Delhi High Court
Smt. Kusum Kumria And Ors. vs Shri S.P. Kumria And Anr. on 20 February, 2006
Author: Badar Durrez Ahmed
Bench: Badar Durrez Ahmed
JUDGMENT Badar Durrez Ahmed, J.
1. By an order dated 21.4.2003 this Court had directed that the following issue be decided as a preliminary issue:-
Whether the plaintiffs have locus standi to file the instant suit' OPP' The issue has arisen because the plaintiffs are seeking to enforce their alleged preemptive right to purchase the undivided share of defendant No. 1 on the basis of the provisions of Section 22 of the Hindu Succession Act, 1956. The said Section reads as under:-
22. Preferential right to acquire property in certain cases. - (1) Where after the commencement of this Act, 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, devolve 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 3which 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.'
2. Upon a reading of Section 22 of the Hindu Succession Act, 1956 (hereinafter referred to as 'the said Act'), it becomes clear that a preferential right to acquire property has been granted to heirs of the intestate specified in Class I. The word 'intestate' has been defined in the said Act in Section 3(g). A person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect. In the present case, the 'intestate' is one late Mr R.R., Kumria. He died on 22.5.1962 leaving behind five Class I heirs: Smt. Savitri Kumria (widow), Shri S.P. Kumria (son), Shri Sudershan Kumria (son), Smt Urmila Kalia (daughter) and Smt Nirmala Sirba (daughter). Smt. Savitri Kumria also died on 25.5.1972. The daughters i.e., Smt. Urmila Kalia and Nirmala Sirba have relinquished their entire shares in favor of their brothers Shri S.P. Kumria and Shri Sudershan Kumria. Thus, the position on the death of Smt. Savitri Kumria on 25.5.1972, was that there were only two surviving Class I heirs of Shri R.R. Kumria and they were the only owners of their equal undivided shares in the entire property left by late Shri R.R. Kumria. The said Shri Sudershan Kumria also died on 24th January, 1994 leaving behind his widow Smt. Kusum Kalia, Son (Mohit Kumria) and daughter (Ms Ratna Kumria), who are arrayed as plaintiffs 1, 2 and 3 respectively. The suit was initially filed by these plaintiffs when the defendant No. 1 (Shri S.P. Kumria) was alive. The suit was filed because, according to the plaintiffs, the defendant No. 1 (S.P. Kumria) had sold his undivided share to the defendant No. 2 by virtue of a registered Sale Deed dated 17.10.2001. Immediately thereafter, the suit was instituted on 8.11.2001 and shortly thereafter, i.e. on 17.11.2001, Shri S.P. Kumria, who was a bachelor, passed away. He left behind as his legal heirs the present plaintiffs and the two sisters, Smt Urmila Kalia and Smt Nirmala Sirba, who have been brought on record by virtue of the order dated 11.7.2005.
3. An objection was raised by the defendant No. 2 that the present suit is not maintainable because the plaintiffs have no locus standi for maintaining such a suit. The learned counsel for the plaintiffs, however, submitted that the plaintiffs clearly had locus standi. She submitted that when late Shri R.R. Kumria died, Shri Sudershan Kumria was admittedly a Class I heir. The plaintiffs are the Class I heirs of Shri Sudershan Kumria. The learned counsel for the plaintiffs submitted that the son of a pre-deceased son is recognised as Class I heir as per the Schedule to the said Act. She submitted that the position of the plaintiff No. 2 as on the date when the cause of action arose, would be the same as that of a son of a pre-deceased son of late Shri R.R. Kumria inasmuch as the plaintiff No 2's father Sudershan Kumria has also passed away on 24.1.1998.
4. On the other hand, the learned counsel for the defendants states and submits that a plain reading of Section 22 along with the Schedule to the said Act would show that the right of preemption has been given only to the Class I heirs of the intestate as defined under the Act. In the present case, Shri R.R. Kumria is the instate and the plaintiffs are not the Class I heirs of Mr R.R. Kumria. He submitted that had Shri Sudershan Kumria been alive, he could have claimed the benefit of Section 22 of the Act because he was clearly a Class I heir of late Shri R.R. Kumria, the intestate. He further submitted that since Shri Sudershan Kumria is no longer alive the benefit of Section 22 cannot be extended to his heirs and it has to be limited only to Class I heirs of the instate in question i.e. late Shri R.R. Kumria.
5. The learned counsel for the plaintiffs submitted that the position is not so simple because no partition took place between Shri S.P. Kumria and Shri Sudershan Kumria for all these years. Had a partition taken place, then of course, the plaintiffs would have no case but because the partition had not taken place, the preferential right given to Shri Sudershan Kumria would also ensure to the benefit of his Class I heirs. She further submitted that had the situation been the reverse, i.e., had the plaintiffs sold their undivided shares to defendant No. 2 and had the defendant No. 1 been alive, he could have maintained an action for preemptive right to purchase under Section 22 of the said Act. Therefore, according to her, when the converse could be done then the plaintiff would also be entitled to maintain such an action.
