Karnataka High Court
Mallappa vs Basavani on 12 July, 2024
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NC: 2024:KHC-K:4864
RSA No. 200193 of 2020
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 12TH DAY OF JULY, 2024
BEFORE
THE HON'BLE Mrs. JUSTICE K.S. HEMALEKHA
REGULAR SECOND APPEAL NO.200193/2020(DEC)
BETWEEN:
MALLAPPA
S/O HANAMANT AGASAR,
AGE: 52 YEARS, OCCUPATION: AGRICULTURE,
R/O. TIGANI BIDARI,
TQ/DIST. VIJAYAPUR-586113.
...APPELLANT
(BY SRI INAMDAR MEHBOOB PASHA, ADVOCATE)
AND:
BASAVANI
D/O GURAPPA BADIGER,
W/O SHEKHAR MANDALI,
Digitally signed AGE: 50 YEARS, OCC: AGRICULTURE,
by SUMITRA
SHERIGAR R/O. HOUSE NO.1599, RAM NAGAR,
Location: HIGH 3RD CROSS, KANGRALI K.H.
COURT OF
KARNATAKA BELAGAVI-590001.
...RESPONDENT
(BY SRI D.P. AMBEKAR, ADVOCATE)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
PRAYING TO (i) SET ASIDE THE JUDGMENT AND DECREE
DATED 08.07.2020 ON THE FILE OF PRINCIPAL SENIOR CIVIL
JUDGE AND CJM VIJAYAPUR BY ALLOWING THIS R.S.A. (ii) SET
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NC: 2024:KHC-K:4864
RSA No. 200193 of 2020
ASIDE THE ORDER I.A. NO.III DATED: 04.08.2018 PASSED IN
O.S. NO. 704/2017 ON THE FILE OF PRINCIPAL CIVIL JUDGE,
VIJAYAPUR. (iii) ALLOW THE APPEAL FILED BY THE APPELLANT.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The plaintiff is before this Court in the regular second appeal assailing the order dated 04.08.2018 passed on I.A. No.III in O.S. No.704/2017 on the file of the Principal Civil Judge, Vijayapura (Hereinafter referred to as 'trial Court' for short), wherein, the trial Court allowed I.A. No.III filed by the defendant under Order VII Rule 11 of Code of Civil procedure (Hereinafter referred to 'CPC' for short) and rejected the plaint and confirmed in RA No.43/2018 by the Court of the Principal Civil Judge and CJM (Hereinafter referred to 'first Appellate Court' for short) preferred by the plaintiff.
2. Parties herein are referred to as per their ranking before the trial Court for the sake of convenience. -3-
NC: 2024:KHC-K:4864 RSA No. 200193 of 2020
3. Suit is seeking to declare that the plaintiff is having preferential right to purchase the land in Survey No.178/1B and further direction to the defendant to execute the registered sale deed in favour of the plaintiff by receiving the consideration amount and canceling the earlier agreement of sale executed in the name of the 3rd party.
4. On notice, the defendant appeared and filed his written statement interalia denying the plaint averments and stating that the suit is not maintainable under Section 22 of the Hindu Succession Act, 1956 (Hereinafter referred to as 'the Act' for short), as the filing of the suit is only after execution of a sale deed by co-sharer and class-I heir.
5. The defendant filed IA No.III seeking for rejection of the plaint on the ground that the suit of the plaintiff is not maintainable.
6. The defendant contended that the father of the plaintiff Hanmanth and his brothers Dundappa and Shantappa purchased property in Sy.No.178 under registered sale deed dated 23.07.1980. After the purchase, the three brothers got -4- NC: 2024:KHC-K:4864 RSA No. 200193 of 2020 divided the property in Sy.No.178 and Western portion of property in Sy.No.178/1A measuring 4 acres 20 guntas fell to the share of Shantappa, the middle portion bearing Sy.No.178/1B measuring 3 acres 30 guntas fell to the share of Dundappa and Eastern portion bearing Sy.No.178/1C measuring 4 acre 14 guntas fell to the share of Shantappa. The middle portion bearing Sy.No.178/1B measuring 3 acres 30 guntas (Hereinafter referred to as 'suit land') fallen to the share of Dundappa was sold in favour of the defendant on 12.05.1995 for a sum of Rs.34,000/- and this defendant is not the member of the plaintiffs' family and he is totally stranger and plaintiff cannot seek preferential right as against the stranger.
