Madras High Court
Ponnumani Nadar vs N.Natarajan on 1 November, 2011
Author: Aruna Jagadeesan
Bench: Aruna Jagadeesan
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 01/11/2011 CORAM THE HONOURABLE MRS.JUSTICE ARUNA JAGADEESAN SA(MD)No.30 of 2008 Ponnumani Nadar ... Appellant Vs 1.N.Natarajan 2.Gandhimathi 3.Muthulakshmi ... Respondents Prayer This Second Appeal is filed against the Judgement and Decree dated 12.08.2005 passed in AS.No.177/2004 by the learned Principal Sub Judge, Nagercoil, confirming the Judgement and Decree passed in respect of "b" relief and reversing the Judgement and Decree passed in respect of "a" relief in the suit in OS.No.417/2000 dated 23.03.2000 by the learned Principal District Munsif, Nagercoil. !For Appellant ... Mr.A.Sankara Subramanian ^For Respondents... Mr.D.Rajagopal :JUDGEMENT
This Second Appeal is filed by the 1st Defendant against the Judgement and Decree dated 12.08.2005 passed in AS.No.177/2004 by the learned Principal Sub Judge, Nagercoil, confirming the Judgement and Decree passed in respect of "b" relief and reversing the Judgement and Decree passed in respect of "a" relief in the suit in OS.No.417/2000 dated 23.03.2000 by the learned Principal District Munsif, Nagercoil.
2. The case of the Plaintiff/1st Respondent herein, as set out in the plaint, is as follows:-
a. The plaint A, B, C schedule properties originally belonged to one Thangaiah Nadar. He and his brother inherited the same from his father Alagumuthu Nadar. Thangaiah Nadar had three sons, namely, Narayanaperumal, who is the father of the Plaintiff, the 1st Defendant and Ramaiah Nadar. The said Ramaiah Nadar had two wives by name Chellammal and Thangalakshmi and through his first wife Chellammal, he had one daughter by name Thangapaul and through his second wife Thangalakshmi, the 2nd Defendant was born. Ramaiah Nadar predeceased his father Thangaiah Nadar. They partitioned the properties by way of partition deed dated 08.02.1966, whereby all the properties were divided into A, B, C and D and the A-schedule property was allotted to the father of the Plaintiff, B-schedule property to the 1st Defendant, C-schedule property to the 2nd Defendant and D-schedule property to Thangapaul.
b. After the life time of Narayanaperumal, the Plaintiff is in possession of all the properties allotted to his father as A-schedule in the partition deed dated 8.2.1966. In the said partition deed, a special provision is made to the effect that the partition should mutually provide pathway among themselves for the convenient enjoyment of their respective properties. Thus, in all the properties, 5 feet is reserved for the purpose of egress and ingress for every sharer and all the parties have been using the pathway from the date of partition till date and it is an easement by grant, which cannot be disturbed at any point of time.
c. The plaint schedule property comprised in Old S.No.6858 of Needakarai 'A' Village was thus divided into A, B, C schedule properties and each allottee was allotted 8.333 cents and the Plaintiff's father was allotted eastern most 8.333 cents and it is described as A-schedule property. The 1st Defendant was allotted next immediate western share having an extent of 8.333 cents as B-schedule and the same is described as B-Schedule. The western portion viz. C- schedule property having an extent of 8.334 cents was allotted to the 3rd Defendant . The Kamaraj Polytechnic Road runs north to south and it abuts C-schedule property. From the said road , the Plaintiff's father and after his death, the Plaintiff was having access to A- schedule property through 'B' and 'C' schedule of properties only and there is no other way. The parties are Hindus governed by the Hindu Succession Act, 1956. By virtue of Section 22 of the Act, if any co-sharer intends to alienate his or her share, the other sharer has got a preferential right to acquire the share proposed to be alienated. The Defendants 2 and 3 are negotiating for the sale of 'B' and 'C' schedule properties and the Plaintiff asked them to sell the same to him, for which they refused. If the said properties were sold to others, the Plaintiff would be deprived of valuable right of preemption. The Plaintiff is ready and willing to pay the reasonable price for the said properties. In such circumstances, the suit has been filed to grant a decree, granting mandatory injunction directing the Defendants to enforce the preemption right of the Plaintiff over plaint 'B' and 'C' schedule properties and to demarcate the 5 feet path over plaint 'B' and 'C' schedule properties for egress and ingress to A-schedule properties from the Kamaraj Polytechnic Road.
