Skip to content


Tarak Das Ghosh Vs. Sunil Kumar Ghosh - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata High Court
Decided On
Case NumberC.R. No. 3257 of 1978
Judge
Reported inAIR1980Cal53
ActsHindu Succession Act, 1956 - Section 22; ;Limitation Act, 1963 - Schedule - Article 97; ;Code of Civil Procedure (CPC) , 1908 -Sections 9 and 104 - Order 43, Rule 1
AppellantTarak Das Ghosh
RespondentSunil Kumar Ghosh
Appellant AdvocateS.P. Roychowdhury, ;P.B. Das and ;A.K. Rakshit, Advs.
Respondent AdvocateSaktinath Mukherjee and ;Bhaskar Ghosh, Advs.
Cases ReferredValliyil Sreedevi Amma v. Subhadra Devi
Excerpt:
- .....j.1. this rule is directed against an order passed in an appeal from the decision of the learned subordinate judge, rendered in misc. case arising out of an application under section 22 of the hindu succession act, 1956 (hereinafter referred to as the said act).2. the application under section 22 of the said act was made by the present petitioner on the following allegations :the disputed property originally belonged to bhujonga bhushon ghosh and on his death it devolved upon his son namely, tarak das ghosh, the present petitioner, his widow o. p. no. 4 and his daughters opposite parties nos. 5 to 8. the said heirs of bhujonga inherited the property in question as class i heirs of his. said opposite party no. 6 and said opposite party no. 4 on her own behalf and on behalf of.....
Judgment:
ORDER

D.C. Chakravorti, J.

1. This Rule is directed against an order passed in an appeal from the decision of the learned Subordinate Judge, rendered in Misc. Case arising out of an application under Section 22 of the Hindu Succession Act, 1956 (hereinafter referred to as the said Act).

2. The application under Section 22 of the said Act was made by the present petitioner on the following allegations :

The disputed property originally belonged to Bhujonga Bhushon Ghosh and on his death it devolved upon his son namely, Tarak Das Ghosh, the present petitioner, his widow O. P. No. 4 and his daughters Opposite Parties Nos. 5 to 8. The said heirs of Bhujonga inherited the property in question as Class I heirs of his. Said Opposite Party No. 6 and said Opposite Party No. 4 on her own behalf and on behalf of her minor daughter Opposite Party No. 5 sold some land out of the said property for Rs. 2000/- to Opposite Party No. 3 on March 2, 1973 by Kobala (Ext. A). The said vendors also sold on the same date some land out of the said property to Opposite Party No. 1 for Rs. 2500/- and some land out of the said property to Opposite Party No. 2 for Rs. 2500/- by Kobalas (Exts. A1 and A2) respectively. Said Opposite Parties Nos. 1 to 3 were stranger-purchasers. On these allegations the petitioner seeks to get the lands sold as aforesaid transferred to him in exercise of his preferential right under Section 22 of the said Act.

3. Opposite Parties Nos. 1 to 3 in their written objections contended that the application under Section 22 of the said Act was barred by limitation and was bad for non-joinder of the necessary parties and misjoinder of cause of action. It is their further case that before the aforesaid sales on March 2, 1973 the Opposite Parties Nos. 4 to 6 proposed to sell the said land to the petitioner but he expressed his reluctance to purchase the same.

4. The learned Subordinate Judge dismissed the said Misc. Case on the ground that the said application under Section 22 was barred by limitation.

5. On appeal the learned Additional District Judge found that the said application under Section 22 was not barred by limitation but dismissed the appeal on the ground that no appeal would lie from the order passed by the learned Subordinate Judge.

6. Mr. S. P. Roychowdhury, the learned Advocate appearing in support of the Rule contended that the Court of Appeal below was wrong in holding that appeal did not lie from the order passed by the learned Subordinate Judge under Section 22 of the said Act and that on the finding of the Court of Appeal below that the application was not barred by limitation, the application under Section 22 of the said Act should have been allowed.

7. Mr. Saktinath Mukherjee, appearing on behalf of the opposite party on the other hand, argued that the learned Subordinate Judge was right in holding that the application under Section 22 of the said Act was barred by limitation and that the finding of the Court of Appeal below that no appeal lay from the judgment of the learned Subordinate Judge was also correct. According to the learned Subordinate Judge, Article 97 of the Limitation Act of 1963 was applicable to the present case while according to the Court of Appeal below it was Article 137 which applied to the present case. The learned Subordinate Judge takes the right conferred by Section 22 for a right of pre-emption while the Court of Appeal below differing from the learned Subordinate Judge takes the view that the right conferred by Section 22 was not a right of pre-emption but it was a preferential right to acquire property in certain circumstances. If the right in question were a right of pre-emption the period of limitation would be determined by Article 97 of the Limitation Act, 1963 and if the right in question be of not a right of pre-emption Article 97 would not apply and in that event residuary Article 137 would apply.

