A.F.R vs Biswambar Das And on 9 October, 2024

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Orissa High Court

A.F.R vs Biswambar Das And on 9 October, 2024

Sashikanta Mishra,J. Both the appeals have been filed by the Plaintiffs and Defendant Nos.3 to 5 against the common judgment passed on 7.3.2024 followed by decree by learned District Judge, Balasore in R.F.A. No.90/2018 and R.F.A. No.7/2021. By such common judgment, the judgment dated 07.3.2024 followed by decree passed by learned Civil Judge (Sr. Division), Jaleswar in C.S. No.533/208 of 2010/2009 was partly confirmed.

2. For convenience, the parties are referred to as per their respective status in the trial Court.

3. The Plaintiffs filed the suit exercising their right of pre-emption to repurchase the disputed property and for permanent injunction. The property described in 'kha' schedule of the plaint relates to the relief claimed for right of pre-emption and the property described under 'ga' schedule relates to the relief of R.S.A. Nos.167 & 180 of 2024 Page 2 of 24 permanent injunction. The Plaintiffs' case is that they and Defendant Nos.2 to 5 are related through their common ancestor Nrusingha Nath Das, who died leaving behind his two sons, Sambhunath and Gadadhar. The branch of Gadadhar became extinct in the absence of any heirs. The Plaintiffs and Defendant Nos.2 to 5 represent the branch of Sambhunath. 'Ga' schedule land is claimed to be the ancestral undivided property comprising of a joint house and homestead of the parties. There is a residential house of the plaintiffs and a temple of the family deity, Goddes Durga on one of the plots. The Plaintiffs are occupying the said house and also worshipping the deity since the time of their ancestors. The father of the Plaintiff No.1 was also possessing the 'ga' schedule as the only surviving member of the family. After his death, the property devolved upon his legal heirs. Further, after marriage of his daughter, Plaintiff No.1 and his deceased brother, Laxminarayan occupied the house. The property also stands recorded jointly in the M.S. R.O.R. After death of Laxminarayan, his widow Benilata Das R.S.A. Nos.167 & 180 of 2024 Page 3 of 24 (Plaintiff No.2) is possessing his share. Defendant Nos.2,3 and 4 executed an agreement in favour of Plaintiff No.1 for their undivided interest out of 'ga' schedule property on receipt of Rs.23,000/- and relinquished their share over such property. On 18.1.2009, Defendant No.1 came to the spot and attempted to cut the fence and trees from the land and tried to take forcible possession. On protest by the plaintiffs, he gave out that he had purchased a portion of 'ga' schedule land from Defendant No.2. On further inquiry, the plaintiffs came to know that on 20.2.2009, Defendant No.2 had executed a registered sale deed for 'kha' schedule and some other lands in favour of Defendant No.1 on 21.11.2009 vide R.S.D. No.2420. It is, however, alleged that said sale deed has never been acted upon in the absence of payment of consideration money and delivery of possession to the purchaser. It is also claimed that the Defendant No.2 could not have sold any property out of 'ga' schedule land to Defendant No.1 by executing an agreement in favour of Plaintiff No.1. Defendant No.1 being an imposter and R.S.A. Nos.167 & 180 of 2024 Page 4 of 24 stranger to the family of the Plaintiff and 'kha' schedule land being part of 'ga' schedule land, which is ancestral joint family property, has no right to possess any portion of the said land in view of the provisions under Section 44 of the Transfer of Property Act. It is further claimed that as per Section 22 of the Hindu Succession Act, the Plaintiffs have preferential right to purchase the share of Defendant No.2 in the event she proposed to transfer her share and interest out of joint family property. But prior to execution of the alleged sale Defendant No.2 never offered to sell the property to the Plaintiffs ignoring their preferential right. It is further stated that the Plaintiffs are ready to purchase the property at genuine market price. On such facts, the suit was filed to exercise the right of pre-emption with claim to repurchase the share of land sold by Defendant No.2 to Defendant No.1 out of the 'ga' schedule land and also to permanently injunct Defendant No.1 from entering into the property etc. R.S.A. Nos.167 & 180 of 2024 Page 5 of 24

4. Defendant no.1 contested the suit by filing a written statement. It was claimed that 'ga' schedule land is not the undivided property of the Plaintiffs and Defendant Nos.2 to 5 as claimed. The agreement between them for relinquishment of share was also denied. It was specifically averred that one month before execution of the sale deed in question the vendor (Defendant No.2) came to her with her caretaker-Gajendra Mohanty and proposed to sell the suit land which was in her exclusive possession as she was in need of money for treatment by stating that she had got share in the property left by her father by way of amicable settlement between her, the Plaintiffs and Defendant No.2 to 4 by way of Gharoi Bantan Patra in the year 1996. As such she was not required to take any permission of the co-sharers before selling the property. Further, the plaintiff no.1 had himself sold the properties to other persons admitting the family partition. On being offered, the Plaintiffs and other Defendant No.3 to 5 refused to purchase the land for which he sold it to Defendant No.1 and since then, he R.S.A. Nos.167 & 180 of 2024 Page 6 of 24 has been possessing the suit land by making it fit for construction of house.

