Telangana High Court
Patil Bhuma Reddy vs Patil Somanna on 8 November, 2022
IN THE HIGH COURT OF JUDICATURE AT HYDERABAD
FOR THE STATE OF TELANGANA
*****
CIVIL REVISION PETITION No.3895 of 2018
Between:
Patil Bhuma Reddy
.. Petitioner
AND
Patil Somanna and others.
.. Respondents
Date of Judgment Pronounced: 08.11.2022
SUBMITTED FOR APPROVAL:
HONOURABLE SRI JUSTICE A.SANTHOSH REDDY
1. Whether Reporters of Local newspapers may
be allowed to see the Judgments?
YES/NO
2. Whether the copies of judgment may be marked
to Law Reports/Journals?
YES/NO
3. Whether Their Ladyship/Lordship wish to see the
fair copy of the Judgment?
YES/NO
_______________________
A.SANTHOSH REDDY, J
2
* HONOURABLE SRI JUSTICE A.SANTHOSH REDDY
+ CIVIL REVISION PETITION No.3895 of 2018
% 08.11.2022
# Patil Bhuma Reddy
..PETITIONER
VS.
$ Patil Somanna and others.
..RESPONDENT.
! Counsel For The Petitioner: Sri S.Surender Reddy
^ Counsel For Respondents: --
< Gist :
> Head Note :
? CITATIONS : -
1. 2000 SCC Online Mad 185
2. (2019) 14SCC 162
3
HON'BLE SRI JUSTICE A.SANTHOSH REDDY
CIVIL REVISION PETITION No.3895 of 2018
ORDER:
This Civil Revision Petition under Article 227 of Constitution of India is directed to set aside the order, dated 29.03.2018, passed in C.M.A.No.1 of 2016 by the Principal District Judge, Adilabad confirming the docket order, dated 20.01.2016, made in CFR.No.661 of 2015 on the file of Junior Civil Judge's Court, Adilabad.
2. Heard learned counsel for the petitioner. None appeared for the respondents. Perused the record.
3. The petitioner is the plaintiff ("plaintiff" for short), who filed suit, vide CFR.No.661 of 2015 against the respondents herein, who are the defendants ("defendants" for short).
4. The facts, which are necessarily be stated as prelude to the order, in brief, are as follows:
The petitioner/ plaintiff, filed suit for declaration against the respondents-defendants, in C.F.R.No.661 of 2015, on the file of Junior Civil Judge's Court, Adilabad, to declare that the plaintiff is 4 having preferential right to purchase the suit schedule property and other reliefs. The plaintiff and defendant Nos.1 to 3 are own brothers and their father by name P.Chinnu was owner to an extent of Ac.08-35 cents situated at Bhimsari Village. The father of the plaintiff, during his life time, has allotted Ac.03-00 guntas of land to the plaintiff and Ac.03-00 guntas of land to defendant No.3 and kept Ac.2-35 guntas of land for him and no land was allotted to defendant No.1, as he has gone to his in-law's house at Arli-T village as illatam son-in law. The father of the plaintiff died intestate. The three brothers i.e. the plaintiff, defendant No.1 and defendant No.3 have distributed the property as Ac.2-00 guntas to the plaintiff, Ac.3-00 guntas to defendant No.3 and Ac.3-35 guntas to defendant No.1. It is stated that less land was allotted to the plaintiff, as it was a temporary partition and it was not partitioned with metes and bounds and allotment was made in unequal shares. There was an understanding that allotment was made with unequal shares to continue joint status in their family. There was also oral agreement between the brothers not to transfer of share to any third person. Defendant No.1 5 transferred his share to defendant No.2. Aggrieved by the same, the plaintiff has got issued legal notice to defendant Nos.1 and 2 for cancellation of sale of unequal share by defendant No.1. The Junior Civil Judge, Adilabad by docket order, dated 20.01.2016, rejected the plaint, as there is no cause of action. The trial Court in the said order at penultimate para observed as under:
"On perusal of the contents of plaint found that already partition was made in between parties/brothers and they get their shares and they are enjoying the same since the date of partition as per their version" so there is no question of applicability of Sec.22 of Hindu Succession Act, preferential Right to acquire the property in certain cases"as already properties are partitioned in between them. In view of the same, there is no cause of action to entertain the suit/plaint, hence, the suit/C.F.R./plaint is rejected.
