A.K. Shrivastava, J.
1. This appeal under Section 96 CPC has been filed by appellants who are the legal representatives of original plaintiff Jagannath Prasad Gupta, against the judgment and decree dated 20-7-1995 passed by learned 4th Additional District Judge, Sagar in Civil Suit No. 1-A/90.
2. The pedigree of plaintiff as pleaded in Para 1 of the plaint is as under:
Baijnath Prasad Gupta died on 24-2-1965___________________________________|______________________________| | | |Ladli Bahu Jagannath Prasad Shambhu Nath Virendranath(wife died son (plaintiff) died died in the year defendantin the year during the pendency 1974 No. 11976 of the suit.Appellants are hisL.Rs.
3. The suit has been filed for declaration that the registered sale-deed dated 20-11-1986 which is the half portion of yellow, red, green and without colour shown in the plaint map and which has been sold by defendant No. 1 to defendants 2 and 3 is illegal and ineffective with a further relief that defendants be restrained from interfering with the possession of the plaintiff and plaintiff may not be dispossessed. In the alternative it has also been prayed that in case defendant No. 1 is found to be the owner of half portion of the suit house, it be sold to the plaintiff for a consideration of Rs. 1,25,000/- after deducting Rs. 1,00,000/- as this amount was incurred by the plaintiff in reconstruction of the house as the same was ablaze in the riots of 1984 on account of assassination of Smt. Indira Gandhi and thus it has been prayed that defendant No. 1 be directed to obtain Rs. 25,000/- towards consideration and the sale-deed be affected in favour of plaintiff since he (defendant No. 1) sold the suit property for a consideration of Rs. 1,25,000/- to defendants 2 and 3.
4. Certain admitted facts which borne out from the record are as under:
(i) On 8-5-1961 vide Ex.P-21 registered partition took place between Baijnath Prasad and his sons including plaintiff and defendant 1 and also Ladli Bahu, wife of Baijnath Prasad;
(ii) the property was owned by one Baijnath Prasad, who died on 24-2-1965;
(iii) the present dispute is in regard to dwelling house only, in which according to the plaint averments and the plaint map, portion shown in yellow colour came in the share of father Baijnath;
(iv) red portion shown in the plaint map fell in the share of Ladli Bahu, wife of Baijnath Prasad;
(v) green portion shown in the plaint map fell in the share of Shambhunath, son of Baijnath Prasad;
(vi) blue portion shown in the plaint map fell in the share of Virendranath (Defendant No. 1), who is son of Baijnath Prasad;
(vii) Shambhunath died unmarried in the year 1974; and
(viii) Ladli Bahu, wife of Baijnath Prasad died in the year 1978.
On the basis of the pleadings made in the plaint it has been submitted by learned senior counsel Shri M.L. Jaiswal that since Shambhunath, son of Baijnath Prasad Gupta died unmarried, therefore, Ladli Bahu being mother of unmarried son Shambhunath will inherit the property as she being the only heir of Class I to Section 8 of Hindu Succession Act, 1956 (in short 'the Act'). After the death of Ladli Bahu in the year 1978, the portion of Shambhunath which was inherited by her (Ladli Bahu) would be divided equally and would go to defendant No. 1 Virendranath and plaintiff Jagannath Prasad.
5. Baijnath Prasad died on 24-2-1965 and, therefore, yellow portion which he got in the partition in the disputed dwelling house would be inherited by Ladli Bahu being widow, Virendranath (defendant No. 1), Jagannath Prasad (plaintiff) and Shambhunath being sons equally and thus portion of Baijnath Prasad (yellow portion) devolved in these four heirs and each of them became owner of Vith share. The defendant No. 1 Virendranath sold his portion along with the other portion which he inherited in the suit house to defendants 2 and 3 vide registered sale-deed dated 20-11-1986 (Ex. D-l) for a consideration of Rs. 1,25,000/-.
6. According to the plaintiff he is residing in the entire suit house and is paying Municipal Tax, Property Tax etc. The portion which fell in the share of defendant No. 1 Virendranath in that portion tenants were inducted by plaintiff in the capacity of landlord and he was also realising the rent from the tenants. It is the further case of plaintiff that the portion fell in the share of defendant No. 1 was ablaze in the riots of 1984 on account of assassination of Smt. Indira Gandhi and said portion was reconstructed by plaintiff from his own funds and he incurred Rs. 1,00,000/- to reconstruct the gutted property which fell in the share of defendant No. 1 Virendranath.
7. It is the further case of plaintiff that in the registered partition deed dated 8-5-1961 (Ex.P-21) a condition has been stipulated that if in future any portion is required to be sold, parties to the partition deed shall consult with each other and if they are ready, the said property shall be sold to them and they shall have right to purchase the property of other members of the family.