5. Defendant No.2 filed a written statement taking the stand that one month before executing the sale deed in favour of Defendant No.1, she had approached the Plaintiff No.1 with her caretaker and proposed to sell the suit land. Further, the suit land was allotted to her through an amicable settlement between the Plaintiff and Defendant Nos.2 to 4 in the year 1996. As such she has every right to sell the property. Since the Plaintiffs and Defendant Nos.3 to 5 refused to purchase the same, she sold it to Defendant No.1.

6. Defendant Nos.3,4 and 5 also filed a separate written statement, admitting more or less, the plaint averments. It is their case that the property in question being joint family undivided home, homestead and temple property has never been partitioned by metes and bounds. As such, Defendant No.2 has no saleable interest of any specific portion of the property. Further, she never intimated her intention to the Plaintiffs or R.S.A. Nos.167 & 180 of 2024 Page 7 of 24 Defendant Nos.3 to 5 before sale of the property. Therefore, they and the plaintiffs have preferential right under Section 22 of the Hindu Succession Act to repurchase the share of Defendant No.2.

7. Basing on such rival pleadings, the trial Court framed the following issues for determination;

(1) Is the suit of the plaintiffs maintainable ?

(2) Is there any cause of action available to the plaintiffs to file this suit?

(3) Are the plaintiffs entitled to repurchase the 'kha' schedule land sold by defendant no.2 to defendant no.1 vide R.S.D. No.2420 dt.21.11.2008 by exercising their right of pre-emption?

(4) Can the defendants be permanently injuncted from entering upon the suit 'ga' schedule land, from making any interference in the peaceful possession of the same by the plaintiffs and from doing any act of destruction in respect of the said property?

(5) What are the other reliefs available to the plaintiffs?

R.S.A. Nos.167 & 180 of 2024 Page 8 of 24

8. Taking up the Issue No.3 for consideration at the outset, the trial Court, after analyzing the oral and documentary evidence and the settled position of law was not inclined to hold that the sale deed executed by Defendant No.2 in favour of Defendant No.1 is void and illegal. Further, analyzing the evidence adduced by Defendant No.1, particularly that of D.W.2, the trial Court held that the Plaintiffs and Defendant Nos.3 to 5 had sufficient notice of the intention of Defendant No.2 to sell the property but did not offer to purchase the same by taking recourse to the provision of Section 22 of the Hindu Succession Act. As such, the trial Court refused to grant the relief of repurchase.

On Issue No.4, the trial court, after analyzing the evidence on record held that Defendant No.1 being a stranger purchaser to the family of the Plaintiffs and having purchased undivided share out of the schedule 'kha' land, which is part of Schedule 'ga' land, and the property being in the nature of, home, homestead and place of worship of family deity, is not entitled to R.S.A. Nos.167 & 180 of 2024 Page 9 of 24 have joint possession of the land along with the plaintiff and other members of his family until he carves out the specific area of his purchased land either in a suit for partition or through a registered instrument or through mutual settlement and therefore, if at all he has come into possession, he has to be ejected from the suit land.

9. With the above findings rendered on the principal issues, the trial Court decreed the suit in part by refusing to grant relief of re-purchase to the Plaintiffs but injuncted Defendant No.1 from having joint possession of 'ga' schedule land with the plaintiffs and their co-sharers till he carves out his purchased land in a suit for partition or by agreement.