3. The case of the Defendants, as set out in the Written Statement, is as follows:-
The averment that the Plaintiff is in possession of all the properties allotted to his father Narayana Perumal as A-Schedule in the partition deed dated 8.2.1966 is to be proved by the Plaintiff. The Defendants are not aware of the said fact. It is not correct to state that the parties should mutually provide pathway among themselves for the convenient enjoyment of their respective properties and that 5 feet is reserved for the purpose of pathway. The 1st Defendant sold his plot to the 3rd Defendant before filing of the suit. The Plaintiff never approached the Defendants 1 and 2 for the purchase of the properties. The Plaintiff is not entitled to get mandatory injunction as against the Defendants and there is no cause of action. The suit as framed is not maintainable in law and liable to be dismissed.
4. The 3rd Defendant was impleaded, as it was claimed that the 1st Defendant had sold the property to her. On the pleadings of both the parties, necessary issues were framed by the Trial Court. Before the Trial Court, on the side of the plaintiff, Exs.A1 to A5 were marked and PW.1 was examined. On the side of the defendants, Ex.B1 to B4 were marked and DW.1 was examined.
5. The Trial Court, after considering both the oral and documentary evidence, decreed the suit in so far as the second relief is concerned, but declined to grant the relief of enforcement of preferential right under Section 22 of the Hindu Succession Act. The Appellant/1st Defendant, 2nd Respondent/ 2nd Defendant and the 3rd Defendant filed an appeal in AS.No.177/2004 against the said decree in so far as the 'B' relief is concerned and the Plaintiff/1st Respondent filed the cross objection as against the dismissal of 'A' relief. The lower Appellate Court confirmed the Judgement and Decree in respect of 'B' relief and reversed the decree in so far as the 'A' relief is concerned. Thus, the first appellate court decreed the suit as regards both relief i.e. (A) and (B). Aggrieved by the same, this second appeal has been filed by the 1st Defendant.
6. This second appeal was admitted on the following substantial question of law:_ "Whether the lower Appellate Court has committed an error in allowing the cross objection filed by the Respondent herein and granted mandatory injunction in favour of the Respondents/ Plaintiffs to purchase the 'B' and 'C' Schedule of property under preemption right since Section 22(1) of the Hindu Succession Act cannot be exercised after partition between the co-heirs?"
7. Admittedly, one Thangaiah Nadar was the original owner of the suit properties and he had three sons, namely, Narayana Perumal (Plaintiff's father), Ponnumani Nadar, the 1st Defendant and Ramaiah Nadar, who predeceased Thangaiah Nadar. The said Ramaiah Nadar had two wives, by name Chellammal and Thangalakshmi. The 2nd Defendant is the daughter through the 2nd wife and Thangapaul is born to the 1st wife of Ramaiah Nadar. They partitioned the property by way of partition deed dated 08.02.1966 in Ex.A1, whereby the properties were divided into A, B, C schedule of properties and A-schedule property was allotted to the Plaintiff's father, B-schedule to the 1st Defendant, C-schedule to the 2nd Defendant and D-schedule to Thangapaul. They are in possession and enjoyment of their respective shares allotted to them. In Ex.A1 partition deed, a provision is made to the effect that the parties should mutually provide pathway among themselves for the convenient enjoyment of their respective properties. The Plaintiff claimed 5 feet pathway over the plaint 'B' and 'C' schedule properties for egress and ingress and the courts below granted the said relief on considering the report filed by the Advocate Commissioner and in the light of the provisions made in the partition deed.
8. Though the Appellant/the 1st Defendant challenged the grant of relief of 'B' also in this appeal, but in the course of arguments, he submitted that he is not pressing the appeal in so far as the relief of 'B' is concerned. It is brought to the notice of this court that in EP.No.291/2006, five feet pathway has been demarcated in the southern portion of 'B' and 'C' schedule properties as mentioned in the report of the Commissioner Ex.C4 as per the decree of the courts below.
