MD. ALLAUDDIN vs RAM LAKHAN PRASAD VISHWAKARMA

Heard Mr. V. Shivnath, Senior counsel assisted Mr. Niraj Kishore, counsel appearing on behalf of the petitioner.

Nobody appears on behalf of the respondents.

This writ petition has been filed for the following reliefs:

a) “For quashing the order dated 17.08.2007 (Annexure-3) passed by Court of District Judge, Palamau, at Daltonganj in Misc. Appeal No.7/2006,

which was heard analogously with Misc.Appeal No.8/2006 rejecting the appeal and the order dated 15.02.2003 (Annexure-1) passed by the Court of

SubOrdinate Judge, Daltonganj, Palamau in Misc. Case No.8/2000 allowing the application for pre-emption under Section 22 of the Hindu Succession

Act, 1956.

b) For a direction declaring that all consequential order is illegal passed pursuant to impugned order dated 17.08.2007 (Annexure-3) and order dated

15.02.2003 (Annexure-1) with respect to the registered sale-deed executed by respondent no.2 in favour of the petitioner on 05.06.2000.

c) For a direction restraining the respondents to interfere with the peaceful possession of the petitioner on portion of Plot Nos.217, 218, 219 and 220,

Khata No.25 and 31 appertaining to and situated at Village Tendua- Khurd, P.S. Hussainabad, District Palamau.â€​

Counsel for the petitioner submits as follows:

a. The respondent nos.1 and 2 are full brothers and they jointly acquired an area of 2.98 acres of agricultural land of Khata Nos.25 and 31

appertaining to Plot Nos.217, 218, 219 and 220 of Village Tandwa-Khurd, P.S. Hussainabad, District Palamau from one Bashistha Singh. The

property was purchased by way of registered sale-deed no.658 dated 01.09.1989.

b. Thereafter, the respondent no.2 made a transfer out of his ½ share in the aforesaid immovable property by a registered sale-deed no.1215 dated

05.06.2000 in favour of the petitioner.Â

c. The Respondent no.2 by another sale-deed no.1216 dated 05.06.2000 made another transfer of his remaining ½ share of the property in favour of

Jahir Alam.

d. The respondent no.1 namely, Ram Lakhan Prasad Vishwakarma on 01.09.2000 filed application under Section 22 of Hindu Succession Act, 1956

before the Court of Sub-Judge- I, Daltonganj, Palamau exercising his so-called right of pre-emption with respect of the aforesaid property

transferred in favour of the petitioner and thereafter an ex-parte order in Miscellaneous Case No.8 of 2000 was passed allowing the said

miscellaneous case in favour of the respondent no.1 herein allowing his so called right of pre-emption. By this order the sale deed was declared to

be null and void and a direction was issued to execute a sale deed in favour of the Respondent no 1 (Ram Lakhan Prasad Vishwakarma )Â

e. Against this the petitioner filed miscellaneous appeal being Miscellaneous Appeal No.7 of 2006. The said miscellaneous appeal was dismissed by

the learned District Judge, Palamau at Daltonganj vide impugned order dated 17.08.2007.

f. The order passed in Miscellaneous Case passed by Sub-Judge- I at Daltonganj as well as the appellate order dated 17.08.2007 passed in

Miscellaneous Appeal are under challenge before this Court.Â

g. This writ petition involves point of law regarding the applicability of Section 22 of Hindu Succession Act, 1956.

h. The condition precedent for applicability of Section 22 of Hindu Succession Act, 1956 is that the right of pre-emption is available only when the

property is an intestate property and if the property is merely a joint property acquired by two brothers, Section 22 of Hindu Succession Act, 1956 is

not applicable.

i. Counsel for the petitioner further submits that admittedly the respondents in this case namely, Ram Lakhan Prasad Vishwakarma and Ramji

Vishwakarma jointly purchased the property from one Bashistha Singh and the property cannot be said to be property acquired by intestate succession

and the property was a joint property of respondent nos.1 and 2.Â

j. He further submits that from the perusal of the impugned orders, it is apparent that the application which was filed by the respondent no.1

before the court of Sub-Judge- I, Daltonganj, Palamau does not make any averment that this property was acquired from any joint family fund or the

same is a joint family property. There is a clear averment that this property was jointly acquired by Ram Lakhan Prasad Vishwakarma and Ramji

