Orissa High Court
Ganesh Chandra Pradhan vs Rukmani Mohanty And Ors. on 31 March, 1970
Equivalent citations: AIR 1971 ORISSA 65
JUDGMENT R.N. Misra, J.
1. An application was made before the learned Munsif at Balasore purporting to be under Section 22 of the Hindu Succession Act, 1956 (hereinafter referred to as the Act). The applicant being a minor, the application was made through his father. A short genealogy is appended below to indicate the relationship of the parties inter se.
MAHESWAR = wife GANGAMANI
|
___________|_____________
| | |
Ganesh Rukmani Gayamani
(Petitioner) (O.P.1) (O.P.2)
Gangamani received the property in question under a registered deed of gift dated 1-12-55 from her father. She died in the early part of 1960 leaving behind the petitioner and opposite parties 1 and 2 to succeed to the said property. Admittedly these persons are class I heirs in respect of the estate of Gangamani. Rukmani is already married. Gayamani who is not married and who has asserted in her written statement that she has already attained majority lives with Rukmani the elder sister.
2. An application was made before the learned Munsif on 16-2-68 on the allegation that on 30-1-68 opposite parties 1 and 2 had sold away their share in the property to a stranger opposite party No. 3 in violation of the preferential right conferred on the petitioner under Section 22(1) of the Act. In that application it was stated that opposite parties 1 and 2 did not propose to sell, or offer for sale of the land in question to the petitioner and with a view to depriving him of the benefit of the land they have executed a sale deed in favour of opposite party No. 3 putting an imaginary consideration which is very much higher than what is the market value of the land. The petitioner indicated his willingness to pay such rate as may be determined by the court.
3. That application was resisted by all the three opposite parties in a joint objection. Apart from denying some of the allegations in the application it was stated that the sale in question was negotiated by Maheswar, the father of the petitioner and opposite parties Nos. 1 and 2. Since Maheswar had knowledge of the alienation the present application is mala fide and cannot be entertained. The consideration money out of the sale deed was meant to be utilised for the marriage of opposite party No. 2 when it would take place.
4. This application was registered as a Miscellaneous Proceeding by the learned Munsif. Initially there was an objection raised regarding the frame of the application and its maintainability as a miscellaneous case. But by order No. 5 dated 29-3-68 the learned Munsif held that such an application was maintainable and proceeded to dispose of the case on merit. Two witnesses for the petitioner Including father were examined, while on behalf of the opposite parties the son of the purchaser was examined. The learned Munsif dismissed the application. He gave the following reasons:--
"Undisputedly petitioner and opposite parties Nos. 1 and 2 are Class I heirs of the schedule and out of them one can claim preferential right to purchase the land while the other is proposing to sell the same. But the said right being the personal right of the heirs it is very much doubtful if the same can be enforced by the petitioner through his father who has mo such right. Further the sale has been concluded and the title passed to the hands of the vendee and the transaction is now past the stage of mere proposal. There is no specific provision in the Act regarding the procedure and the manner in which the right is to be asserted and in this regard the procedure under Mohamadan Law cannot be applied here. But it appears to me that this right has got to be asserted by the petitioner himself and that before the sale was concluded. That having been done I hold that the petition is not maintainable."
5. As this proceeding in the court below was registered as a miscellaneous one and there is no clear indication in the law of procedure as to whether this order is appealable or not, a revision application under Section 115, C.P.C., has been filed in this Court. No objection has been taken regarding its maintainability either from the Stamp Reporter or on behalf of the opposite parties. I, therefore, proceed on the footing that the revision application in this court is maintainable to impugn the order of the learned Munsif.
6. Section 22 of the Act makes the following provision:--
"22. Preferential right to acquire property in certain cases:--
(1) Where, after the commencement of this Act. an interest in any immoveable 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.
(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 ............".
It has been stated by the Judicial Committee of the Privy Council as also the Supreme Court that pre-emption was not known to Hindu Law. In AIR 1954 SC 417, Audh Behari v. Gajadhar. Mukherjea, J. as he then was, stated, "The Privy Council has said in more cases than one, vide-- 'Jadulal v. Janki Koer' 39 Ind App 101 at p. 106 (PC) (A) 'Digambar Singh v. Ahmad Sayeed Khan', AIR 1914 PC 11 at p. 14 (B), that the law of pre-emption was introduced in this country by the Muhammadans. There is no indication of any such conception in the Hindu Law and the subject has not been noticed or discussed either in the writings of the Smriti writers or in those of later commentators. Sir William Macnaghten in his Principles and Precedents of Mahomedan Law, vide page 14, has referred to a passage in the 'Mahanirvana Tantra' which, according to the learned author, implies that pre-emption was recognised as a legal provision according to the notion of the Hindus. But the treatise itself is one of mythology, not on law and is admittedly a recent production. No value can be attached to a stray passage of this character the authenticity of which is not beyond doubt."