10. Being aggrieved, the Plaintiffs preferred R.F.A. No.7/2017 against refusal of the trial Court to grant the relief of repurchase. Defendant No.1 filed R.F.A. No.90/2018 challenging the decree in restraining him from having joint possession over the 'kha' schedule land. The 1st appellate court heard both the appeals R.S.A. Nos.167 & 180 of 2024 Page 10 of 24 together and disposed of the same by a common judgment. After analyzing the law relating to preferential right of co-charers to acquire the property as per Section 22 of the Hindu Succession Act, the 1st Appellate Court held that the said right is available to a class-1 heir until partition is effected among all the heirs. The 1st Appellate Court further held that the Hindu family is presumed to be joint unless the contrary is proved and that he who sets up the plea of previous partition has to substantiate the same by adducing cogent evidence. Referring to the plea taken by the Defendant Nos.1 and 2 regarding prior partition and the so-called admission of prior partition made in different sale deeds, the 1st Appellate Court held that there is absence of specific evidence as to the extent of the property put to partition, who got how much share and how such partition was effected. Thus, the plea of prior partition was disbelieved and it was held that the property was undivided joint family property of the Plaintiffs and Defendant Nos.2 to 5. It was further held that once the plea of previous partition failed, the right R.S.A. Nos.167 & 180 of 2024 Page 11 of 24 of the parties for pre-emption as per Section 22 of the Hindu Succession Act cannot be taken away. In this regard, analyzing the evidence on record that Defendant No.1 could not prove that Defendant No.2 had brought to the notice of the Plaintiffs and Defendant Nos.3 to 5 her intention to transfer the property in question, the findings of the Trial Court on this score was held to be unsustainable. It was also held that Defendant No.1 being a stranger to the family of Niranjan cannot have the right to joint possession of the purchased land along with plaintiffs and defendant Nos.2 to 5 without effecting partition. It was thus held that the trial Court had rightly injuncted Defendant No.1 from possessing the property. The appeal (RFA No.90/2018) filed by Defendant No.1 was thus dismissed. The appeal (RFA No.7/2017) filed by the plaintiffs was allowed by setting aside the decree passed by the trial Court in refusing the relief of pre- emption by decreeing the suit of the Plaintiffs to exercise their right of pre-emption and by directing Defendant No.1 to execute a sale deed conveying 'kha' R.S.A. Nos.167 & 180 of 2024 Page 12 of 24 schedule property on receipt of consideration money within two months.

11. Being further aggrieved, the Defendants have filed both the Second Appeals that have been admitted on the following substantial questions of law;

(i) Are the Courts below correct in their approach in decreeing the suit of the plaintiffs by ignoring the earlier partition of the joint family property and the separate individual alienations made basins upon the same by the different members of the joint family vide Exhibits-D T, U, V and W?

(ii) Are the Courts below justified in granting the relief of permanent injunction at the behest of some members of the family against the other members of such family in not recognizing the alienations of property through registered instrument of sale?

(iii) Are the Courts below right in their approach with the finding that a transferee remaining in possession of the purchased land being a member of the family of the transferor can be permanently injuncted to come upon his purchased land in operation of Section 38 of the Specific Relief Act?

12. Heard Mr. S.K.Pattnaik, learned counsel for the Defendant No.1-Appellant, Mr. A.P. Bose, learned counsel appearing for Plaintiff No.1-Respondent and Mr. D.P. Mohanty, learned counsel appearing for Defendant-Respondent Nos.3 to 5.

R.S.A. Nos.167 & 180 of 2024 Page 13 of 24

13. Mr. Pattnaik assails the impugned judgment and decree by submitting that the 1st Appellate Court committed manifest error in referring to the provision under Section 22 of the Hindu Succession Act thereby completely ignoring that the same relates to a situation antecedent to transfer and not post transfer. Since the suit to exercise preferential right was filed after execution of the sale deed, Section 22 has no application. Furthermore, the 1st Appellate Court erroneously ignored the clear-cut admission of the Plaintiffs regarding previous partition as reflected in the recitals of several sale deeds marked Ext.A, C, E, D, F, G, H etc.. Mr. Pattnaik further argues that Ext.D is a sale deed executed by the Plaintiff no.1 in respect of a portion of the suit land in favour of one Sitansu Mohanty admitting therein the fact of previous partition. He concludes his argument by contending that Defendant No.1 has been perpetually injuncted even though there was no breach of obligation by him vis-à-vis the Plaintiffs as envisaged under Section 38 of the Specific Relief Act.

R.S.A. Nos.167 & 180 of 2024 Page 14 of 24

14. Per contra, Mr. Bose would argue that the concurrent findings of fact arrived at by both the Courts below regarding absence of prior partition cannot be a substantial question of law for adjudication in the present appeals. Mr. Bose further argues that the 1st Appellate Court has rightly drawn adverse inference as Defendant No.2 neither stepped into the witness box to depose as a witness nor was summoned by her vendee (Defendant No.1). On the contrary, D.W.2 admitted that the property was undivided and joint family property. He further argues that Section 22 applies to any immovable property. In the absence of any cogent proof of prior partition, the presumption of jointness cannot be ignored, more so as the R.O.R. shows the property to be jointly recorded. Under the circumstances, the 1st Appellate Court rightly held that the Plaintiffs have preferential right of purchase over the suit property.

