Punjab-Haryana High Court
Prem Chand And Others vs Smt.Sheela And Others on 22 September, 2011
Author: Ram Chand Gupta
Bench: Ram Chand Gupta
RSA No.2834 of 2011(O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
RSA No.2834 of 2011(O&M)
Date of Decision: September 22, 2011
Prem Chand and others
.....Appellants
v.
Smt.Sheela and others
.....Respondents
CORAM: HON'BLE MR.JUSTICE RAM CHAND GUPTA
Present: Mr.C.B.Goel, Advocate
for the appellants.
.....
RAM CHAND GUPTA, J.(Oral)
The present regular second appeal has been filed against judgment and decree dated 29.3.2011 passed by learned Additional District Judge, Palwal, dismissing appeal filed by present appellants-plaintiffs against judgment and decree dated 18.9.2010 passed by learned Additional Civil Judge (Senior Division), Palwal, dismissing suit filed by present appellants-plaintiffs.
I have heard learned counsel for the appellants and have gone through the whole record carefully including both the judgments passed by learned Courts below.
Briefly stated, appellants-plaintiffs filed a suit for declaration to the effect that they got a preferential right to acquire half share in the property in dispute which has been devolved upon respondent no.1- Smt.Sheela, after death of her husband Dhal Singh by way of inheritance, on payment of market sale price with consequential relief of permanent injunction restraining respondent no.1-defendant from transferring half RSA No.2834 of 2011(O&M) -2- share in the property in dispute to anyone else except the plaintiffs and if during pendency of the suit, respondent no.1-defendant succeeds in transferring and alienating the half share in the property in dispute then a decree for possession on payment of such consideration be passed in favour of plaintiffs and against the defendants.
Suit filed by appellants-plaintiffs was dismissed by learned trial Court. Appeal filed against the said judgment and decree was also dismissed by learned first appellate Court.
It has been contended by learned counsel for the appellants- plaintiffs that one of the appellants-plaintiffs, namely, Jagdish Chand is brother of deceased Dhal Singh and hence, he is having preferential right to acquire the share in the property in dispute, which has been inherited by respondent no.1-defendant being widow of Dhal Singh, by virtue of Section 22 of the Hindu Succession Act, 1956, which 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 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 RSA No.2834 of 2011(O&M) -3- 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."
A bare perusal of aforementioned provision shows that if property is inherited by more than one legal heir as specified in Class I of the Schedule and if any one of such heirs proposes to transfer his or her interest in the property, the other legal heirs would be having preferential right to acquire the interest proposed to be transferred.
However, in this case respondent no.1-defendant being widow of Dhal Singh is the only class I legal heir of Dhal Singh, whereas Jagdish Chand, being brother of Dhal Singh is not a class I heir and hence he has not inherited the property left by Dhal Singh and rather widow alone has inherited the property and she is having absolute right in the said property and she is competent to deal with the same, in any manner, she likes.
Hence, in view of these facts, it cannot be said that any illegality has been committed by the Courts below in passing the impugned judgments and decrees. Finding recorded by learned courts below is fully justified by the evidence on record and is supported by cogent reasons. The said finding is not shown to be perverse or illegal nor it is based on misreading or misappreciation of the evidence. Hence, the said finding does not warrant interference in this second appeal. No question of law, much RSA No.2834 of 2011(O&M) -4- less substantial question of law, arises for determination in this second appeal. Accordingly the appeal is dismissed in limine.
22.9.2011 (Ram Chand Gupta) meenu Judge