Section 22 of the Act also does not refer to a peremptory right, but describes the right as a preferential one. The learned counsel at the Bar on either side could not place a precedent dealing with the provisions of Section 22 of the Act. I have also not been able to find any precedent in the matter.
7. Commentators have expressed their dissatisfaction about the provision. The Editor of Mulla's Hindu Law has stated:
"The section requires more explicit and stringent language. It does not say how and when the right of preference is to be exercised. It is loosely worded and the expression 'transfer' itself is likely to create some difficulty. It could not have been intended to apply, for instance, to transfer of interest by way of mortgage. Probably the operation of the rule was meant to apply to an out and out sale of the interest or a gift of the same to an outsider. Sub-section (2) would seem to indicate such intention. Moreover there is the danger of subtle devices being resorted to for defeating the object underlying the section."
Raghavachariar in his Commentary on Hindu Law has stated that the provisions contained in this section are full of anomalies and the right that has been conferred by the Parliament on the heirs in Class I of the Schedule is likely to be affected by the dog-in-the-manger policy and a co-heir who is not amicably disposed towards another heir would possibly find it convenient to thwart the enjoyment of the land by the co-heir. Certain other authors have also indicated that the right that has been conferred under Section 22 of the Act is either deceptive or is likely not to fulfill the purpose for which provision has been sought to be made. Some authors have taken the view that it is not a peremptory right and since it is a personal one and is not available to be exercised against the transferor co-heir, the said right has to be exercised before the transfer is complete. The act does not make any provision for making of any rules, and therefore should have made all provisions necessary for giving effect to the provisions contained therein. There is little scope to doubt the contention raised at the Bar that the provisions contained in Section 22 of the Act are indeed not very happy and the purpose of the legislation is likely to be frustrated on that account.
8. There is, however, no doubt that a right which has been described as preferential right "to acquire the property" has been conferred on the non-transferee co-heirs. Though a statutory duty has not been cast on the transferor co-heir to notify his intention of transfer to the other class I co-heirs and though it is not indicated at what point of time the provisions of Section 22 of the Act are to be enforced, that there is a right conferred under Section 22 on the other class I co-heirs to exercise a claim of preference cannot be ruled out.
9. Courts have always leaned in favour of supporting a right when a right is indisputably conferred by a statute. Once the true intention of a legislation is apparent, by adopting various doctrines of interpretation the courts have given effect to such intention. In the present case the legislative intention is apparent. Clause 24 of the Joint Committee Report had stated, "The Joint Committee have come to the conclusion that it would be just and proper to provide that in case any heir desires to transfer his or her interest in the property inherited under the provisions of this Act, the right of pre-emption should be given to the others."
In fact the original Bill had contained a more specific provision. Section 37 of the Original Bill read, "Where, after the commencement of this Act a share in any immoveable property of an intestate or In any business carried on by such intestate, whether solely or in conjunction with others,--
(a) devolves upon one or more of the intestate's son, son's son, son's son's son, together with other relatives, and one of the latter sues for partition, or
(b) devolves upon a female heir, together with any of the male relatives specified in Class I of the Schedule and any one of such male relatives compels the female heir to take her share of the property of the intestate for separate enjoyment (which he is hereby empowered to do), the provisions of the Partition Act. 1893 (IV of 1893) shall apply as if there was a partition and as if he or she were the transferee of a share of a dwelling house and the intestate family were an undivided one."
Ultimately when the section came to be treated by the Parliament the language was, however, altered and it has been expressed in the manner already indicated by extracting the section.
10. There is, however, no dispute that a beneficial provision so far as the remaining class I heirs were concerned was meant to be provided in this section. It was held by Viscount Simon, L.C. in 1940-3 All ER 549, Nokes v. Doncaster Amalgamated Collieries:
"Judges are not called upon to apply their opinions of sound policy so as to modify the plain meaning of statutory words, but, where in construing general words the meaning of which is not entirely plain, there are adequate reasons for doubting whether the legislature could have been intending so wide an interpretation as would disregard fundamental principles, then we may be justified in adopting a narrower construction. At the same time, if the choice is between two interpretations the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility, and should rather accept the bolder construction, based on the view that Parliament would legislate only for the purpose of bringing about an effective result."