6. The learned counsel for the plaintiff has placed reliance on the decision of a Division Bench of the Orissa High Court in Karunakar Rout v. Golak Behari Biswal AIR 1995 Orissa 110. In that case a question arose whether the plaintiff was entitled to the right of preferential purchase of the share and property inherited by defendant No.3 because of Section 22 of the Hindu Succession Act. It was held that Section 22 deals with the preferential right to acquire the property in certain cases and that because of the Section, if an interest in any immovable property of an intestate, or in any business carried on by him or her devolves upon two or more heirs specified in Class I of the schedule, if 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. In the case before the Orissa High Court the plaintiff had already relinquished his shares and all his rights in respect of a portion of the property in favor of the defendant No.3. The Court held that the plaintiff having relinquished his rights in respect of the said property could not found a claim based upon Section 22 and seek preferential right of purchase. The Orissa High Court held clearly that the plaintiff, having relinquished its rights to the property, had also lost his preferential rights in respect of the said property in view of Section 22 of the said Act. In respect of certain other lands which were not the subject matter of relinquishment, it was held that since the same were joint family properties governed by the Banaras School of Mitakshra, the transfer of such property by an undivided coparcener would be void ab initio. It is on this portion of the decision that the learned counsel for the plaintiff places specific reliance. She states that the property in question has not been partitioned and, therefore, the plaintiffs would have a preferential right being the heirs of Shri Sudershan Kumria, a Class I heir of the intestate, Shri R.R. Kumria. The learned counsel for the plaintiffs also submitted that the plaintiffs are the Class I heirs of late Shri R.R. Kumria. Insofar as this submission is concerned, I am unable to agree with the counsel for the plaintiff. The plaintiffs may be Class I heirs of Shri Sudershan Kumria but they are definitely not Class I of Shri R.R. Kumria. The Class I heirs of Shri R.R. Kumria were only the two sons, Shri Sudershan Kumria and Shri S.P. Kumria (the original defendant No.1) and their two sisters Urmila Kalia and Nirmala Sirba and his widow (Smt. Savitri Kumria). But the two sisters had relinquished all their rights in favor of the two brothers, namely, Shri S.P. Kumria and Shri Sudershan Kumria. And, Smt Savitri Kumria had passed away. By no stretch of imagination can the plaintiffs be considered to be the Class I heirs of Shri R.R. Kumria inasmuch as Shri R.R. Kumria was not pre-deceased by Shri Sudershan Kumria. Had Sudershan Kumria, pre-deceased Shri R.R. Kumria then the contention of the learned counsel for the plaintiffs would have to be accepted because the children of a pre-deceased son could fall under Class I of the Schedule.
7. The judgment cited by the learned counsel for the plaintiff in the case of Karunakar Rout (Supra) does not help the plaintiffs' case in any manner. The reference to the law applicable to the Banaras School of Mitakshra would not have any applicability in the present case because the properties held by Shri Sudershan Kumria and Shri S.P. Kumria as Class I heirs of Late Shri R.R. Kumria cannot be regarded as properties of a coparcenery. The ratio of the decision in Karunakar Rout's case would have no application in the facts of the present case. The learned counsel for the plaintiff next relied upon the decision of a learned Single Judge of the Ranchi Bench of the Patna High Court in the case of Gopal Prasad v. Basushidhar Singh AIR 2000 Patna 240. In that case what had happened was that during the pendency of a partition suit certain properties were sought to be transferred by one of the parties. The plaintiffs filed an application for an order restraining the defendants from transferring the same. The plaintiffs sought such a restraint on the basis of their alleged preferential rights under Section 22 of the Hindu Succession Act, 1956. The Court of the first instance had directed the defendants not to transfer their shares in the land without the permission of the Court. However, this order was subsequently recalled. The question that arose for consideration before the High Court was whether the plaintiffs could move an application under Section 22 of the said Act in the partition suit itself or whether the plaintiffs were required to file a regular suit seeking such rights of pre-emption. The Court decided that it was not at all necessary for the plaintiffs to have filed a separate suit and an application under Section 22 could very well have been made in the pending partition suit.
8. I don't see how this decision in any way advances the cause of the plaintiffs herein. The learned counsel for the plaintiffs insists that in that case it was held that if a person has a right to partition then that person would also have a right to pre-emption under Section 22 of the said Act. Unfortunately, I am unable to see such a ratio in that case. The ratio is limited to this, that in a pending partition suit if any of the parties proposes to dispose of properties, if the right of pre-emption of parties is available to any one of the other parties, then such party need not file a separate suit but can agitate the issue in an application in the pending partition suit itself. This is not the position in the present case. It is not admitted that the plaintiffs have a preferential right under Section 22 of the said Act and it is not a case where a partition suit is pending and the plaintiff is being asked to file a separate suit to enforce its right under Section 22 of the said Act. Therefore, the decision in Gopal Prasad (Supra) has no relevance to the facts of the present case.
9. The learned counsel for the defendants reiterated that Section 22 of the said Act gives a preferential right only to the heirs in Class I. He submitted with reference to Mayne's Hindu Law & Usage 15th Edition and in particular to pages 1195, 1196 and 1198 thereof that the application of the said Section 22 is confined to Class I heirs only. Other heirs are not mentioned in the Section and so, they cannot claim any right under this Section. I am in agreement with these views.
10. The preliminary issue is decided against the plaintiffs. They do not have locus standi to file and maintain this suit.
11. The plaintiffs are granted liberty to file a partition suit in accordance with law. This suit is dismissed. No costs. Interim orders stand vacated.