7. The plaintiff filed objections contending that suit land is the ancestral property of the plaintiff, the co-sharer defendant has executed a registered agreement of sale in favour of third person and he being Class-I heir of his father has preferential right to purchase the suit property. The trial Court by the impugned order rejected the plaint by allowing the application filed by the defendant.
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NC: 2024:KHC-K:4864 RSA No. 200193 of 2020
8. Aggrieved the plaintiff preferred appeal before the first Appellate Court. The first Appellate Court while re- considering and re-appreciating the entire oral and documentary evidence concurred with the order of the trial Court.
9. Aggrieved the plaintiff is before this Court in the regular second appeal.
10. Heard Sri Inamdar Mehboob, learned counsel, for the appellant, Sri D.P. Ambekar, learned counsel, for the respondent and perused the records.
11. Learned counsel for the appellant submits that the Courts below have failed to consider that the suit land is the ancestral property purchased by the plaintiff's father and his brothers, that suit land is not divided till today and there is no separate sheet prepared neither phodi has been conducted. It is submitted that in the light of the same the plaintiff has got a preferential right to purchase the property.
12. Per contra, learned counsel for the respondent justified the impugned order of the Courts below contending -6- NC: 2024:KHC-K:4864 RSA No. 200193 of 2020 that the Section 22 of the Act does not provide the plaintiff to seek for preferential right when a stranger is already inducted in the property. Learned counsel submits that there is no error committed by the Courts below warranting any interference under Section 100 of CPC.
13. Having heard the learned counsel for the parties, the question that falls for consideration before this Court is, 'preferential right as provided under Section 22 of the Act whether right to seek pre-emption is available to the plaintiff in the present facts and circumstances of the case?'.
14. Section 22 of the Hindu Succession Act, 1956, ('the Act' for short) 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 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 -7- NC: 2024:KHC-K:4864 RSA No. 200193 of 2020 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. 10 (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."
15. Section 22 grants a preferential right to heirs specified in class-I of the schedule when an interest in immovable property or a business of an interstate develops upon them. If one heir intends to transfer his interest, other heirs in the same class have right to acquire the proposed interest.
16. The conditions precedent for the applicability of Section 22 is that the property should have devolved upon the -8- NC: 2024:KHC-K:4864 RSA No. 200193 of 2020 heirs through interstate succession. In the instant case partition has already been effected between Hanmanth, Dundappa and Shantappa, which was jointly purchased by the brothers. Secondly, one heir intends to transfer their interest and thirdly other heirs in the same class have right to acquire the proposed interest.
17. The suit land is not developed intestate succession, Dundappa brother of plaintiff's father has already sold the property to defendant way back in the year 1995. The plaintiff is not the heir in the same line to acquire the proposed interest neither the defendant who is the purchaser from Dundappa can be held as co-sharer to come within the provisions of Section 22 of the Act. Thus, the plaintiff failed to prove that he has got a preferential right to purchase the suit land.
18. The trial Court also held that the suit is not maintainable as the defendant has entered only into an agreement with the third party and there is no sale deed executed. This reasoning of the trial Court is unacceptable, as usual aspect of preferential rights under Section 22 is that it can be invoked before the actual sale transaction takes place. -9-
NC: 2024:KHC-K:4864 RSA No. 200193 of 2020 This means that where co-sharer plans to transfer their share, other sharers can seek to purchase their share. It is brought to the notice of this Court that the sale deed has been executed on 28.08.2022 by the defendant in favour of one third person. However, the trial Court on the right available to plaintiff has rightly held that plaintiff is not entitled for preferential right.
19. The manner in which the Trial Court and the first appellate Court have analysed the entire oral and documentary evidence this Court is of the considered opinion that the same does not warrant any interference in the present regular second appeal and no substantial question of law arises for consideration. For the foregoing reasons no ground is made out by the plaintiff warranting any interference by this Court.
20. Accordingly, this Court pass the following:
ORDER
(i) The Regular Second Appeal is hereby dismissed.
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NC: 2024:KHC-K:4864 RSA No. 200193 of 2020
(ii) The judgment and decree of the first Appellate Court and the order of the Trial Court stand confirmed.
Sd/-
JUDGE SBS,SWK List No.: 1 Sl No.: 32 CT: VD