Ext. A was valid and binding in respect of the half interest of plaintiff's mother having not been challenged, is binding and since the relief for re-purchase under Section 22 of the Hindu Succession Act had not been claimed and could not have been granted, defendant No. 1's right in respect of the disputed property should be upheld. In this connection it is also submitted that Section 22 of the Hindu Succession Act docs not apply to completed transfer and, at any rate in the absence of a separate suit to enforce the right of pre-emption, such relief could not have been granted by the lower appellate Court.
7. The, finding of the lower appellate Court that there was due execution of Ext. A and the mother had sold the property for herself as well as on behalf of the minor for legal necessity, is apparently a finding of fact which has not been successfully challenged by the plaintiff respondent in any manner. The question, however, arises as to whether the said transaction is not binding on the minor as a admittedly permission under Section 8 of the Hindu Minority and Guardianship Act had not been obtained. The learned counsel for the appellant has submitted that since mother was the Karta, she had every right to alienate any property belonging to joint family for legal necessity. Admittedly, the property was the ancestral property of Bhikari Ghadei and on his death in 1971, his interest in the property devolved upon various heirs as contemplated in Section 6 of the Hindu Succession Act. Under Section 19 of the Hindu Succession Act, the persons inheriting property under the Act hold the property as tenants-in-common and not as joint tenants. Besides, on the death of Bhikari Ghadei, the plaintiff though minor, became the sole surviving coparcener. Though Gurubari as mother was the guardian of the minor, it cannot be said that she was the Karta of the joint family having the same rights of a regular Karta in a joint family regarding alienation. Admittedly, no permission had been taken under Section 8 of the Hindu Minority and Guardian ship Act. Therefore, the lower appellate Court rightly concluded that the alienation so far as it related to the interest of the minor son, was not binding on the plaintiff.
8. The next question is as to whether the plaintiff has the right to re-purchase the interest of his mother which was also sold to defendant No. 1. Section 22 of the Hindu Succession Act is definitely attracted to such a situation. However. it is contended by the counsel for the appellant that Section 22 has no application to a completed transfer and, at any rates, a regular suit for preemption should have been filed. In the suit itself the plaintiff had prayed 'for re-purchasing the property by applying the principles of Section 4 of the Partition Act. Merely because there was no reference to Section 22 of the Hindu Succession Act, it cannot be said that the suit was not one for pre-emption. Whether or not the provisions of Section 4 of the Partition Act were attracted, the fact remains that there was a prayer by the plaintiff for re-purchasing the property. The terms of Section 22 appear to be wider than the provision contained in Section 4 of the Partition Act. Since admittedly, the plaintiff and his mother had succeeded to the interest of Bhikari Ghadei, the provisions contained in Section 22 of the Hindu Succession Act were squarely applicable. The decisions reported in 1987 (1) ILR 211, Bhaskar Chandrd Barik v. Bishnu Chandra Pradhan, arid 1985 (1) OLR 488, Muralidhar Das v. Bansidhar, are not applicable to the facts of the present case. In the aforesaid two cases, the main question was as to whether the right under Section 22 of the Hindu Succession Act can be enforced even after a completed transaction by filing an application. Differing from the view expressed earlier by this Court, in the aforesaid two cases it was hold that by filing a mere application, the right under Section 22 cannot be exercised in cases where there was already a completed transaction and in such cases, a regular suit has to be filed. As already indicated, in the present suit, there was a specific prayer for repurchasing the property and as such, the principles laid down in the aforesaid two decisions do not run contrary to the facts and circumstances of the present case.
The lower appellate Court had directed that the plaintiff can re-purchase the property by paying Rs. 100/-. The valuation, which is based on the consideration amount reflected in the sale deed, has not been challenged as such and need not be interfered with.
9. For the aforesaid reasons. I do not find any merit in this appeal, which is accordingly dismissed. There will be no order as to costs.