Jagdish Prasad Verma vs Ramesh Chand Sharma

S.K. Gangele, J.—Heard. The petitioner/defendant No. 5 has filed this petition against the order dt. 30.6.2010 (Annexure P/1) passed by the Trial Court.

By the aforesaid order, the Trial Court decided the preliminary issue against the petitioner in regard to valuation of suit and payment of ad valorem court fees.

The respondent No. 1/plaintiff filed a suit for declaration and permanent injunction. He pleaded that defendant No. 1 - Suresh Chand, who was died, and the plaintiff were the real brothers. They had redeemed the property of a residential house situate at Ward No. 23 area 48 ft x 18 ft. Earlier it was of the ownership of their father Tikaram Sharma. A three storeyed building was constructed on the aforesaid land and a family settlement was executed between the plaintiff and deceased Suresh Chand of the aforesaid area.

The defendants No. 1 to 4, who are legal heirs of deceased Suresh Chand, vide registered sale deed dt. 3.2.2003 sold a portion of the house, which was of the ownership of Suresh Chand, in favour of defendant No. 5 in a consideration of Rs. 5,90,000/-. The aforesaid sale deed has been challenged by the plaintiff and he prayed a relief that a decree be granted against the respondents No. 1 to 4 and in his favour to the effect that he has a right of execution of sale deed in his favour of a portion, which was sold in favour of defendant No. 5 and the sale deed executed by defendants No. 1 to 4 in favour of Defendant No. 5 dt. 3.2.2003 be declared as null and void and permanent injunction be also issued in favour of plaintiff. The suit was valued at Rs. 500/- and on the aforesaid valuation court fees of Rs. 160/- was paid.

The petitioner/defendant No. 5 in his written statement pleaded that defendants No. 1 to 4-the legal heirs of the deceased Suresh Chand executed a sale deed in favour of the defendant No. 5 in a consideration of Rs. 5,90,000/- on 3.2.2003 and sold the house, which is constructed over the area 48 ft. x 9 ft. total 432 sq. ft. Plaintiff has no right over the aforesaid property. The defendant No. 5 also raised an objection that the suit was under valued and proper court fees was not paid. On the basis of aforesaid pleadings, preliminary issue was framed and vide impugned order (Annexure P/1) the trial court answered the issue in favour of plaintiff.

From the pleadings of the plaintiff, it is clear that that the plaintiff sought a declaration that the sale deed dt. 3.2.2003 be declared null and void and it be further declared that he has a right to execute the sale deed in his favour. The sale deed was executed by the legal heirs of deceased Suresh Chand, who was brother of the plaintiff. The sale deed is dated 3.2.2003. The suit was filed in the year 2006.

Earlier a suit was filed by the same plaintiff Ramesh Chand against the following persons:

Mahila Laxmidevi @ Godawari widow of Sureshchandra, Aged 50 years, resident of Mohalla Panchayati Dharmashala Oli, Nagar Morena M.P.

Sanjay Kumar Sharma, Aged 28 years.

Rakesh Kumar Sharma, Aged 25 years, Both sons of Suresh Sharma Residence of Panchayati Dharamshala Oli, Morena.

Mahila Kalpana D/o Sureshchand Sharma, w/o Kalua Parashar, 30 years, resident of near Fata Darwaja, Purana Shahar Dholpur (Rajasthan).

Sub Registrar, Office of Sub Registration Morena, M.P.

Jagdish Prashad S/o Buddhram R/o Panchayati Dharamshala Morena, M.P.

Aforesaid suit was dismissed and First Appeal was also dismissed. Against the order of dismissal, second appeal being S.A. No. 858/2005 was filed before this court. In the aforesaid appeal, the court has made following observation:-

As regards right of the plaintiff u/s 22 of the Act, 1956, as the Court has not decided the said question on merit, plaintiff has still remedy to file appropriate suit. Accordingly, appeal stands disposed of with the aforesaid liberty to the plaintiff.

The court has granted liberty to the plaintiff to file a suit on the basis of relief available to him u/s 22 of the Indian Succession Act, 1956 in regard to preferential right to acquire the property and thereafter the present suit has been filed.

Section 22(1) of the Indian Succession Act, 1956 is as under:-

Preferential right to acquire property in certain cases.-(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.

From the perusal of the section, it is clear that the preferential right is available to the heirs on the property 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, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.

In the present case, Suresh Chand has died. The plaintiff and Suresh Chand were brothers, so the plaintiff had a preferential right against Suresh Chand in view of Section 22(1) of Hindu Succession Act, 1956, but prima facie in my opinion, the plaintiff has no preferential right of property, which is devolved to the legal heirs of Suresh Chand on account of his death. In such circumstances, the sale deed executed by the legal heirs of plaintiff in favour of defendant No. 5 could not be said to be null and void. Hence, prima facie, it was necessary on the plaintiff to value the suit on the basis of the value of transaction executed in accordance with sale deed.

The argument advanced by the learned senior counsel that the plaintiff filed a suit for the purpose of enforcement of right u/s 22 of the Hindu Succession Act could not be accepted prima facie because as held by this court in earlier para. Hence, in my opinion, the trial court has committed an error of law in answering the issue No. 1 against the defendant No. 5/petitioner. Consequently, the petition is allowed. The impugned order (Annexure P/1) passed by the Trial Court is hereby quashed. It is held that the plaintiff has to value the suit in accordance with the transaction and the amount mentioned in the sale deed i.e. Rs. 5,90,000/- and pay the court fee accordingly. For the aforesaid purpose, two months'' time is granted to the plaintiff. The suit be also transferred before the appropriate court of jurisdiction for de novo hearing. No order as to costs.