8. According to the plaintiff, secretly and without informing and offering to sell the disputed property to plaintiff, defendant No. 1 Virendranath sold the disputed property vide registered sale-deed dated 20-11-1986 to defendants 2 and 3 and the action of defendant No. 1 Virendranath is dehors to the condition embodied in registered partition deed dated 8-5-1961 (Ex.P-21). It has been specifically pleaded in the plaint that earlier also plaintiff was ready and willing to purchase the share of defendant No. 1 Virendranath and even on the date of filing of the suit he was ready to purchase the said portion. The plaintiff has also set-up the plea of adverse possession but no relief in that regard has been sought in the plaint.
9. A joint written statement was filed by defendant No. 3 and defendant No. 2(a), (d), (e) (ka) and (kha) who are LRs. of defendant No. 2 Narmada Prasad Yadav, who died during the pendency of the suit. In the written statement a counter claim was claimed by these defendants that portion which they have purchased from defendant No. 1 Virendranath, be got partitioned and separate possession be delivered to them and mesne profits at the rate of Rs. 1,000/- per month be also decreed in their favour w.e.f. 1-1-1990 to 31-12-1990 which comes to Rs. 12,000/-.
10. Defendant No. 1 Virendranath filed separate written statement.
11. Plaintiff filed written statement to the counter claim and denied the averments.
12. Learned trial Court framed necessary issues which are mentioned in Para 7 of the impugned judgment and dismissed the suit by holding as under:
(i) by virtue of registered partition deed dated 8-5-1961 the property fell in the share of Baijnath Prasad, Ladli Bahu and Shambhunath (who died unmarried), on account of their death their property was inherited by plaintiff Jagannath Prasad and defendant No. 1 Virendranath;
(ii) plaintiff Jagannath Prasad did not acquire share by way of adverse possession in the suit property;
(iii) eastern portion of the house was ablaze in the riots of 1984 on account of assassination of Smt. Indira Gandhi and plaintiff incurred Rs. 30,000-40,000/- to reconstruct the said portion;
(iv) plaintiff Jagannath Prasad was never willing to purchase the suit property and claiming right of pre-emption under Section 22 of the Act;
(v) under Section 22 of the Act plaintiff is not entitled to get the suit property sold to him from defendant No. 1 after paying Rs. 25,000/- and deducting Rs. 1,00,000/-;
(vi) defendant No. 1 legally and validly sold the suit property on 20-11-1986 to defendants 2 and 3;
(vii) plaintiff is not entitled to get sale deed dated 20-11-1986 to be declared as illegal and ineffective;
(viii) defendants are not trying to take possession illegally from plaintiffs;
(ix) plaintiffs are not entitled for the decree of injunction;
(x) defendant No. 3 and the LRs. of defendant No. 2 are entitled to take possession after getting the red portion partitioned equally;
(xi) defendant No. 3 and LRs. of defendant No. 2 are entitled to obtain mesne profits at the rate of Rs. 455/- per month;
(xii) there is no defect of misjoinder of cause of action and parties;
(xiii) the counter claim is maintainable; and
(xiv) suit of plaintiff was dismissed and the counter claim was allowed.
13. In this case Shri Jaiswal, learned senior counsel has submitted that there is no factual dispute on material prepositions. The question that hinges is whether the plaintiff has right of pre-emption in the suit property which fell in the share of defendant No. 1 Virendranath as envisaged under Section 22 of the Act and if this Court comes to the conclusion that plaintiff was having right under Section 22 of the Act, then sale deed dated 20-11-1986 (Ex.D-4) executed by defendant No. 1 in favour of defendants 2 and 3 is ineffective and illegal. It has also been put-forth by learned senior counsel that defendant No. 1 Virendranath was duty bound to offer the alienation to the plaintiff in accordance to Section 22(1) of the Act as well as on account of condition stipulated in the registered partition deed dated 8-5-1961 (Ex.P-21). In support of his contention, learned senior counsel has placed reliance on B. Rajamma v. S. Ananthakrishnan Potti : AIR1991Ker272 , Santosh Kr. Mitra v. Kalipada Das and Ors. : AIR1981Cal278 , P. Srinivasamurthy v. P. Leelavathi : AIR2000Mad516 , Bharatsingh v. Rishi Kumar and Ors. : AIR1977MP40 , Nirupoma Basak v. Baidyanath Pramanick : AIR1985Cal406 and Ghantesher Ghosh v. Madan Mohan Ghosh and Ors. : AIR1997SC471 .
14. By placing reliance on the decision of the Madras High Court P. Srinivasamurthy v. P. Leelavathi : AIR2000Mad516 it has been argued by learned senior counsel that there is overwhelming material on record in order to show that plaintiff was willing to purchase the suit property and since he is having preferential right under Section 22 of the Act, suit ought to have been decreed.
15. On the other hand, Shri Atulanand Awasthy, learned Counsel appearing for the respondents argued in support of the impugned judgment and by placing reliance on the Single Bench decision of this Court Ghewarwala Jain v. Hanuman Prasad and Anr. AIR 1981 Madhya Pradesh 250 has submitted that since disputed property has already been sold by defendant No. 1 in favour of defendants 2 and 3 prior to the filing of the suit, therefore, Section 22 of the Act has no application in the present factual scenario because it relates to acquiring interest proposed to be transferred.