9. Mr.A.Sankarasubramanian, the learned counsel for the Appellant submitted that the lower Appellate Court committed an error in granting the right of preemption to purchase the property allotted to the share of the 1st Defendant. He would submit that there was completed partition among the co-heirs and the properties were allotted to the sharers and in that view of the matter, there was not only severance of joint status, but also a completed partition by specific allotment to different co-heirs and therefore, preferential right to acquire property cannot be claimed by the Plaintiff. The learned counsel for the Appellant would further contend that the preferential right could be claimed only as against Class-I heirs and the 1st Defendant being the paternal uncle of the Plaintiff, he cannot invoke the provisions of Section 22 of the Hindu Succession Act (herein after referred to as the Act).
10. Per contra, Mr.D.Rajagopal, the learned counsel for the 1st Respondent contended that the right conferred under Section 22 of the Act can be exercised, when an interest in immovable property of intestate devolves on two or more heirs classified in Class-I heirs and further when any one of such heirs proposes to transfer his/her interest in the property, the other heir shall have preference over the interest so proposed to be transferred. The learned counsel would urge that sub section (1) of Section 22 of the Act confers a substantive right on an heir, who along with another heir or heirs has acquired any interest in immovable property by virtue of any intestate succession to have a preferential right to acquire the interest proposed to be transferred to strangers.
11. I have given anxious consideration to the submissions made by the learned counsel on either side and perused the relevant provisions of the Hindu Succession Act.
12. On a perusal of Section 22 of the Act, it is obvious that it is brought into the Act as an antidote to mitigate inconvenience resulting from transfer to an outsider by a co-heir or his or her interest in property inherited along with other co-heirs. The law requires that in case any heir desires to transfer his or her interest in the property inherited under the provisions of the Act, the right of preemption should be given to other heirs. There can however be no doubt that a right is conferred on Class-I co-heirs to exercise a claim of preference and this intention must be given effect to.
13. In the present case, admittedly there had been a partition among the co-heirs even when the original owner namely Thangaiah Nadar was alive and the respective parties are in possession and enjoyment of their shares with authority to hold independently and absolutely as their separate properties and it could not be the intention of the legislature to put a log on the power of alienation of independent owners of property.
14. From a bare perusal of Section 22 of the Act, it is manifest that the preferential right under the Section can be availed of, if the interest in the property is joint and a co-heir transfers his or her individual interest in the joint property. The preferential right would evaporate as soon as the concerned property is partitioned and allotted among the co-heirs.
15. In the plaint, the Plaintiff has admitted that there was a partition among the co-heirs and the different properties were allotted to the heirs as stated in the plaint. When the respective properties have been allotted to each sharer and when the same is enjoyed by the respective sharers, it becomes the separate property of the respective parties in the eye of law, also for the purpose of Section 22 of the Act. So, in that view of the matter, it cannot be said that after specific allotment of property to the Plaintiff and other co-heirs, their preferential right under Section 22 (1) of the Act would still survive.
16. The materials on record and the fact that in the revenue records separate possession of the property has been noted would clearly indicate that the deed of partition was in fact acted upon resulting in severance of joint status by specific allotment to different co-heirs.
17. That apart, the provision of Section 22 declares that when the interest in the immovable property devolved by intestate succession upon two or more heirs specified in Class-I of the Schedule, then it is between the Class-I heirs inter se they have the right of pre-emption. In the present case, even at the life time of Thangaiah Nadar, the properties have been partitioned and shares have been allotted to the Plaintiff's father, the 1st Defendant, the sons of Thangaiah Nadar, the 2nd Defendant and one Thangapaul, who are the children of predeceased son. The 1st Defendant is the paternal uncle of the Plaintiff and in between them, the question of right of preemption would not arise as they are not Class-I heirs. Therefore, the provisions of Section 22 of the Hindu Succession Act do not apply. In that view, the claim of right of preemption is untenable.
18. In view of the same, the findings of the Trial Court is sound and proper and therefore, I uphold the view taken by the learned Principal District Munsif, Nagercoil. The Judgement and Decree of the first appellate court in that regard is liable to be set aside. Accordingly, the substantial question of law is answered.
19. In the result, this second appeal is allowed in part and the Judgement and Decree of the first appellate court in granting the right of preemption to purchase 'B' and 'C' Schedule properties is set aside and the rest of the Judgement and Decree is confirmed. However, in the circumstances of the case, there will be no order as to costs.
Srcm To:
1.The Principal Sub Judge, Nagercoil
2.lPrincipal District Munsif, Nagercoil
3.The Record Keeper, VR Section, Madurai Bench of Madras, Madurai