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Valliyil Sreedevi Amma Vs. Subhadra Devi and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKerala High Court
Decided On
Case NumberAppeal Suit No. 288 of 1973
Judge
Reported inAIR1976Ker19
ActsHindu Succession Act, 1956 - Sections 22(1) and 22(2)
AppellantValliyil Sreedevi Amma
RespondentSubhadra Devi and ors.
Appellant Advocate T.L. Viswanatha Iyer and; E.R. Venkiteswaran, Advs.
Respondent Advocate T.R.G. Warrier and; K. Ramakumar, Advs.
DispositionAppeal dismissed
Excerpt:
.....right conferred by sub-section (1) nugatory since it can with immunity be defeated by the other co-heir by merely transferring away his share before an application under section 22(2) is made by the sharer who wishes to exercise his rights under subsection (1). on this basis it was submitted that the view taken by the lower court that the petition was where the properties have been already alienated in favour of strangers there is all the more reason why there should be a full and fair adjudication of the entire matter in a suit tried before a competent civil court because various factual questions are bound to arise for determination in such a suit wherein the principal issue would be whether the transfer complained of was effected in violation of sub-section (1) of section 22. the main..........for enforcement of any civil right has to be resorted to by the co-heirs who wish to enforce their rights under section 22(1); in other words the remedy is by way of a tegular civil suit before the competent court. where the properties have been already alienated in favour of strangers there is all the more reason why there should be a full and fair adjudication of the entire matter in a suit tried before a competent civil court because various factual questions are bound to arise for determination in such a suit wherein the principal issue would be whether the transfer complained of was effected in violation of sub-section (1) of section 22. the main purpose of such a suit instituted by the co-heir will necessarily be the enforcement of the right conferred by section 22(1) of the.....
Judgment:

Balakrishna Eradi, J.

1. This appeal has been preferred against the order of the Subordinate Judge, Tirur dismissing a petition O. P. No. 511 of 1970 filed by the appellant herein under Section 22(2) of the Hindu Succession Act, 1956 (30 of 1956) hereinafter referred to as the Act. The petition was dismissed by the Court below on the basis of a preliminary finding arrived at by it that an application under Section 22(2) of the Act for determination of the value of the share of a co-heir is not maintainable if such share has been already transferred by the co-heir to a stranger and that in such cases the remedy available to a party seeking to enforce the right conferred by Section 22(1) of the Act is only to institute a regular suit for specific performance.

2. The properties described in the petition filed before the Court below, excepting a residential building situated thereon, belonged to one Jayapala Menon. In respect of the residential building the saiJ Jayapala Menon had only an undivided share. Jayapala Menon died intestate on 26-5-1965. Under the provisions of the Act the only heirs entitled to succeed to the estate of the deceased are his mother and his widow, both of whom are Class I heirs under the Act. The appellant before us who figured as the petitioner in the lower Court is the mother of the deceased Jayapala Menon. The widow of the deceased was impleaded as 1st respondent before the Court below and she is the 1st respondent in this appeal also. On 31-8-1968 the 1st respondent executed a registered sale deed transferring her undivided half share in the petition schedule properties in favour of respondents Nos. 2 to 4 for a consideration of Rs. 10,500/-. It was shortly thereafter that the appellant filed the petition under Section 22(2) of the Act on 13-11-1968 praying that the value of the 1st respondent's half right in the property may be determined by the Court and that the said right may be directed to be transferred to her on payment of the value so determined, ignoring the sale in favour of respondents Nos. 2 to 4. The petition, was originally presented to the District Court, Kozhikode and had been numbered there as O. P. No. 368 of 1968; subsequently it was transferred to the Subordinate Judge's Court, Tirur where it was renumbered as O. P. No. 511 of 1970.

3. Respondents Nos. 2 to 4 who contested the matter before the lower Court raised a preliminary objection that Section 22(1) of the Act does not contemplate any application for fixation of price after the concerned property has already been sold away by the co-heir whose share is sought to be evaluated and that in any event the prayers for the grant of a declaration of invalidity of the sale effected in favour of respondents Nos. 2 to 4 and for a direction for transferring the share of the 1st respondent to the petitioner on payment of the value to be determined by the Court are wholly outside the scope of a petition preferred under Section 22(2) of the Act.

4. The lower court elaborately went into the merits of the above objections raised by respondents Nos. 2 to 4 and came to the conclusion that although an application for determination of the value of a share of a co-heir is entertainable even after concerned co-heir has alienated that share, the present petition is not maintainable in law in as much as it contained prayers for the relief of declaration of invalidity of the transfer effected in favour of respondents Nos. 2 to 4 and for directing the transfer and vesting of the rights of the 1st respondent in the petitioner which are reliefs that can be granted only in a regular suit. The lower Court expressed the view that the remedy of the petitioner lies only in filing a suit for specific performance and dismissed the petition as not maintainable. The appellant contends that the order so passed by the Court below is contrary to law and should be set aside.

