Karnataka High Court
Ganeshappa Since Dead By His Lrs. And ... vs Krishnamma And Ors. on 30 June, 2004
Equivalent citations: AIR2005KANT160, ILR2005KAR358, 2005(2)KARLJ262, AIR 2005 KARNATAKA 160, 2005 AIR - KANT. H. C. R. 277, 2005 A I H C 968, (2005) 27 ALLINDCAS 876 (KAR), (2005) ILR (KANT) 358, (2005) 1 KCCR 124, (2005) 1 HINDULR 455, (2005) 3 ICC 316, (2005) 2 CIVLJ 689, (2005) 2 KANT LJ 262
Author: K. Sreedhar Rao
Bench: K. Sreedhar Rao
JUDGMENT K. Sreedhar Rao, J.
1. The appellants are the L.Rs of the deceased plaintiff, filed a suit for declaration that the sale deeds executed by the first defendant in favour of the defendants No. 2 to 4 is void and in contravention Section 22 of the Hindu Succession Act, 1956. Further pray for determination of the value of the suit properties and thereafter to direct the defendants to execute the sale deed in respect of the suit property by receiving the sale value determined by the Court.
2. One Venkataramanappa is the propositus, died several years prior to 1962. One Ganeshappa and the plaintiff and one Chinnappa (husband of the first defendant) are the only heirs of Venkataramanappa. The husband of the first defendant Chinnappa died in the year 1966. The first defendant filed a suit in O.S.No. 317/1966 against the plaintiff herein seeking partition of the share of her husband. The suit was decreed. The first defendant sold the properties allotted to her share to the defendants No. 2 to 4.
3. The plaintiff herein made an application under Section 22 of the Hindu Succession Act claiming right of preemption to purchase the properties allotted to the share of the first defendant. The Trial Court in the final decree proceedings declared that the plaintiff has right of preemption under Section 22 of the Act. In C.R.P. No. 4957/92 this Court set aside the order of the Trial Court and directed that the right of preemption of the plaintiff if any is subject to the result of the present suit in question It is clear from the order of this Court in C.R.P. No. 4957/92 that the issue of right of preemption claimed by the plaintiff is kept open for adjudication in the present suit.
4. The provisions of Section 22 of the Hindu Succession Act are extracted hereunder for convenient reference.
"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 anyone 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 into 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 specific 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."
5. The provisions of the Section declare 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 right of preemption. In the present case, the succession for the first time opened after the death of propositus Venkataramanappa. His sons as Class-I heirs succeeded to the property. The first defendant did not succeed to the property as Class-I heir of Venkataramanappa along with the plaintiff and his brothers. The first defendant succeeded to the property only after the death of her husband, who is the brother of the plaintiff. The plaintiff could have invoked right of preemption, if Chinnappa his brother had sold the property. But in the instant case, it is the widow of Chinnappa, who inheriting the property after the death of her husband sells the property. Therefore, in between the plaintiff and first defendant the question of right of preemption would not arise and provisions of Section 22 of the Hindu Succession Act do not apply. In that view, the claims of right of preemption is untenable. The finding of the Trial Court is sound and proper. Accordingly, the appeal dismissed.