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Muralidhar Das Vs. Bansidhar Das and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtOrissa High Court
Decided On
Case NumberCivil Revn. No. 387 of 1981
Judge
Reported inAIR1986Ori119
ActsHindu Succession Act, 1956 - Sections 8, 22, 22(1) and 22(2)
AppellantMuralidhar Das
RespondentBansidhar Das and ors.
Advocates:S. Misra, Adv. No. 2, ;N.K. Acharya and ;R.C. Rath, Advs.
DispositionRevision dismissed
Cases ReferredTarak Das Ghosh v. Sunil Kumar Ghosh
Excerpt:
.....not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india..........in this behalf.'sub-section (1) confers a substantive right on an heir who along with another heir or heirs specified in class i has acquired as heirs specified in class i interest in any immovable property or business by virtue of any intestate succession to have a preferential right to acquire the interest proposed to be transferred by the other heir or heirs to strangers. sub-section (1) confers only a preferential right. sub-section (2) makes the provision for meeting the contingency where the parties cannot agree to the consideration at which the right to acquire interest is proposed to be transferred. it provides that in such contingency, i.e. where the parties cannot agree on the consideration, the court may on an application in that behalf determine the consideration.3......
Judgment:
ORDER

R.C. Patnaik, J.

1. The petitioner became an heir specified in Class 1 of the Schedule to the Hindu Succession Act along with opposite parties 1 to 4 in respect of certain property by virtue of intestate succession under the Act. Opposite parties 1 to 4 having transferred their interest in the property which devolved upon all of them by intestate succession, the petitioner filed an application under Section 22 of the Hindu Succession Act (for short, 'the Act') and miscellaneous case No. 250 of 1977 was registered. The Court determined the consideration at Rs. 250A. On 16-2-79 the Court directed opposite parties 5 to 10 to retransfer the property to the petitioner. It further directed that on failure of the opposite parties 5 to 10 to execute the sale deed, the same would be executed by the Court. The petitioner instituted a proceeding for execution of the sale deed and recovery of possession. The sale deed was executed by the Court on the default of opposite parties 5 to 10. Then the difficulty cropped up. It struck to the Court that perhaps under the provisions of Section 22 of the Act the petitioner was not entitled to the reliefs sought by way of an execution before it. It went into the matter in depth and rejected the petition and dismissed the proceeding holding that Section 22 did not authorise the Court to do so.

2. Mr. S. Misra 2, the learned counsel for the petitioner, has strenuously urged that even though the provisions contained in Section 22 might not be sufficiently comprehensive to carry out the purpose underlying the section, the Court should so interpret the provision that the purpose of the beneficial provision is achieved. He has submitted that unless such an interpretation is given, the provision would be meaningless and would not serve the purpose for which it was enacted. Since the party has to approach the court of competent jurisdiction as provided in the explanation to Section 22 under Section 22(2) for determination of the consideration, the Civil Court ought also to have jurisdiction to confer the benefit in full measure. Section 22 of the Act reads as under :

'22. (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 incidental 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.'

Sub-section (1) confers a substantive right on an heir who along with another heir or heirs specified in Class I has acquired as heirs specified in Class I interest in any immovable property or business by virtue of any intestate succession to have a preferential right to acquire the interest proposed to be transferred by the other heir or heirs to strangers. Sub-section (1) confers only a preferential right. Sub-section (2) makes the provision for meeting the contingency where the parties cannot agree to the consideration at which the right to acquire interest is proposed to be transferred. It provides that in such contingency, i.e. where the parties cannot agree on the consideration, the Court may on an application in that behalf determine the consideration.

3. Sub-section (2) provides for determination of consideration when there is a difference between the parties, namely, the one intending to acquire and the other proposing to transfer. The provision does not go any further. Section 22 does not lay down any other procedure. The scope of the application is limited and hence the jurisdiction of the Court. The section does not lay down the procedure for the enforcement of the right conferred under Sub-section (1). Only one aspect of the controversies that might arise pursuant to the right conferred by Sub-section (1) has been taken care of and no other. The provision being clear and categorical and there being no ambiguity in it, it is not open to the Court to so interpret the provision which would amount to legislating on its part. Ordinarily the Courts do not make law but interpret it.

4. The party is not without a remedy. Armed with the substantive right conferred by Sub-section (1) he may seek the remedy in the Civil Court of competent jurisdiction under the provisions of the Civil P.C. and the provisions contained in the Specific Relief Act. He may move the Court for realisation of his preferential right in cases where the other co-sharers are proposing to transfer or where transfer has already been made in favour of strangers. Where a transfer has already been effected, Sub-section (2) does not authorise the Court to nullify the transfer or direct the transferees to retransfer to the co-sharer exercising his right of pre-emption. No doubt it is true that where power is conferred on an authority to do certain thing, it has incidental powers to carry out the same. But the provision in Sub-section (2) specifically authorises the Court to do a specific thing and nothing more. To me it appears that the intention behind Sub-section (2) embraces the only situation where the co-heir intending to exercise right of preemption and the co-heir or co-heirs proposing to transfer his/their interest/interests cannot reach an agreement as to the consideration for transfer though the co-heir or co-heirs proposing to transfer is/are agreeable to transfer in favour of the co-heir exercising right of pre-emption. It does not apply to a situation where the interest has been transferred and third party transferees have come into the picture or where the co-heir or co-heirs proposing to transfer are not agreeable to transfer their shares to the co-heir exercising right of pre-emption under Sub-section (1). The remedy of the aggrieved co-heir lies in the Civil Court of competent jurisdiction.

5. The view which I have taken gets support from a Division Bench decision of the Kerala High Court in the case of Valliyil Sreedevi Amma v. Subhadra Devi, AIR 1976 Ker 19 which has been followed in a single judge decision of the Calcutta High Court in the case of Tarak Das Ghosh v. Sunil Kumar Ghosh, AIR 1980 Cal 53. The ratio laid down therein has my respectful concurrence. I would, therefore, uphold the view taken by the learned Munsif that the proceeding for executing the order passed under Sub-section (2) of Section 22 of the Act was misconceived.

6. The revision is devoid of any merit and is dismissed. As there is no appearance for the other side, there would be no order for costs.


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