Patna High Court
Gopal Prasad vs Baushidhar Singh And Ors. on 3 November, 1999
Equivalent citations: AIR2000PAT240, AIR 2000 PATNA 240, (2000) 1 PAT LJR 233
Author: M.Y. Eqbal
Bench: M.Y. Eqbal
ORDER M.Y. Eqbal, J.
1. This civil revision application is directed against the order dated 27-3-99 passed by Sub-Judge III, Daltonganj in Partition Suit No. 13/93, whereby he has rejected the application filed by the plaintiff-petitioner under Section 22 of the Hindu Succession Act.
2. The plaintiff-petitioner instituted the aforementioned suit for partition of the joint property impleading defendants Nos. I to 13 but subsequently the defendant No. 14, namely, the sister of the plaintiff was also made party in the suit. The defendant Nos. 12 and 13 were made defendants, who were transferee from one of the co-sharers. It appears that during the pendency of the suit the pro forma opposite parties desired to dispose of their interest in the property and finally executed two sale deeds in favour of defendant No. 12, who figures as principal opposite party No. 1. The plaintiff, therefore, made an application under Section 22 of the Hindu Succession Act, 1946 (hereinafter referred to as 'the said Act') to exercise his preferential right to acquire the property. The said application was opposed by the defendant No. 12 by filing a rejoinder. The Court below, after hearing the parties, rejected the application in terms of the order dated 27-3-99 holding that in exercise of right of pre-emption under the provisions of the said Act the petitioner may bring a regular suit as such question cannot be decided in the instant suit. Hence this revision application.
3. Mr. K. K. Sahay, learned counsel appearing on behalf of the petitioner, assailed the impugned order as being illegal and wholly without jurisdiction. Learned counsel submitted that the Court below failed to exercise Jurisdiction so vested in it by law. According to the learned counsel, the question with regard to preferential right of a party to a property has to be decided in that suit in the event any such application under Section 22 of the said Act is filed. Learned counsel, in this connection, relied upon the decision in the case of Bhola Nath Rastogi v. Santosh Prakash Arya, AIR 1975 Patna 336 and Ganesh Chandra Pradhan v. Rukmani Mohanti, AIR 1971 Orissa 65.
4. On the other hand, Mr. Debi Prasad, learned Sr. Counsel, appearing on behalf of the opposite parties, submitted that during pendency of the suit some of the defendants sold their shares to the contesting opposite party No. 1. The plaintiff-petitioner filed an application in the Court below for an order restraining the defendants from selling their shares. The Court below, in terms of the order dated 22-6-94, directed the defendants not to transfer their shares in the land without permission of the Court. However, the said order was subsequently recalled by the Court below in terms of the order dated 7-10-94. The petitioner challenged the said order by filing C. R. No. 506/94(R) before this Court which was ultimately dismissed as withdrawn. Learned counsel further submitted that in any view of the matter even if the plaintiff has any preferential right he can enforce it by filing a regular suit and that question cannot be decided in a partition suit. In this connection, learned counsel relied upon the decision in the case of Valliyil Sreedevi Amma v. Subhadra Devi. AIR 1976 Kerala 19 and Kamal Goel v. Purshotam Dass. AIR 1999 Punj and Har 254.
5. Before appreciating the rival contentions of the learned counsel, it would be useful to look into the provisions of Section 22 of the Hindu Succession Act (hereinafter referred to as the 'said Act') 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 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."
6. From bare perusal of the aforesaid provision, it is manifest that this section confers a preferential right to the heirs mentioned in Class I of the Schedule of the said Act to acquire an interest in the immovable property or the business carried on either solely or in conjunction with other heirs of the intestate. When it devolves on two or more heirs and if any of the heirs proposes to transfer his share in the said property. This right is commonly known as right of pre-emption amongst the heirs of the intestate mentioned in the Schedule to whom immovable property or business devolves, when anyone of them proposes to transfer his interest.
7. Sub-section (2) of Section 22 of the said Act provides that the consideration for which any interest in the property of the deceased may be agreed upon between those two heirs. However, in absence of any such agreement an application may be made by any of them to the Court for determination of consideration. The explanation appended to the said provision further clarified as to which Court the application has to be made. According to the explanation of this section, application has to be made in a Court within the limit of whose jurisdiction the immovable property is situated or the business is carried on. Such application may also be filed in a Court which the State Government may by notification in the Official Gazette specify in this behalf.