15. Mr. D.P.Mohanty, learned counsel appearing for Defendant Nos.3 to 5 supports the arguments made by R.S.A. Nos.167 & 180 of 2024 Page 15 of 24 Mr.Bose as above and further argued that as per the settled position of law, the right of pre-emption can be exercised also after transfer has been effected.

16. It would be apposite to first refer to Section 22 of the Hindu Succession Act, which is quoted hereunder;

"(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 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.

(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." R.S.A. Nos.167 & 180 of 2024 Page 16 of 24

In explaining the purport and object of the above provision, in Mulla Principles of Hindu Law, Twentieth Edition (page 463) the following has been observed:

"This Section (Section 22) appears to have been thought necessary as an antidote to the inconvenient effects sometimes resulting from transfer to an outsider by a co-heir of his or her interest in property simultaneously inherited along with other co-heirs. The right declared by the Section is an analogous to the right of pre- emption which tends to raise clogs and fetters on the full sale and purchase of property and is in general regarded as opposed to enquiry and good conscience. xxx xxx xxx xxx xxx. The preferential right to acquire property under the section is confined only to cases of devolution of property upon two or more heirs specified in Class-1 of the Schedule."

17. There is no dispute that Plaintiff No.1 and Defendant Nos.2 to 5 are members of the joint family. The 1st Appellate Court, after analyzing the oral and documentary evidence on record has held, and according to this Court rightly so, that there is no cogent proof of partition of the disputed property among the co-sharers prior to execution of the sale deed dated 21.11.2008 executed by Defendant No.2 in favour of Defendant No.1. Further, the 1st Appellate Court has held that Defendant No.1 is a stranger to the R.S.A. Nos.167 & 180 of 2024 Page 17 of 24 family. Apart from the fact that these are pure questions of fact arrived at by the Courts below basing on evidence on record, nothing was demonstrated as to how these factual findings are incorrect or erroneous. This Court therefore, finds no reason to differ from the findings of fact rendered by the 1st Appellate Court as regards the plea of prior partition. The so-called admission made by the Plaintiff in some sale deeds in the absence of specific proof as regards material particulars such as, extent of property put to partition, allotment of individual shares to the co- sharers etc. is of no consequence as has been rightly held by the 1st Appellate Court. Therefore, the factual position that emerges is, the property in question is ancestral joint family property of the Plaintiffs and Defendant Nos.2 to 5. Secondly, the property continues to be jointly held. Thirdly, the plea of partition raised by the Defendant Nos.1 and 2 is found to be without any basis. In such a situation, the question that arises is, what would be the effect of Section 22 of the Hindu Succession Act. R.S.A. Nos.167 & 180 of 2024 Page 18 of 24

18. As already stated, according to Mr. Pattnaik learned counsel for Defendant No.1, the provision under Section 22 is applicable only to a proposed sale and not to a sale already effected. Mr. Pattnaik draws attention of the Court to the specific language employed in the provision 'proposes to transfer'. Since in the instant case, the transfer had already been effected much before filing of the suit by the Plaintiffs, the provision would have no application.

19. Both Mr. Bose and Mr. Mohanty have countered the arguments by referring to a judgment rendered by this Court in the case of Bijay Krushna Dwivedy v. Laxmi Dei1; Reading of the judgment cited reveals that reference was made therein to an earlier judgment of this Court rendered in the case of Ganesh Chandra Pradhan vs. Rukmani Mohanty and others; 2AIR 1971 Ori 65. In the case of Ganesh Chandra Pradhan (supra), a learned single Judge of this Court, referring to the provision under Section 22 and several 1 2009 (1) C.L.R. 916 2 AIR 1971 Ori 65 R.S.A. Nos.167 & 180 of 2024 Page 19 of 24 judgments and commentaries on Hindu law and interpretation of statutes held as follows;

"22. The history of the statute and the reason which led to the incorporation of the provisions in Section 22 and the mischief which it intended to suppress and the remedy it sought to provide clearly go to show that what was indeed contemplated was that strangers must be kept out and the integrity of the property may be maintained. With that end in view a preferential right in the remaining class I heirs was conferred. There is no doubt that this right is personal and possibly it does not run with the land. But a burden should have clearly been cast on the intending transferor heir to put the remaining class I co-heirs on notice of his intention to make the transfer and if there was no compliance with such notice the limitation or burden cast by the provision should have disappeared and the transferor should have been let free to give effect to his intention. Similarly a clear provision should have been made that if without giving notice of his intention to transfer an heir made the transfer of his interest, the transfer would be open to be impugned by the other class I coheirs even after the transfer had been completed. Apart from making the aforesaid two provisions, the procedure for giving effect to the right conferred under the section should also have been provided so that a R.S.A. Nos.167 & 180 of 2024 Page 20 of 24 complete machinery for the purpose would be found in the statute. To that extent certainly there seems to be some ambiguity.