5. The learned advocate appearing for the appellant urged that even though the provision contained in Section 22 may appear to be not sufficiently comprehensive or complete for carrying out the purpose underlying the section, the Court should interpret the section in such a way as would help to give full effect to the intention of Parliament. According to counsel if such an approach is made, it is reasonable to construe Section 22 of the Act as conferring on the court dealing with an application under that provision the incidental powers to investigate into the validity of any transfer that might have been effected by a co-heir in contravention of the right conferred by Sub-section (1) of Section 22 and also to declare any such transfer invalid in case it be found on such investigation that the transfer had been effected in contravention of Sub-section (1). Counsel pointed out that unless such a construction is placed on the section the result would be virtually to render the right conferred by Sub-section (1) nugatory since it can with immunity be defeated by the other co-heir by merely transferring away his share before an application under Section 22(2) is made by the sharer who wishes to exercise his rights under Subsection (1). On this basis it was submitted that the view taken by the lower court that the petition was defective on the ground that it contained prayers which were outside tie scope of an application under Sub-section (2) of Section 22 is incorrect and that the order of the Court below dismissing the petition should be set aside.

6. Section 22 of the Act is in the following terms:--

'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 his 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 it 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 1 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.'

The object of Sub-section (1) as we understand it is 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 ether beirs should have a preferential tight to acquire the interest which is so proposed to be transferred. 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, The Section confers on such co-heirs a preferential right to acquire the interest which is proposed to be transferred by the other coheir. In case the proposed transfer is effected by one of the co-heirs in violation of the right conferred on his co-heirs by Sub-section (1) the latter cannot certainly be without a remedy because every legal right must necessarily carry with it a remedy for enforcing the same. The remedy of the non-alienating co-heirs, in such circumstances, will, in our opinion, be to seek the intervention of the Court to enable them to acquire the right which has been transferred away by the other co-heir in violation of Sub-section (1) of Section 22. In as much as the section does not provide any special procedure for seeking the said remedy, the ordinary procedure for enforcement of any civil right has to be resorted to by the co-heirs who wish to enforce their rights under Section 22(1); in other words the remedy is by way of a tegular civil suit before the competent court. Where the properties have been already alienated in favour of strangers there is all the more reason why there should be a full and fair adjudication of the entire matter in a suit tried before a competent civil Court because various factual questions are bound to arise for determination in such a suit wherein the principal issue would be whether the transfer complained of was effected in violation of Sub-section (1) of Section 22. The main purpose of such a suit instituted by the co-heir will necessarily be the enforcement of the right conferred by Section 22(1) of the Act. The question of invalidity of the transfer effected by the other co-heir in favour of strangers becomes relevant in such an action as an incidental matter which has necessarily to be gone into for the purpose of determining whether the plaintiff is entitled to the relief sought by him against his co-heir in enforcement of the right conferred by Section 22(1).

7. We are unable to agree with the contention advanced by the learned counsel for the appellant that the aforesaid question can be legitimately gone into by the Court even in an application filed under Section 22 of the Act. In our opinion the object of the legislature in enacting Sub-section (2) of Section 22 is only to provide a cheap and speedy remedy in cases where the property is in the hands of the co-heir who proposes to transfer the same and another co-heir is interested in acquiring the rights of the former but the parties are not able to agree about the consideration for which the former's interest in the property should be transferred to the latter. Where the property itself has been already transferred away by the co-heir first mentioned we fail to see what useful purpose will be served by an investigation conducted by the Court under Sub-section (2) for determining the price at which the property may be sold by the former to the latter. In such a case an investigation under Sub-section (2) may become relevant only after the person who feels aggrieved by the transfer effected by his co-heir in contravention of the provisions of Sub-section (1) has by resort to the appropriate legal process obtained a declaration from the competent Civil Court that the sale effected by the co-heir in favour of strangers is invalid. Even in such a case, unless the co-heir who had effected the impugned alienation again proposes to transfer his interest in the property there can be no occasion for any determination to be made by the Court about the price payable by the other co-sharer under Sub-section (2) of Section 22,

8. Decided cases dealing with Section 22 of the Act appear to be few in number and those which have been brought to our notice do not directly deal with the question that we are called upon to decide in this case and hence we do not consider it necessary to advert to them.

9. In the light of what we have stated above we are clearly of the view that the petition filed in the Court by the present appellant under Section 22(2) of the Act was misconceived and was not maintainable. The 1st respondent had already sold his interest in favour of respondents Nos. 2 to 4 and no steps have been taken by the petitioner in the manner contemplated by law for assertion and enforcement of her rights under Sub-section (1). It has to be noticed in this connection that even though Section 22(1) does confer a right in the coheirs to acquire the share of another co-heir who proposes to transfer the share there is nothing in the said section which warrants an alienation effected in contravention of its provisions being regarded as void. Such an alienation will, at best, be only voidable at the instance of the sharer who institutes the suit for enforcement of his right under Subsection (1) and subject to the said limited contingency the sale will be operative and binding.

10. The lower Court was perfectly right in holding that the prayers incorporated in the petition for a declaration of invalidity of the sale effected by the 1st respondent in favour of respondents Nos. 2 to 4 and for a direction for transfer of the 1st respondent's share in favour of the petitioner as a further relief consequential to such a declaration are totally outside the scope of an application under Section 22(2) of the Act and we have no hesitation to uphold the said finding. We cannot, however, see our way to agree with the view expressed by the lower Court that the proper remedy for the petitioner is to institute a suit for specific performance. Where there is no agreement either contractual or statutory for conveyance of the property there can be no question of a party seeking the relief of specific performance. The remedy as we have already indicated, is only to file a suit for enforcement of the limited right of purchase conferred by Sub-section (1) of Section 22 and in such a suit the question of invalidity of the sale already effected by the co-sharer will be incidentally investigated and decided.

11. In the light of what we have observed above it must follow that tie dismissal of the petition by the Court below was fully justified. The order of the Court below is accordingly confirmed and this appeal is dismissed. The parties will bear their respective costs.


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