Punjab-Haryana High Court
Surender Kumar Jain vs Madhu Gupta And Another on 15 October, 2009
Author: Sabina
Bench: Sabina
R.S.A.No. 1785 of 2008 1
In the High Court of Punjab and Haryana at Chandigarh
R.S.A.No. 1785 of 2008
Date of decision: 15.10. 2009
Surender Kumar Jain
......Appellant
Versus
Madhu Gupta and another
.......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr. Ravinder Jain, Advocate,
for the appellant.
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SABINA, J.
Plaintiff Surender Kumar Jain filed a suit for declaration and permanent injunction, which was dismissed by the Civil Judge (Jr.Divn.), Chandigarh vide judgment and decree dated 9.8.2005. In appeal, the said judgment and decree were upheld by the Additional District Judge, Chandigarh vide judgment and decree dated 10.10.2007. Hence, the present appeal.
Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 4 of its judgment, are as under:- R.S.A.No. 1785 of 2008 2
"2. Shorn of all details, the facts in brief leading to the present suit are that the appellant-plaintiff sought a declaration that the sale deed dated 19.2.1996,regarding half share of H. No. 1293 Sector 22 B, Chandigarh, executed by the respondent-defendant no. 2 Jainender Kumar jain ,brother of the appellant-plaintiff, in favour of the respondent-defendant no. 1 is null and avoid and legible to be set aside as he had a preferential right to purchase the half share of his brother under the provision of Section 22 of Hindu Succession Act and that the respondent-defendant no.1 is a stranger to the family and as such she is not entitled to the purchase the join property and hence he prayed that the sale deed be declared a null and void and he be held entitled to purchase the same. Needless to ay ti was admitted case of the parties that the suit property was inherited by the appellant-plaintiff and respondent/defendant no. 2 from there father as per a will and as such both of them were the co-sharers in the suit property.
3. On notice, the suit was contested by both the respondent separately. The respondent-defendant no. 1 stated that the suit is not maintainable being time barred. It was alleged that the suit property had already been R.S.A.No. 1785 of 2008 3 partitioned between both the brothers and the respondent-defendant no. 2 has sold his share after the partition and as such the appellant-plaintiff has no right to challenge the alienation.
4. Similarly, the respondent/defendant no.2 in a separate written statement took the same stand and alleged that the suit property had already been partitioned between both the ;brothers and he sold his share with the consent and knowledge of the appellant-plaintiff who was never willing to purchase his half share and as such he has no right to challenge the same and suit is liable to be dismissed."
On the pleadings of the parties, following issues were framed by the trial Court:-
"1 Whether the sale deed dated 19-2-1996 regarding half share of H.No. 1293, Sector 22B Chandigarh executed by defendant no. 2 in favour of the defendant no. 1 is null and void and have no effect of the said house. If so whether the defendant is liable to be restrained by way of permanent injunction from enjoyment of plaintiff on any floor of the house in dispute? OPP
2. Whether the plaintiff has no cause of action? OPD
3. Whether the suit is time barred?OPD R.S.A.No. 1785 of 2008 4
4. Whether the suit is not properly valued for the purpose of court fees? OPD
5. Relief."
After hearing learned counsel for the appellant, I am of the opinion that the present appeal is devoid of any merit and deserves to be dismissed.
The plaintiff filed a suit challenging sale deed dated 19.2.1996 executed by defendant No.2 in favour of defendant No.1. The case of the plaintiff was that the plaintiff and defendant No.2 had inherited the house in dispute from their father in equal shares by way of registered Will. They were owners in possession of the house in dispute to the extent of half share each. In these circumstances, the plaintiff had preferential right to purchase the house in dispute.
As per Section 22 of the Hindu Succession Act, 1956, where, 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.
So far as limitation for filing a suit by the aggrieved legal heir, who wants to seek a preferential right, is concerned, the same would be governed by Article 97 of the Limitation Act, 1963. As per R.S.A.No. 1785 of 2008 5 the same, the limitation to challenge such sale would be one year. However, in the present case, the suit was filed beyond said period of limitation. Both the Courts below, in these circumstances, rightly held that the suit filed by the plaintiff was time barred.
No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed.
(SABINA)
JUDGE
October 15, 2009
anita