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1 - 5 of 5 (0.37 seconds)The Code of Civil Procedure, 1908
Valliyil Sreedevi Amma vs Subhadra Devi And Ors. on 20 January, 1975
In A.I.R. 1976 Kerala 19, Valliyil Sreedevi Amma v. Subhadra Devi and Ors., it was held that where one of the co-heirs transfer his interest in violation of section 22(1) of the Hindu Succession Act, the remedy of the other co-heirs to enforce their transfer interest is by way of a suit and the application under section 22(1) of the Act is not maintainable. The Hon'ble Bench of Kerala High Court after interpreting the provisions of Section 22 came to the conclusion that the object of sub-section (1) of said Section was that in cases where by virtue of intestate succession under the Act any interest in immovable property has devolved upon two or more heirs specified in Class I of the Schedule and any one of such heirs proposes to transfer his interest in the property the other heirs should have a preferential right to acquire the interest which is so proposed to be transferred. It was also held that the said intention of Parliament can be effectuated only if we consider the section as conferring an enforceable right on the heirs other than the one who proposes to transfer his interest. So far as the remedy is concerned it was held that it lies in the filing of regular civil suit before the competent authority.
Tarak Das Ghosh vs Sunil Kumar Ghosh on 12 December, 1979
This view of the Kerala High Court has again been followed in A.I.R. 1980 Calcutta 53, Tarak Das Ghosh v. Sunil Kumar Ghosh, where it was held that application disposed of under Section 22 of the Hindu Succession Act is not a decree and was not. appealable. Order on such application was not one of the kinds of orders which are specifically made appealable by C.P.C. under Section 104 and Order 43 Rule 1 C.P.C. The Calcutta High Court further held that in cases where any statute creates a right without specifying the procedure for enforcement of such right, the person intending to enforce such right shall have to resort to the procedure contained in the Civil P.C. for enforcement of his right. Accordingly the right conferred by Section 22 can be enforced only by the institution of a regular suit.
Promode Kumar Ghosh And Ors. vs The Calcutta Electric Supply ... on 19 July, 1979
7. Faced with the above situation, the learned counsel for the petitioners relied upon an authority of Calcutta High Court reported as A.I.R. 1979 Calcutta 380, Promode Kumar Ghosh and Ors. v. The Calcutta Electric Supply Corporation Ltd. and Ors., and A.I.R. 1981 Madhya Pradesh 250, Ghewarwala Jain v. Hanuman Parsad and Anr., and the contention was raised by Shri Jain that it was obligatory on the part of the trial Court to afford an opportunity to the petitioners asking them to amend the application and to convert it into a suit. The contention is devoid of any merit. It was specifically pleaded that the contesting respondent No. 1 in his reply that the remedy availed by the petitioners was not tenable. The citations of Calcutta and Madhya Pradesh High Court are totally alien to the controversy in hand. In the Madhya Pradesh citation the application was moved by the petitioners for amendment of the application which was allowed by the Court itself. In the present case, no such application was ever moved by the petitioner before the trial Court and it will be not proper at this stage to allow the prayer made by Shri Jain. The citation of A.I.R. 1979 Calcutta 380 has been rightly distinguished by the trial Court in para No. 12 of the order.
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