1. The remand of a suit brought by respondent 1 for enforcement of his right under S. 22(1) of the Hindu Succession Act with prayer for permanent injunction in respect of transfer of the suit property in favour of respondent 2 or to any other person and for a mandatory injunction against the appellant to execute a registered sale deed in respect of ‘A’ schedule land of the plaint at a price to be fixed by the court and for ancillary and consequential reliefs has goaded the defendant 1 appellant to prefer this appeal. Admittedly, respondent 1 and the appellant are brothers being the sons of one Giridhari. It was the case of the respondent 1 that the suit property consisting of Residential house and a back courtyard was the joint family dwelling house of both parties and that after the death of their father both the parties though had amicably partitioned the property by a registered deed of partition on 20th January, 1970, yet no demarcation had been put to indicate the partition by metes and bounds. The municpal holding had also not been bifurcated and taxes and rent were being paid jointly he appellant had executed an agreement with the respondent No. 2-defendant No. 2 to sell away the property to her. The respondent No. 1 served a notice on the appellant to cause the transfer in his favour but the request having not been complied with, the suit was instituted. During the pendency of the suit, one of the sisters, impleaded as defendant No. 3, took the stand of also having a right to purchase the interest in the suit property from the appellant being herself a class-I heir of the common ancestor and further pleaded that the suit land had not been partitioned between the appellant and the respondent No. 1 and that even if there was such a partition, it was without her knowledge and she is not bound by it. The suit was contested by the appellant and respondent No. 2 jointly filing written statement on various grounds of the suit as not maintainable; that since it was the very case of respondent No. 1, that after the death of Giridhari there was a partition between the two brothers, a suit under Section 22(1) did not lie; and that the property being the absolute property of Tara Bewa, the widow of Niladri Chhatoi brother of Giridhari, the appellant and respondent No. 1 both inherited the property as the sons of her husband's brother but not as Class-I heirs of Tara Bewa, for which Section 22 of the Hindu Succession Act had no application. The suit was dismissed by the Munsif against which two appeals were carried before the Additional District Judge, Cuttack being Title Appeal No. 76/80 at the instance of respondent 1 and Title Appeal No. 77/80 at the instance of respondent 3. Both the appeals were disposed of by a common judgment on 20-3-82 allowing the same holding that the entire homestead was held by Giridhari and Taramani as tenants in common living together and that Taramani having predeceased Giridhari who was alive in 1960, Giridhari succeeded to the property of Taramani and became the sole owner and only after the death of Giridhari, his sons, the appellant and respondent 1, succeeded to the property as co-heirs. He thus negatived the case of the appellant that the property had devolved upon the appellant and respondent 1 as heirs of Taramani. It was further held by him that even though there was a partition between the appellant and respondent 1, yet the partition had not taken any notice of the mother Indumati, widow of Giridhari, as also of the two sisters Padma and defendant 3-respondent 3 and hence there was no complete partition and the property continued to be undivided and joint held as tenants in common and each of the co-heirs were entitled to a preferential right to purchase the interest of others. He thus found the claim under Section 22 of the Respondents 1 and 3 to be well founded and remanded the case to the lower court for determining the fair value of the interest of the appellant and to dispose of the application under S. 22 of the Hindu Succession Act. After remand, the matter was disposed of afresh by the learned Munsif calculating the share of the appellant as Ac. 0.050-2/3 decimals fixing the valuation thereof at Rs. 12,000/-. The judgment was challenged by both the appellant and respondent No. 1 respectively in Title Appeal Nos. 102 and 103 of 1982. The learned Additional Subordinate Judge disposed of the appeals holding the suit as maintainable and determining the share of the appellant as Ac. 0.028½ decimals and remanding the matter for fresh disposal by the trial court and to determine the market price of the share of the appellant. The present appeal is directed against such decision and a Cross Appeal has also been filed by respondent 1 challenging the determination of the share of the appellant as Ac. 0.028½ decimals.
2. Mr. R.N Mohapatra, learned counsel for the appellant, has mooted two questions in assailing the judgment, the first one being that the institution of a regular suit for exercise of right under S. 22 of the Hindu Succession Act (hereinafter referred to as ‘the Act’) is misconceived and that only a Miscellaneous Judicial Case should have been filed and that since it was the very case of respondent No. 1 that after the demise of Giridhari there was a partition between the two brothers, the petition under S. 22 of the Act did not lie.
