Document Fragment View

Matching Fragments

Section 122 of Transfer of Property Act "Gift" defined- "Gift" is the transfer to certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.

Acceptance when to be made- Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.

If the donee dies before acceptance, the gift is void."

Upon the meaningful reading of the provision contained in Section 22 of the Act, the preferential right is confined to the heirs specified in Class-I of the Schedule and not to other class of heirs. Such right is restricted to an immovable property and the Parliament in his wisdom has not made any differentiation into the categories of the properties. Apart from the same such preferential right is also extended to any business carried on by the owner who upon his death devolves upon the heirs specified in Class-I of the Schedule. It is an additional right to the other well recognised right of pre- emption envisaged under Section 4 of the Partition Act and Section 8 of the West Bengal Land Reforms Act, 1956. It is more expansive provision in comparison to the other right of pre-emption recognised in the sections or the Act. Section 4 of the Partition Act is restricted to a dwelling house belonging to an undivided family but Section 22 stretches its horizon to any property or business carried on by the Hindu dying intestate either solely or in conjunction with others. The only restriction or reservation one can see from the Section 22 is that it is available to the heirs specified in Class-I of the schedule. The plain and meaningful reading of the language employed in Section 22 of the Act leaves no ambiguity that if a person dies intestate and his interest in the immovable property devolves upon his heirs specified in Class-I of the schedule and if anyone of the heirs proposes to transfer his or her interest in the property, the other heirs within the said class have a preferential right to acquire such interests under the aforesaid provision which immediately gets activated the moment one of the heir specified in Class-I of the Schedule proposes to transfer his share in the immovable property or a business carried on by the predecessor other than the person specified in the Class I of the schedule. This leads to another question; what meaning can be assigned to the expression "proposes to transfer his or her interest in the immovable property". There are divergent views on the above. Karnataka High Court in Amma Jamma(Supra) has laid much stress to the aforesaid expression and held that the concluded transfer or in other words transfer already effected would not come within the peripheral of the aforesaid provision. It is held that the plain and simple meaning must be attributed to such expression appearing in the section and no additional or an extra words can be attached or incorporated which would otherwise frustrate the legislative intent. It would be profitable to quote the relevant observations made in the aforesaid judgment which read thus:

"The expression 'proposes to transfer' and the expression 'proposes to be transferred' have got their material importance and significance in the context of preferential right to acquire the property by a co-heir, as Sub-section(1) of Section 22 indicates that it is prospective in its operation, confers a preferential right to a co-owner and provides that if any immovable property or interest in immovable property of an intestate or any interest in the business carried on by an intestate either solely or in conjunction with others, devolves upon two or more heirs as specified in Class-I of the Schedule of the intestate and then, any one of such heirs proposes to transfer his or her interest in the property or business, then, in those cases, the, other heirs will have a preferential right to acquire the interest proposed to be transferred. The use of expression 'proposes to transfer' or 'interest proposed to be transferred' indicate that the intention of the legislature is that the preferential right to acquire such interest would arise or would accrue to other heirs in case of transfers, where, the transfer is in the nature of a contract in the form of proposal and acceptance and at the stage when there is a proposal to transfer. The use of these expressions indicate that there should be concept of proposal to transfer from one of the vendors. Proposal as per provisions of the Contract Act means, when one person signifies to another his willingness to do or to abstain from doing anything with the view of obtaining the assent of that another to such actor abstinence, he may be said to make the proposal and when a person to whom the proposal is made, signifies and assents thereto, the proposal is said to be accepted and on acceptance, the proposal becomes a promise, the promise means an accepted proposal and in case of promise or proposal, at the desire of the promissor, a promisee or any other person has done or abstains or abstained from doing or promises to do something, such act or abstinence or promise is called consideration for the promise and every promise or set of promises which form consideration from each other is called to be an agreement and an agreement enforceable by law is termed to be a contract and all agreements which are made by free consent of the parties competent to contract for a lawful consideration with a lawful object and which are not declared under the provisions of the Contract Act to be void, it means, all agreements in which there are two parties, who enter into the contract with free consent provided those competent to contract and they have to contract for lawful consideration and object; they are said to enter into a contract. A contract is an agreement between the promissor and the promisee. A contract without consideration is said to be void and is not enforceable under Section 25 of the Contract Act, except, the cases mentioned under Clause 1, 2 and 3 of the Contract Act."
"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.

We, thus, held that even a gift being the transfer comes within the ambit of Section 22 of the Act and the heir coming within Class-I of the Schedule is entitled to preferential right.

So far as the concluded transfer is concerned, we do not find any restriction having put under Section 22 to have its restricted applicability in case of proposed transfer if the transfer has been affected without his knowledge, still the heir can maintain the proceeding invoking the preferential right enshrined under Section 22 of the Act. We thus modifying the decree of the Trial Court to the extent that plaintiff has a preferential right in respect of Ka(1) Schedule Property.