8. The only question falls for consideration in the instant case is as to whether such application will be registered as Miscellaneous Judicial Case by a Court where application is filed or such right conferred by this section can be enforced only by filing a regular suit by the person willing to enforce such right as held by the Court below.
9. The term 'suit' has not been defined under the Code of Civil Procedure. It ordinarily means civil proceeding initiated by presentation of plaint. Section 26 of the Code of Civil Procedure provides that every suit shall be instituted by presentation of a plaint or in such other manner as may be prescribed. Before a suit can be instituted the plaint must be presented to a Court having jurisdiction. Order 6, Rule 1, CPC provides that every suit shall be instituted by presenting a plaint to the Court or such officers as it appoint in this behalf. It further provides that the plaint shall comply with the rules contained in Orders 6 and 7. C.P.C. so far as they are applicable. There is, therefore, much difference between a plaint and an application as used in Section 22 of the said Act. Unless otherwise prescribed, an application presented in a Court will not be registered as suit.
10. Part IV, Chapter I of the Civil Court Rules of the High Court of Judicature at Patna laid down the rules relating to maintenance of register, periodical returns, statements and annual report etc. Under the heading (B) Classification of cases has been provided. Rules 454 to 459 reads as under:--
"454. (a) For the purposes of the periodical statements, suits and appeals from decrees are divided Into three classes-
(I) Suits for Money and Movable and Appeals in the same;
(II) Suits and Appeals under the Rent Law; and (III) Title and other Suits and Appeals in the same.
(b) The details of this classification, which must be strictly adhered to throughout the returns, will be found in Annual Statement No. 2 (Form No. (S) 10).
(c) As all plaints are to be registered on presentation in the General Register of Suits (Rule 23, Chapter I, Part I) orders rejecting plaints must be treated for the purposes of the rules in this Chapter as suits, and shown in Annual Statements Nos. 2, 3 and 4, Part I.
455. Suits for money, etc., are again subdivided according as they are dealt with under the Small Cause Court procedure or under the ordinary procedure. Where an officer has the powers of a Small Cause Court Judge, the work done by him in the exercise of these powers should be shown bracketed with that done under his ordinary powers.
456. Where an officer has been appointed by the State Government under Section 100-A of the Bihar Tenancy Act (VIII of 1885) to be Special Judge for the purpose of hearing appeals from the decisions of Revenue Officers under Chapter X of that Act, the work done by him in the exercise of those special powers should be shown in Quarterly Statement A (Appeal Part, Form No. (S) 4) and in Annual Statement 5, Parti, bracketed with that done under his ordinary powers.
457. Cases under Act XX of 1863, Section 14 of Act X of 1940 and under Sections 88 and 92, Order XXXVI. Rule 3. of the Code of Civil Procedure, are to be registered as suits, and must be entered as such in the returns.
458. An application for Probate or for Letters of Administration should, for the purposes of the returns be treated as a Miscellaneous (Judicial) case until the date upon which it is contested and as a suit from that date. In order to explain the discrepancies which will result in the total number of Miscellaneous (Judicial) cases for disposal, disposed of, and pending it should be stated on the face of each return of Miscellaneous (Judicial) cases how many applications for probate and for Letters of Administration were transferred, during the period to which the returns relate, to the head of suits, and treated as suits from the dates upon which, the applications were contested.
459. Separate statements being provided to show applications for the execution of decrees, these will not be included under the head "Miscellaneous (Judicial)" cases, and it is intended that such other cases only as require a judicial enquiry or order should be included. The following list shows the cases which are to be entered under this head, and without the special orders of the High Court, no addition may be made thereto :--
(a) Cases under the Code of Civil Procedure.
(i) and (ii) .....
(b) Cases under other Acts, (xvi) ..... (xlix) Applications under Section 22 of the Hindu Succession Act, 1956 (Act 30 of 1956)."