3. Both the submissions made are not well-founded. The respondent had brought the suit not for determination of the consideration payable in respect of any interest in the property of Giridhari proposed to be transferred by the appellant but for very many reliefs including declaration of his preferential right to purchase the share of the appellant; for permanent injunction against the appellant prohibiting him from transferring the property to respondent No. 2 or nay other person as also for a mandatory injunction directing the appellant for execution of sale deed at a price to be determined by the court. Section 22(1) of the Act confers a right of pre-emption on class-I co-heirs who succeed to the immovable property or interest in a business of an intestate, while Section 22(2) is a provision to be invoked by the parties only when there is an admitted right of pre-emption and the parties have failed to reach an agreement regarding the price of the property. Thus, the scope of Section 22(1) and that of Section 22(2) are independent of each other. Section 22(1) confers a civil right on the class-I co-heirs and in the absence of any procedure devised under the Act, the right is enforceable through the courts of common law. The civil court would thus have the jurisdiction to determine and declare such rights by way of a regular suit. The right is not available to be decided by the court merely on a miscellaneous application made to it. The question was also dealt with by Hon'ble Justice Shri R.C Patnaik in (1985) 59 Cut LT 376 : (AIR 1986 Orissa 119) Murlidhar Das v. Bansidhar Das wherein it was concluded that a party armed with a substantive right under Section 22(1) may seek his remedy in the civil court of competent jurisdiction under the provisions of the Civil Procedure Code and those of the Specific Relief Act and that he may move the court for realisation of his preferential right in the case where the other co-sharers are proposing to transfer or where transfer has already been made in favour of strangers. The same view was also taken in AIR 1976 Ker 19 Valliyil Sreedevi Amma v. Subhadra Devi, AIR 1980 Cal 53; Tarak Das Ghosh v. Sunil Kumar Ghosh and (1970) 1 Mad LJ 358 Nagammal v. Nanjammal. Thus, the first submission made by Mr. Mohapatra must fail.
4. So far as the second submission is concerned, even though I am inclined to agree with the submission, as a legal proposition, that the right under S. 22(1) is not available to be exercised after partition between the co-heirs since partition clothes the respective parties with authority to hold their shares independently and absolutely as their separate properties and that it could not be the intention of the legislature to put a clog on the power of alienation of independent owners of properties, yet factually the submission does not appeal to be of substance. It is true that the very plaint case of respondent 1 is that there has been a partition between him and the appellant on 20th Jan. 1970 by a registered deed, but as has been found by the learned Additional Subordinate Judge on both the occasions when the matter was in appeal, there was no complete partition between the parties and that admittedly some of the heirs of Giridhari, i.e the widow Indumati and his two daughters, Padma and Rajani (respondent 3) were not parties to the same. Hence, the partition was not a complete one so as to effectively stamp out the right under S. 22(1) of the Act. Preferential right is not confined only to the two brothers but is also available to the other class-I heirs.
5. In the result, both the contentions raised by Mr. Mohapatra fail. No other submission has been raised by him and hence the appeal must accordingly fail.
6. So far as the Cross Appeal by respondent No. 1 as against determination of the share of the appellant in the property is concerned, I also do not find any merit in the same. Mr. Mohanty has strenuously contended that the agreement between the appellant and respondent 2 bring for sale of 73 decimals 8 kadis of land and it having never been the case of the appellant that his share was not to such extent, the right of repurchase should have been allowed to that extent and not confined to Ac. 0.028½ decimals. Section 22(1) confers a right of preferential purchase on the co-heirs only in respect of the interest of any particular co-heir who proposes to transfer it. The right does not extend beyond the interest of the selling co-heir. The learned Additional subordinate Judge has found the extent of the property devolving upon the co-heirs on the death of Giridhari to be 114 decimals and he determined the share of the appellant as Ac. 0.028½ decimals since in her deposition, the mother Indumati declined to claim any interest. If the share of Indumati is taken into consideration, the extent of interest of the appellant would be still less. The right of the co-heir for re-purchase being confined only to the share of the intending seller, it must be held that the jurisdiction of the court to declare and implement such right is confined only to that extent and would not extend to more property and if a party purports to sell anything more, then the compulsion under the law to sell the same to one of the co-heirs cannot be enforced against him so far as the excess is concerned since it would amount to a judicial sanction of something which might be otherwise unauthorised. In that view of the matter, there is no infirmity in the finding of the learned Additional Subordinate Judge and hence the Cross Appeal also fails.
7. In the result, both the appeal and the cross appeal are dismissed, but in the circumstance there shall be no order as to costs.
Appeal and cross appeal dismissed.
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