Vishwakarma.

k. Counsel for the petitioner further submits that on the face of the records, it is apparent that the property involved in this case was never a property

arising out of an intestate succession and accordingly, Section 22 of Hindu Succession Act, 1956 has no application under the facts and circumstances

of this case.Â

l. He submits that originally when the petition was allowed by learned Sub-Judge- I, Daltonganj the same was ex-parte order and against which the

petitioner filed his miscellaneous appeal which was dismissed inter alia on the ground that the petitioner has not chosen to file an application under

Order IX Rule 13 C.P.C. for setting-aside the ex-parte order and has instead chosen to file appeal before this Court.

m. He further submits that other point which has been discussed by the lower appellate court is regarding the applicability of Section 22 of Hindu

Succession Act, 1956 in connection with agricultural land which has no relevance in view of the aforesaid legal issue involved in this case.

n. Counsel for the petitioner also submits that the point regarding non-applicability of Section 22 of Hindu Succession Act, 1956 in connection with the

property which has been jointly purchased by the respondents in this case has not been considered by the authorities below.Â

From the perusal of the records of this case it appears that notice was issued on respondent nos.1 and 2. Respondent no.2 had entered his

appearance through Vakalatnama and so far as respondent no.1 is concerned, as per the office note the notice has been validly served but nobody has

appeared on behalf of the respondent no.1.

Today, during the course of argument no body is appearing on behalf of the respondent nos.1 and 2.

After hearing the counsel for the petitioner and after considering the facts and circumstances of this case, this Court is inclined to allow this writ

petition on account of the following facts and reasons:

a) The only issue which is to be decided is whether provisions of Section 22(1)Â of Hindu Succession Act, 1956 is applicable when the property does

not devolve by way of intestate succession upon the two brothers ( respondent no. 1 and 2) but are jointly purchased by way of sale-deed executed by

third party?

b) Before entering into the merits of the case, it would be useful to quote Section 22 of Hindu Succession Act, 1956.

 “22.Preferential right to acquire property in certain cases-Â

(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 incident to the application.Â

(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.â€​

c) From bare perusal of the Section 22 of the Hindu Succession Act, 1956 it appears that it is the mandate of law that where after the commencement

of the Act, the interest in any immovable property of an intestate, 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. Upon bare perusal of Section 22 of Hindu Succession Act, 1956 it appears that the condition precedent for applicability of Section 22 of

Hindu Succession Act, 1956 is that the property should have devolved upon the Class I heirs by way of intestate succession.Â

d) From the bare perusal of the petition filed by the respondent no.1 before the court below it appears that the property involved in this case was

jointly purchased by respondent nos.1 and 2 from a third party and the property has not devolved upon them by way of succession. In such

circumstances Section 22 of Hindu Succession Act, 1956 is not applicable and accordingly, the petition which was filed by the respondent no.1 before

the court of Sub-Judge- I, Daltonganj, Palamau exercising his right of pre-emption as per the provisions of Section 22 of Hindu Succession Act, 1956

was itself not maintainable.

e) This court is of the considered view that provisions of Section 22(1) of Hindu Succession Act, 1956 is not applicable when the property did not

devolve by way of intestate succession upon the two brothers ( respondent nos. 1 and 2) but was jointly purchased by way of sale deed executed

by third party.Â

f) This is a pure legal issue and on the face of the record, it appears that Section 22 of Hindu Succession Act, 1956 has no applicability to the facts

and circumstances of this case and accordingly, the respondent no.1 could not have exercised his so called right of pre-emption under Section 22 of

Hindu Succession Act, 1956. This aspect of the matter has not been considered by the lower court as well as the lower appellate court and

accordingly, the impugned orders are perverse and are hereby set-aside.Â

8. Considering the facts and circumstances of this case, the impugned order dated 17.08.2007 (Annexure-3) passed by Court of District Judge,

Palamau, at Daltonganj in Misc. Appeal No.7/2006, and the impugned order dated 15.02.2003 (Annexure-1) passed by the Court of Sub-Ordinate

Judge, Daltonganj, Palamau in Misc. Case No.8/2000 allowing the application for pre-emption under Section 22 of the Hindu Succession Act, 1956 are

hereby set-aside and the writ petition is allowed.    Â