Dealing with the same problem Venkatarama Aiayar, J., spoke for the court in AIR 1959 SC 352, I.-T. Commr. v. S. Teja Singh thus:--
"A construction which leads to such a result must, if that is possible, be avoided, on the principle expressed in the maxim 'ut res magis valeat quam pereat' Vide Curtis v. Stovin (1889) 22 QBD 513 and in particular the following observations of Fry L. J. at page 519 :
'The only alternative construction offered to us would lead to this result, that the plain intention of the Legislature has entirely failed by reason of a slight inexactitude in the language of the section. If we were to adopt this construction, we should be construing the Act in order to defeat its object rather than with a view to carry its object into effect'."
Maxwell on the Interpretation of Statutes was also quoted with approval in the same decision of their Lordships of the Supreme Court. The relevant portion runs to the following effect:--
"A statute is designed, observed Lord Dunedin in Whitney v. Commissioner of Inland Revenue. 1925-10 Tax Case 88 at p, 110, to be workable, and the interpretation thereof by a court should be to secure that object unless crucial omission or clear direction makes that end unattainable."
In similar terms Sarkar J.. as he then was, spoke in AIR 1963 SC 1062, Gursahi v. I.T. Commr. He said, "The proper way to deal with such a provision is to give it an interpretation which, to use the words of the Privy Council in Mahaliram Ramjidas's case, AIR 1940 PC 124, 'makes the machinery workable, ut res valeat potius quam pereat'. We, therefore, think that we should read Sub-section (6), according to the provisions of which interest has to be calculated as provided in Sub-section (8) in a manner which makes it workable and thereby prevent the clear intention of Sub-section (8) being defeated."
Sarkar J., as he then was, in AIR 1965 SC 666. Avtar Singh v. State of Punjab, stated, "Such an interpretation is not permitted for 'the words of an Act of Parliament must be construed so as to give sensible meaning to them. The words ought to be construed ut res magis valeat quam pereat'."
Quoting the authority of Heydon's case, (1554) 76 ER 637 which was approved by their Lordships of the Supreme Court in the Bengal Immunity Case. AIR 1955 SC 661, Ramaswamy J. stated in AIR 1967 SC 986. Shivanarayan v. State of Madras.
"It is a sound rule of interpretation that a statute should be so construed as to prevent the mischief and to advance remedy according to the true intention of the makers of the statute. In construing, therefore, Section 2(1)(c) of the Act and in determining its true scope it is permissible to have regard to all such factors as can legitimately be taken into account in ascertaining the intention of the legislature, such as the history of the statute, the reason which led to its being passed, the mischief which it intended to suppress and the remedy provided by the statute for curing the mischief."
A similar view was also expressed by the Supreme Court in AIR 1968 SC 697, Sevantilal v. I.T. Commr., where It was said, "It is a sound rule of Interpretation that a statute should be so construed as to prevent the mischief and to advance the remedy according to the true intention of the makers of the statute."
11. The history of the statute and the reason which led to the incorporation of the provisions in Section 22 and the mischief which it intended to suppress and the remedy it sought to provide clearly go to show that what was indeed contemplated was that strangers must be kept out and the integrity of the property may be maintained. With that end in view a preferential right in the remaining class I heirs was conferred. There is no doubt that this right is personal and possibly it does not run with the land. But a burden should have clearly been cast on the intending transferor heir to put the remaining class I co-heirs on notice of his intention to make the transfer and if there was no compliance with such notice the limitation or burden cast by the provision should have disappeared and the transferor should have been let free to give effect to his intention. Similarly a clear provision should have been made that if without giving notice of his intention to transfer an heir made the transfer of his interest, the transfer would be open to be impugned by the other class I coheirs even after the transfer had been completed. Apart from making the aforesaid two provisions, the procedure for giving effect to the right conferred under the section should also have been provided so that a complete machinery for the purpose would be found in the statute. To that extent certainly there seems to be some ambiguity.