11. From bare perusal of the aforementioned rules, it is clear that all plaints are to be registered as suits in the general register of the suit. Rule 457 further provides that cases filed under specific provision of CPC shall also be register as suits. Rule 458 further clarifies that applications for probate or letter of administration shall not be registered as suit rather shall be registered as Miscellaneous (Judicial) case unless such application is contested by the other side, then it shall be converted and registered as suit. Rule 459 very specifically provides such applications which shall be registered as Miscellaneous (Judicial) Cases which includes application filed under Section 22 of the said Act.
12. Having regard to the relevant provisions of the Code of Civil Procedure and the Civil Court Rules, as discussed hereinabove, I am of the definite opinion that a person seeks to enforce his preferential right as envisaged under Section 22 of the said Act may make an application in a Court having jurisdiction and such application shall be registered and as Miscellaneous (Judicial) Case. The Court below, is therefore, not correct in law in holding that the person has to file a regular civil suit by presenting a plaint in the manner prescribed under the Code of Civil Procedure.
13. Mr. Debi Prasad, learned Sr. Counsel, put heavy reliance on the ratio decided by the Kcrala High Court in the case of Valliyil Sreedevi Amma, (AIR 1976 Kerala 19) (supra) and the case of Kamal Goel, (AIR 1999 Punj and Har 254) decided by the Punjab and Haryana High Court (supra) and submitted that the only remedy available to a party for enforcement of preferential right conferred under Section 22 of the said Act is by way of filing a civil suit. I do not find much force in the submission of the learned counsel. In both the decisions Kerala High Court and Punjab and Haryana High Court proceeded on the basis that when Section 22 of the said Act does not provide any special procedure for seeking the remedy, the ordinary process for enforcement of any civil right has to be resorted to by the co-heirs who wish to enforce their right under the said provision. In other words, their Lordships have held that remedy is by way of filing a civil suit in a competent Court. In those cases their Lordships have neither considered the Civil Court rules framed by the respective High Courts nor is there any mention in the said decisions that there is no such rule provided for registration of such application as Miscellaneous (Judicial) Case.
14. As noticed above, Patna High Court has framed specific rules in this respect whereby application under Section 22 of the said Act has to be registered as Miscellaneous (Judicial) Case and not a suit. According to Rule 459 of the Civil Court Rules framed by the Patna High Court, to enforce preferential right under Section 22 of the said Act, an application has to be filed which shall be registered as Miscellaneous (Judicial) Case.
15. In the case of Bhola Nath Rastogi, (AIR 1975 Patna 336) (supra) a Division Bench of this Court was considering whether right of pre-emption as envisaged under Section 22 of the said Act is available where property devolved by survivorship. In that case a partition suit was contested by all the parties and at the appellate stage the appellants made alternative argument that they have got the right of pre-emption under Section 22 of the said Act. Dealing with that question, his lordship L. M. Sharma, J. (as he then was) speaking for the Bench, held :-- (Para 9) "There appears to be another difficulty in the way of the appellants in raising this question. Sub-section (2) of Section 22 of the Hindu Succession Act indicates that a party can enforce a right of pre-emption by making an application to that effect in a Court which has been explained in the Explanation to this section. If a party intending to take the benefit of the right given under Section 22(1) files an application, the Court has to determine the amount of consideration for the intended transfer and the party is again given an option to get such a transfer from the co-sharer on such consideration or to refuse the same. If the party declines to purchase the property for the same amount, he has to bear the cost of the proceeding. No such application has ever been filed by any of the parties anywhere. This plea was not even raised in the Court below. It was for the first time in this appeal that the appellants have raised this point. Even in this Court no application has been filed for enforcement of such a right. In these circumstances, the plea has to be rejected.
16. In the above premises, I am, therefore, of the definite opinion that the Court below has erred in law in rejecting the application in limine holding that such right can be enforced only by filing a regular suit and not by filing an application.
17. In the result, this civil revision application is allowed and the impugned order passed by the Court below is set aside. The Court below is directed to register the application filed by the petitioner under Section 22 of the said Act as Miscellaneous (Judicial) Case and dispose of the same in accordance with law. However, it is made clear that since the Court below has rejected the application on preliminary point. I have not entered into the merit of the case.