23. But in the words "proposes to transfer"

appearing in sub-section (1) of the section, to my mind, there indeed appears to be a requirement that the transferor-heirs and it is only when they do not exercise their preferential right conferred under the section that he would be free to make the transfer to strangers not coming within the fold of the section. Once it is held that such a statutory duty is cast on the transferor heir, where it is shown that the transferee has purchased the property without notice having been given to the remaining class I co-heirs, the transfer could still be impugned after it was completed. Such an interpretation would not only be in keeping with the true legislative intention, but it would also not work inequitably. Thereby the preferential right would be kept up, the transferor would not have an undue impediment on his right to transfer and the transferee should after being satisfied that the class I co-heirs have in spite of notice failed to exercise their preferential right of acquisition purchase the property and obtain the same free from the liability under Section 22 of the Act.

24. Expressed in other words, it would mean, when an heir proposed to transfer his or her interest in the property inherited the legal R.S.A. Nos.167 & 180 of 2024 Page 21 of 24 consequences which would necessarily emerge would be these:

(a) In the remaining co-heirs a right of preference to acquire such interest proposed to be transferred in preference to any other person accrues. Such right may be availed of or may be given up.

(b) A corresponding legal obligation on the intending transferor would stand imposed not to transfer the interest in violation of the preferential right of the other Class I co-heirs.

(c) A statutory notice is given to all intending transferees that class I co-heirs have a preferential right and until that is exhausted either by its exercise or by its non-exercise in spite of notice they are not free to take the transfer.

25. Unless such an interpretation is given to the provisions of Section 22(1) of the Act, the preferential right contemplated therein would really be an airy one and the true legislative intention cannot be given effect to. I would, therefore interpret sub-section (1) of Section 22 in the aforesaid manner and would hold that the transferor heir must propose or notify his intention to transfer to the other class I co-heirs and a transfer made without following that procedure would be vulnerable even after it is completed on proof by the co- heir who has the preferential right that the transfer was made without notice of the proposal of transfer to him.

R.S.A. Nos.167 & 180 of 2024 Page 22 of 24

26. Such an interpretation of the section may be sufficient for the purposes of meeting the present problem in this case. But I think it proper to also indicate that such an interpretation could not solve the entire problem that arises on account of an imperfect provision in the section of the Act. I would recall the criticism offered by the commentator in Mulla's Hindu Law. If the intention is to put an embargo on strangers getting into possession what would be the justification to prohibit a simple mortgage? It is, therefore, proper that clarification be made by amendment clearly circumscribing the limit of the exercise of the preferential right. It may cover cases of sale, gift, or other forms of transfer which involve transfer of possession.

20. Thus, it is clear that the intention of the legislature is clear and unequivocal i.e. to prevent a stranger to a family from purchasing a joint family property without obtaining prior permission of the co- heirs. To such extent therefore, it would be immaterial whether the sale has been already affected or not. In other words, only because the property in question has been already sold cannot take away the valuable right of pre-emption of the other co-sharers as any other R.S.A. Nos.167 & 180 of 2024 Page 23 of 24 interpretation would serve to nullify the provision itself. Reading of the impugned judgment reveals that the 1st Appellate Court has correctly appreciated the position of law and applied the same to the facts of the case to hold that the right of the Plaintiffs of pre- emption cannot be denied.

21. For the foregoing reasons therefore, this Court finds no merit in the contentions advanced by the appellant so as to be persuaded to interfere with the impugned judgment. The substantial questions of law framed at the time of admission are therefore, answered against the Defendant No.1-Appelalnt.

22. In the result, the appeals fail and are therefore, dismissed. There shall be no order as to cost.

.................................. Sashikanta Mishra, Judge Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Reason: Authentication Location: High Court ofAshok Kumar Behera Orissa, Cuttack Date: 09-Oct-2024 11:11:34 R.S.A. Nos.167 & 180 of 2024 Page 24 of 24

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