12. But in the words "proposes to transfer" appearing in Sub-section (1) of the section, to my mind, there indeed appears to be a requirement that the transferor-heirs and it is only when they do not exercise their preferential right conferred under the section that he would be free to make the transfer to strangers not coming within the fold of the section. Once it is held that such a statutory duty is cast on the transferor heir, where it is shown that the transferee has purchased the property without notice having been given to the remaining class I co-heirs, the transfer could still be impugned after it was completed. Such an interpretation would not only be in keeping with the true legislative intention, but it would also not work inequitably. Thereby the preferential right would be kept up, the transferor would not have an undue impediment on his right to transfer and the transferee should after being satisfied that the class I co-heirs have in spite of notice failed to exercise their preferential right of acquisition purchase the property and obtain the same free from the liability under Section 22 of the Act
13. Expressed in other words, it would mean, when an heir proposed to transfer his or her interest in the property Inherited the legal consequences which would necessarily emerge would be these:
(a) In the remaining co-heirs a right of preference to acquire such interest proposed to be transferred in preference to any other person accrues. Such right may be availed of or may be given up.
(b) A corresponding legal obligation on the intending transferor would stand imposed not to transfer the interest in violation of the preferential right of the other Class I co-heirs.
(c) A statutory notice is given to all intending transferees that class I co-heirs have a preferential right and until that is exhausted either by its exercise or by its non-exercise in spite of notice they are not free to take the transfer.
14. Unless such an interpretation is given to the provisions of Section 22(1) of the Act, the preferential right contemplated therein would really be an airy one and the true legislative intention cannot be given effect to. I would, therefore interpret Sub-section (1) of Section 22 in the aforesaid manner and would hold that the transferor heir must propose or notify his intention to transfer to the other class I co-heirs and a transfer made without following that procedure would be vulnerable even after it is completed on proof by the co-heir who has the preferential right that the transfer was made without notice of the proposal of transfer to him.
15. Such an interpretation of the section may be sufficient for the purposes of meeting the present problem in this case. But I think it proper to also indicate that such an interpretation could not solve the entire problem that arises on account of an imperfect provision in the section of the Act. I would recall the criticism offered by the commentator in Mulla's Hindu Law. If the intention is to put an embargo on strangers getting into possession what would be the justification to prohibit a simple mortgage? It is, therefore, proper that clarification be made by amendment clearly circumscribing the limit of the exercise of the preferential right. It may cover cases of sale, gift, or other forms of transfer which involve transfer of possession.
16. It is equally necessary that specific provision should be made about the manner of exercise of the preferential right, namely, that the transferor heir must notify his intention to the other class I co-heirs and in case transfer is made without following that procedure the other heirs would be entitled to challenge the transfer. As a transfer, even after it is completed, may be open to challenge in certain events it is proper that full jurisdiction should be vested in the court to entertain the claim and dispose of the same as a normal litigation by applying the provisions of the Code of Civil Procedure. In such an event a tentative valuation has to be offered by the person who seeks assistance of the court and on that basis the forum would be determined and regular remedy by way of appeal would be available against the determination.
17. Adverting to the facts of the present case, I find two reasons have been mainly given by the learned Munsif for refusing the claim. The first one is that it is a personal right and, therefore, it cannot be exercised through the father guardian. That, I think, is absolutely an improper view. The party before the court is the class I co-heir. The disqualification of minority having attached to him he has sought to act through his guardian. In the circumstances, that objection of the learned Munsif must stand ruled out.
18. The second objection has been that the transfer has been concluded and title has already passed into the hands of the vendee. On the interpretation I have adopted of Section 22 of the Act the right could also be exercised against the vendee if opposite parties 1 and 2 had not notified their intention to make the alienation to the petitioner. That would be a question of fact There had been allegation by the opposite parties that it was the father, that is, the present guardian of the petitioner who had arranged the sale. If that fact is found to have been proved it is quite possible that the plaintiff may have to suffer in the particular case as having notice of the fact of alienation. To what extent knowledge of the father would take away the right of the petitioner would depend upon the facts of each case and, therefore, a finding on that score would be necessary. If it is found that the father had no knowledge or knowledge of the father does not preclude the petitioner son from exercising the right, the application would certainly be maintainable even after the completion of the transfer. These aspects have not been determined by the learned Munsif. I would, therefore, remit the matter to the learned Munsif for a fresh disposal. He would determine these questions and then dispose of the case afresh. This Civil Revision is allowed, the impugned order is vacated and the matter is remitted to the learned Munsif for a fresh disposal. Both the parties would bear their own costs upto this stage and further costs would abide the result.