5. Aggrieved by the same, the plaintiff preferred CMA.No.1 of 2016. The said appeal was dismissed vide impugned order, dated 29.03.2018, confirming the docket order, dated 20.01.2016, made in C.F.R No.661 of 2015 by Junior Civil Judge, Adilabad. Challenging the said order, the present revision is filed.
6. The point that arises for consideration is; whether the averments of the plaint vide C.F.R.No.661 of 2015 would disclose any cause of action for the plaintiff to file suit for preferential right to purchase the co-sharers land?
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7. A perusal of the material on record would disclose that the plaintiff filed suit for declaration of preferential right to purchase the suit schedule property against his brothers. The averments of the plaint mainly disclose that during the life time of their father, Ac.03-00 guntas of land was allotted to the plaintiff and Ac.03-00 guntas of land was allotted to defendant No.2 and kept Ac.02-35 guntas of land for him. However, the plaintiff at para No.3 of the plaint, again stated that his father died intestate and three brothers, the plaintiff, defendant No.1 and defendant No.3 have distributed their landed property as Ac.2-00 guntas to the plaintiff, Ac.3-35 guntas to defendant No.1 and remaining Ac.3-00 guntas of land to defendant No.3. It is also stated that distribution was not with metes and bounds and unequal share was allotted to each to continue their joint status in the family. There was no complete allotment. There was also an oral agreement not to transfer of unequal shares to third persons and there is no partition deed to that effect. But, contrary to the said understanding, defendant No.1 without notice to co-brothers, has transferred his unequal share to third person, who is defendant No.2. The plaintiff got issued legal 7 notice to defendant No.1 and 2, but no reply has been given by them. Now it is important to see prayer in the plaint as pleaded by the plaintiff, which is as under:
" .......this Hon'ble Court may kindly be pleased to grant a decree of preferential right to the plaintiff and against the defendants.
1. Declaring that the plaintiff is having preferential right to purchase the suit schedule property.
2. Directing the plaintiff to deposit the purchase money within a particular period as determined by the Hon'ble Court.
3. Directing that on payment of such amount within the prescribed time the Second Defendant shall deliver possession of the suit schedule property to the plaintiff.
4. Declaring that the name of the plaintiff to be substituted for the name of the Second Defendant as Vendee in the Sale Deed.
5. That any other benefit as the Hon'ble Court may deemed fit shall be granted in the interest of justice."
8. I will touch upon the law applicable for deciding the issue of preferential right under Section 22 of the Hindu Succession Act, 1956 (for short "the Act"), which reads as under:
22. Preferential right to acquire property in certain cases-
(1) here, 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 8 business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.
(2) .......
(3) .......
9. In P.Srinivasamurthy v. P.Leelavathy1, Division Bench of Madras High Court at para 14 held as under:
" .......The object of sub-section (1) of Section 22 is that in cases where by virtue of intestate succession under the Act any interest in immovable property has devolved upon two or more heirs specified in Class I of the Schedule and any one of such heirs proposes to transfer his interest in the property, the other heirs should have a preferential right to acquire the interest which is so proposed to be transferred. It has to be construed that Section 22(1) confers an incidental right on the heirs other than the one who proposed to transfer his interest. It is no doubt true that sub-section (1) of Section 22 confers on such co-heirs a preferential right to acquire the interest which is proposed to be transferred by the other co-heir. When the transfer is in violation of the provisions of Section 22(1) of the Act, it goes without saying that the other co-sharer cannot certainly be without a remedy because every legal right must necessarily carry with it a remedy for enforcing the same. The remedy of the non-alienating co-heirs, in such circumstances, will be to seek the intervention of the court to enable them to acquire the right which has been transferred away by the other co-heir in violation of sub-section (1) of Section 22. As the Section does not provide for any special procedure for seeking the said remedy, a co-sharer has to seek enforcement of such right under Section 22(1) by way of a regular civil suit before the competent court........."
10. In Babu Ram v. Santokh Singh2, the Hon'ble Apex Court held as under:
1
2000 SCC OnLine Mad 185 2 (2019) 14 SCC 162 9
23. We now turn to the next stage of discussion. Even if it be accepted that the provisions of Section 22 would apply in respect of succession to agricultural lands, the question still remains whether the preferential right could be enjoyed by one or more of the heirs. Would that part also be within the competence of Parliament? The "right in or over land, land tenures..." are within the exclusive competence of the State Legislatures under List II Entry 18 of the Constitution. Pre-
emption laws enacted by the State Legislatures are examples where preferential rights have been conferred upon certain categories and classes of holders in cases of certain transfers of agricultural lands. Whether conferring a preferential right by Section 22 would be consistent with the basic idea and principles is the question.