8. It will appear from the definition of 'right of pre-emption' as appearing in Sweet Law Dictionary that it is the right of purchasing property before or in preference to other persons. Further the word 'pre-emption' is derived from 'prae emptio' and pre-emption is thus an act of buying before another. Having regard to all this I cannot but hold that the right which is conferred by Section 22 of the said Act is a right of pre-emption, for, here when one or several persons on whom an interest in any immovable property devolves on the death of a person dying intestate as heirs specified in Class I of the Schedule and when one of such heirs proposes to transfer his or her interest in the property, the other heirs are given a preferential right to acquire the interest proposed to be transferred. Here the right in question is one enabling a person to purchase the property in preference to others. When one of the heirs referred to above proposes to sell his interest in the property, which interest he got along with others as heirs belonging to Class I, the other heirs will have a right to purchase the same in exclusion to stranger-purchasers. The right is obviously, therefore, a right of preemption. In this view of the matter I ought to hold that the learned Subordinate Judge was right in applying Article 97 to the facts and circumstances of the case and in holding that the application under Section 22 was barred by limitation as it was made at a time beyond the period of limitation prescribed by Article 97 of the Limitation Act. Further I accept the contention of Mr. Mukherjee that the Court of Appeal below rightly held that no appeal would lie from a decision under Section 22 of the said Act. An order made on an application under Section 22 of the said Act is not a decree and is, therefore, not appealable as such. Further this is not one of the kind of orders which were specifically made appealable by the provisions of the Code of Civil Procedure. This is also the view expressed in Sachindra Nath Banerjee v. Hari Bhushan Banerjee, (1963) 67 Cal WN 792. In this view of the matter the Rule ought to be discharged.

9. Mr. Mukherjee, the learned Advocate appearing on behalf of the opposite party rightly contended that the right conferred by Section 22 of the said Act cannot be enforced by filing an application under the provisions of Section 22, for, the legislature while conferring that right did not lay down any special procedure for the enforcement of such right. The first two sub-sections of Section 22 are as follows :

'(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 by 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.'

10. Thus, it will appear from provisions of Section 22 that by Sub-section (1) a right is conferred but there is nothing in that sub-section to indicate what procedure is to be followed in the matter of enforcement of that right. Sub-section (2) provides for cases where the parties fail to agree on the amount of consideration to be paid for the transfer of the property and it lays down the procedure for having the amount of consideration determined by the Court on an application being made to it. Thus under Sub-section (2) an application may be made to the Court but the scope of that application is quite limited. Such application may be made only for the purpose of determination of the amount of consideration and not for the purpose of enforcing the right conferred by sub-section (1). 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 Code of Civil Procedure for enforcement of his right. Accordingly, the right conferred by Section 22 can be enforced only by the institution of a regular suit. It is significant to note in this connection that in cases where a right is created by a special Statute generally a procedure is also prescribed thereby for the enforcement of such right. By way of illustration mention may be made of provisions of Section 24 of the West Bengal Non-Agricultural Tenancy Act, 1949, Section 8 Of the Land Reforms Act, 1955 and Section 26F of the Bengal Tenancy Act 1885. In all these cases there is specific provision made for the making of an application when the right is sought to be enforced. But as already pointed out Sub-section (1) of Section 22 creates a right without specifying any special mode for enforcing the same. This view was also adopted by the Kerala High Court in Valliyil Sreedevi Amma v. Subhadra Devi, : AIR1976Ker19 . In the circumstances, it cannot but be held that the original application under Section 22 before the trial Court was not maintainable.

11. Mr. Roychowdhury further argued that even if the appeal before the Court of Appeal below was not maintainable the present application under Section 115 of the Code of Civil Procedure may be treated as one made against the order of the learned Subordinate Judge. In view of my findings aforesaid even if the present application under Section 115 of the Code of Civil Procedure be treated as one made against the order passed by the learned Subordinate Judge the present application under Section 115 of the Code of Civil Procedure ought to fail, for, I have already held that the original application under Section 22 of the said Act was not only barred by limitation but also not maintainable. Further so far as the present contention of Mr. Roychowdhury is concerned Mr. Mukherjee's argument is that if the present application under Section 115 of the Code of Civil procedure is to be treated as one made against the order passed by the learned Subordinate Judge the present application is barred by limitation, for it is made long after 90 days from the date of the order of the learned Subordinate Judge. Mr. Roychowdhury on the other hand argued that in view of the fact that in filing the appeal before the learned District Judge the petitioner depended on the advice of his lawyer and that in the circumstances of the case the delay should be condoned. The question whether the present application should be treated as one made against the order of the learned Subordinate Judge and, if it is so treated, whether the delay in filing the present application under Section 115 of the Code of Civil Procedure should be condoned need not be decided in this case as in view of the findings already arrived at by me in the foregoing paragraphs this will be an exercise in futility.

12. As all the questions raised by Mr. Roychowdhury fail, the Rule ought to be discharged.

13. The Rule is accordingly discharged without, however, any order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //