Section 22 of the Hindu Succession Act, 1956 – A Jurisprudential Analysis of the Statutory Preferential Right of Class I Heirs

Section 22 of the Hindu Succession Act, 1956 – A Jurisprudential Analysis of the Statutory Preferential Right of Class I Heirs

1. Introduction

Section 22 of the Hindu Succession Act, 1956 (“HSA”) embodies a statutory right of pre-emption in favour of Class I heirs when one such heir proposes to alienate his or her undivided interest in intestate property or business. Conceived to prevent fragmentation of the family estate and the ingress of strangers, the provision continues to generate interpretative debate regarding its scope, applicability, procedural mechanics and relationship with other property‐law doctrines. Recent judicial pronouncements – most notably Babu Ram v. Santokh Singh (2019) – have further refined the contours of the right, while ancillary case-law on allied questions (privacy in property litigation, testamentary formalities, etc.) illuminates its broader doctrinal setting. The present article offers a critical appraisal of §22, weaving together statutory text, historical evolution and significant judicial decisions.

2. Statutory Framework

“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 … the other heirs shall have a preferential right to acquire the interest proposed to be transferred. …
(2) The consideration … shall, in the absence of any agreement between the parties, be determined by the court …
(3) If there are two or more heirs … that heir who offers the highest consideration … shall be preferred.
Explanation.—‘Court’ means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on …”[1]

2.1 Placement within the Act

Section 22 is located in Chapter II (Intestate Succession). Its coexistence with:

  • Section 4 – the overriding clause that abrogates inconsistent customs and laws;
  • Sections 8-13 – rules governing devolution of a male Hindu’s estate;
  • Section 23 (special provision respecting dwelling-houses, now repealed by Act 39 of 2005); and
  • Section 30 (testamentary succession),

underscores its limited but significant role post-devolution. It is triggered only after Class I heirs have already succeeded to the estate; it neither alters inheritable shares nor overrides testamentary dispositions (N. Kamalam v. Ayyasamy, 2001)[2].

3. Early Judicial Exegesis

3.1 Laxmi Debi and the Agricultural-Land Controversy

The first reported interpretation was Laxmi Debi v. Surendra Kumar Panda (1957 Orissa). Rejecting reliance on the Federal Court’s 1941 ruling concerning the Hindu Women’s Rights to Property Act, the High Court held that §22 applies to agricultural land as well, reading the Act’s secular reach in light of §4(1) HSA[3].

3.2 Preferential Right as a Statutory Incident

Madras High Court’s decision in Nagammal v. Nanjammal (1969) characterised §22 as conferring both a primary right (an obligation on the transferor-heir to make an offer) and a secondary remedial right (to displace a stranger purchaser). The Court analogised the provision to pre-emption doctrines while emphasising its statutory origin, thereby repudiating any notion of “weakness” traditionally associated with equitable pre-emption[4].

3.3 Partial Partition & Dwelling-House Interface

Subsequent decisions explored the relationship between §22 and §23 (dwelling-houses). In Venkatalakshmamma v. Lingamma (1984 Karnataka) the Court held that a sale violating §22(1) could be ignored when computing shares in a partition suit, although the decision left open the enforceability of §22 to agricultural holdings. Conversely, Arun Kumar Sanyal v. Jnanendra Nath Sanyal (1975 Calcutta) treated transferee-rights under §23 as a bar to partition when the executor was a transferee from female heirs, illustrating the doctrinal complexity when multiple special provisions intersect.

4. Supreme Court Consolidation – Babu Ram v. Santokh Singh (2019)

The 2019 judgment finally settled the agricultural-land controversy, holding that the preferential right “is applicable even if the property is agricultural land”[5]. Justice A. M. Sapre’s opinion anchored the ruling on the following rationales:

  • §22 is “part of the same concept” as succession; since the Act confers the right, it may legitimately circumscribe its alienation.
  • The objective is to preserve family property – a legislative policy discernible from exceptions to survivorship under §6.
  • High Court decisions to the contrary were expressly overruled, producing uniformity nationwide.

4.1 Consequential Observations

The Court also clarified that the definition of “court” in the Explanation is purely territorial, ensuring that valuation disputes under §22(2) are tried where the property is situate – a point earlier emphasised in P. Srinivasamurthy v. P. Leelavathy (2000 Madras HC) when determining competence of the Munsif’s Court.

5. Timing, Procedure and Limitation

5.1 Proposal v. Completed Sale

A recurring dilemma is whether §22 may be invoked after completion of an alienation. High Courts initially diverged:

  • Valliyil Sreedevi Amma v. Subhadra Devi (1976 Kerala) – application under §22(2) not maintainable after sale; remedy lies in a civil suit.
  • Bhaskar Chandra Barik and Muralidhar Das (Orissa) – similar view.

However, in Smt Kamala Kumari Bohara v. Harekrishna Ghadei (1998 Orissa) the Court enforced a re-purchase claim within a declaratory suit despite a concluded sale, reasoning that the wider language of §22 supersedes the narrower protection under §4 of the Partition Act[6]. More recently, Madan Lal v. Braham Dass (2008 HP)[7] endorsed the Kerala view, underscoring continued disharmony.

5.2 Mode of Enforcement – Suit or Application?

Section 22(2) contemplates an “application” for valuation when heirs differ on consideration; yet the statute is silent on the initial enforcement mechanism. Decisions are split:

  • Kamal Goel v. Purshotam Dass (1999 P&H) – appeal from decree under §22 is not maintainable, treating the original proceeding as sui generis (quasi-scheme).
  • Ganesh Chandra Pradhan v. Rukmani Mohanty (1970 Orissa) – application by minor co-heir entertained directly by the Munsif.
  • Madan Lal – insists on civil suit when the conveyance is complete.

The absence of Supreme Court resolution perpetuates procedural uncertainty, often prompting litigants to plead §22 as an alternate prayer in ordinary civil actions – as witnessed in Ashutosh Chaturvedi v. Prano Devi (2008 SC), where amendment was sought thirteen years post-sale but rejected as time-barred under Art. 97 Limitation Act (one-year period for pre-emption).

5.3 Limitation

Article 97 prescribes one year from the registration of the sale deed. The Supreme Court’s dictum in Ashutosh Chaturvedi affirms its applicability to §22 actions, reinforcing the need for prompt assertion of the right. Delay, even if suit-based, extinguishes the statutory preference.

6. Determination of Consideration & Inter-Se Preference

Where heirs disagree on price, §22(2) mandates judicial valuation; refusal to purchase at that valuation attracts liability for costs. In practice, courts adopt market-value benchmarks, occasionally commissioning expert evidence (e.g., P. Srinivasamurthy). Sub-section (3) introduces competitive bidding among multiple heirs, selecting the highest offer – a mechanism rarely litigated but doctrinally significant for aligning statutory preference with economic fairness.

7. Intersections with Other Legal Doctrines

7.1 Testamentary Succession and Validity of Wills

The rigid attestation requirements restated in N. Kamalam (2001 SC) showcase the contrasting approach when property devolves testamentarily. Absence of valid attestation can invalidate the will, thrusting the estate into intestacy and thereby activating §22 rights. Rigorous compliance, therefore, directly impacts the incidence of §22.

7.2 Privacy Concerns in Family Property Litigation

Although unrelated to §22 per se, the Supreme Court’s privacy jurisprudence in Ashok Kumar v. Raj Gupta (2022) emphasises proportionality when compelling intrusive evidence in property disputes. Where a co-heir resists DNA testing to prove legitimacy, the Court prioritised privacy unless eminent need is demonstrated. By extension, enforcement of §22 must also respect fundamental rights – for instance, discovery of personal correspondence or bank records to ascertain consideration must observe the proportionality principle articulated in K.S. Puttaswamy.

7.3 Repeal of Section 23 and Its Implications

The 2005 Amendment omitted §23, eliminating the bar on partition of the family dwelling-house by female heirs. Consequently, alienations of undivided shares in such houses will more frequently fall within §22, enlarging its practical relevance.

8. Critique and Reform Prospects

While §22 serves the salutary objective of preserving family property, several issues merit legislative or judicial clarification:

  • Uniform Procedure: Explicit provision should indicate whether a summary application suffices or a regular suit is obligatory upon concluded sale. Divergence across High Courts breeds unpredictability.
  • Notice Mechanism: Statute may mandate formal notice by the proposing heir, akin to company-law pre-emptive offers, avoiding post-sale disputes.
  • Limitation Harmonisation: Article 97’s one-year period is arguably too short given rural realities; a balanced extension could be considered.
  • Valuation Guidelines: Incorporating objective parameters (circle rate, registered valuer reports) would reduce satellite litigation under §22(2).

9. Conclusion

Section 22 stands at the confluence of traditional Hindu conceptions of joint family solidarity and modern statutory succession. Judicial interpretation has largely vindicated the legislative intent – most conspicuously by extending the right to agricultural lands and affirming its supremacy over contrary custom. Nevertheless, procedural ambiguities linger, resulting in forum shopping and limitation pitfalls. A measured recalibration – through either Supreme Court authoritative pronouncement or parliamentary amendment – will enhance certainty, thereby enabling the provision to function as an efficient, equitable tool for intra-family property management in contemporary India.

Footnotes

  1. Hindu Succession Act, 1956, §22.
  2. N. Kamalam (Dead) v. Ayyasamy, (2001) 7 SCC 503.
  3. Laxmi Debi v. Surendra Kumar Panda, AIR 1957 Ori 1.
  4. Nagammal v. Nanjammal, 1970 (1) MLJ 358 (Madras HC).
  5. Babu Ram v. Santokh Singh, (2019) 11 SCC 616.
  6. Smt Kamala Kumari Bohara v. Harekrishna Ghadei, 1998 SCC OnLine Ori 2.
  7. Madan Lal v. Braham Dass, 2008 SCC OnLine HP 280.
  8. Ashutosh Chaturvedi v. Prano Devi, (2008) 15 SCC 610.
  9. Ashok Kumar v. Raj Gupta, 2021 INSC 587.
  10. P. Srinivasamurthy v. P. Leelavathy, 2000 SCC OnLine Mad 351.
  11. Venkatalakshmamma v. Lingamma, 1984 SCC OnLine Kar 171.
  12. Kamal Goel v. Purshotam Dass, AIR 1999 P&H 254.