24. We may consider the matter with the following three illustrations:
(a) Three persons, unrelated to each other, had jointly purchased an agricultural holding, whereafter one of them wished to dispose of his interest. The normal principle of pre-
emption may apply in the matter and any of the other joint holders could pre-empt the sale in accordance with rights conferred in that behalf by appropriate State legislation.
(b) If those three persons were real brothers or sisters and had jointly purchased an agricultural holding, investing their own funds, again like the above scenario, the right of pre-emption will have to be purely in accordance with the relevant provisions of the State legislation.
(c) But, if, the very same three persons in Illustration (b) had inherited an agricultural holding and one of them was desirous of disposing of his or her interest in the holding, the principles of Section 22 of the Act would step in.
The reason is clear. The source of title or interest of any of the heirs in the third illustration, is purely through the succession which is recognised in terms of the provisions of the Act. Since the right or interest itself is conferred by the provisions of the Act, the manner in which the said right can be exercised has also been specified in the very same legislation. Therefore, the content of preferential right cannot be disassociated in the present case from the principles of succession. They are both part of the same concept. 10
25. When Parliament thought of conferring the rights of succession in respect of various properties including agricultural holdings, it put a qualification on the right to transfer to an outsider and gave preferential rights to the other heirs with a designed object. Under the Shastric Law, the interest of a coparcener would devolve by principles of survivorship to which an exception was made by virtue of Section 6 of the Act. If the conditions stipulated in Section 6 were satisfied, the devolution of such interest of the deceased would not go by survivorship but in accordance with the provisions of the Act. Since the right itself in certain cases was created for the first time by the provisions of the Act, it was thought fit to put a qualification so that the properties belonging to the family would be held within the family, to the extent possible and no outsider would easily be planted in the family properties. In our view, it is with this objective that a preferential right was conferred upon the remaining heirs, in case any of the heirs was desirous of transferring his interest in the property that he received by way of succession under the Act.
26. We, therefore, conclude that the preferential right given to an heir of a Hindu under Section 22 of the Act is applicable even if the property in question is an agricultural land......"
11. In view of the above exposition of law, coming to the facts of the present case, the plaintiff categorically stated that there was no partition of the property with metes and bounds and unequal share was allotted to continue their joint status in the family. Such pleadings in the plaint would certainly accrue cause of action to claim preferential right. The plaintiff pleaded that they have succeeded interest in the immovable property and the same was devolved upon the plaintiff and other two brothers. As held by the 11 Hon'ble Apex Court in Babu Ram's case (2 supra), in such circumstances, a preferential right is conferred upon the remaining heirs, in case of any one of such heirs was desirous of transferring his interest in the agricultural property also, which he received by way of succession.
12. As held by the Division Bench of Madras High Court in P.Srinivasamurthy's case (1 supra) with regard to the object of Section 22 of the Act, when a person having such preferential right, his remedy in respect of transfer made in violation of the provisions of this Section can seek intervention of the Court by filing a regular civil suit. The pleadings of the plaint clearly establish the right of the plaintiff and the Section does not provide any special procedure for seeking such remedy. The plaintiff has got the remedy by way of filing a civil suit. Both the Courts below have committed error in taking into consideration of the documents and without looking into the pleadings, took a view that there is no recital with regard to preferential right in the alleged partition deed and the provisions of Section 22 of the Act are not applicable. 12
13. In view of what has been discussed above and law on the subject, I am of considered opinion that the plaintiff has clearly made out cause of action and has got right to enforce Section 22 of the Act and rightly approached the civil Court. It is for the plaintiff to establish about violation of his right and the question of preferential right as pleaded by him. Therefore, the orders impugned suffer from material irregularity and infirmity, warrants interference by invoking the jurisdiction of this Court under Article 227 of the Constitution of India and they are liable to be set aside.
14. In view of the same, the civil revision petition is allowed. The orders impugned are set aside. The trial Court is directed to number the suit vide C.F.R. No.661 of 2015, if it is otherwise in order. There shall be no order as to costs. Miscellaneous applications, if any, pending shall stand closed.
_______________________ A.SANTHOSH REDDY, J 08.11.2022 Note:
LR copy is marked.
B/o.
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