16. Having heard learned Counsel for the parties, I am of the view that this appeal deserves to be allowed.
17. On going through the provisions of Section 22 of the Act it is gathered that this provision has been enacted in the said Act to keep out strangers coming into the heirs of Class I of the Schedule after coming into force of the Act. On going through this provision it is also luminously clear that the alienation of his interest by a co-heir in violation of Section 22(1) is not void, but is voidable at the instance of other non-alienating co-heirs. In this regard I may profitably rely Division Bench decision of the Kerala High Court Valliyil Sreedevi Amma v. Subhadra Devi and Ors. : AIR1976Ker19 wherein it has been held that if a co-heir transferring his interest in violation of Section 22(1), the remedy of other co-heirs to acquire transferred interest is by way of suit and such suit is maintainable and the transfer made by co-heir of his share is voidable and not void. Thus the transfer made by defendant No. 1, who is a co-heir is voidable and the suit can be brought at the instance of other co-heirs challenging the alienation to a stranger since it is a voidable transaction. I may further add that it is the sale against the right of co-heirs that would constitute an infringement of the right conferred under Section 22(1) of the Act. In other words, the cause of action is a sale to a third party without reference to the other co-heirs who might have purchased the property for the proper price, if it had been offered to them.
18. On bare perusal of Section 22 it is as clear like a noon day that preferential right has been accrued to a co-heir to purchase the share of alienating co-heir, and I am of the view that the burden of proof of waiver of such right is upon the purchaser to establish that other co-heir has waived his preferential right. Thus where one of the coheirs transfers his interest in a immovable property in violation of Section 22(1) of the Act the remedy of other co-heir to enforce his preferential right under the said provision is by way of filing regular civil suit.
19. Looking to the scheme of this section it appears to have been thought necessary as an antidote to the inconvenient effects sometimes resulting from transfer to an outsider by a co-heir by his or her interest in the property simultaneously inherited along with other co-heirs.
20. It is also clear on the bare perusal of this section that it does not apply where the property devolves by survivorship and the scope of this provision is restricted and applicable to the cases of inheritance only. It is also clear on bare perusal of this section that in case of a proposed transfer an application could be filed and where the alienation is concluded regular suit should be filed.
21. The effect of this section may be thus summarized:
(1) In case any heir specified in class I of the Schedule desires to dispose of his interest in the property (immovable property or interest in a business) inherited by him simultaneously with any other heir or heirs of an intestate under the provisions of the Act the latter have a preferential right to acquire that interest by purchase.
(2) If the parties are unable to agree as to the quantum of consideration payable by the heir or heirs who intend to exercise the right conferred by Sub-section (1) the price will be determined by the Court in an application made for the purpose. The intending purchaser is not, however, bound to pay the price fixed by the Court. If he does not choose to pay the same, he will only be liable to pay costs of the application.
(3) In case of two or more heirs seeking to exercise the right conferred by Sub-section (1) that heir who offers the highest consideration must be preferred and allowed to acquire the interest.
(See commentary on Mulla Principles of Hindu Law Volume II Pages 361 and 362 17th edition)
22. In the present case plaintiff Jagannath Prasad and defendant No. 1 Virendranath being heirs of Class I of Baijnath Prasad, therefore the disputed property which has been sold by defendant No. 1 Virendranath in favour of defendants 2 and 3, on that property plaintiff Jagannath Prasad is having preferential right to purchase the same, on account of right accrued to him under Section 22 which is his preferential right to acquire the property and also right accrued to him vide registered partition deed dated 8-5-1961 (Ex. P-21). Similarly vis-a-vis respondent No. 1 Virendranath was obliged and duty bound to offer his desire to alienate his share in the suit property under the law as well as on account of the condition embodied in the partition deed dated 8-5-1961 (Ex. P-21) and if the plaintiff would not have accepted the offer, then only the disputed property could have been sold by defendant No. 1 to defendants 2 and 3.
23. Defendant No. 1 in his written statement admitted the due execution of registered partition deed dated 8-5-1961 (Ex. P-21).
24. There is specific pleading of the plaintiff in the consolidated plaint after amendment was incorporated that defendant No. 1 never expressed his desire to alienate the suit property to him prior to selling the said disputed property to defendants 2 and 3 nor plaintiff became annoyed on defendant by saying that he will see how defendant No. 1 sells his half portion of the dwelling house. True, there is averment of defendant No. 1 in that regard in his written statement which he pleaded by way of amendment but nowhere it is gathered that there is any pleading of the defendant No. 1 that on which date he expressed his such desire to the plaintiff and when he became annoyed. The defendant No. 1 has not even stated the month or the year when he expressed his such desire.
25. At this juncture this Court would like to marshal the evidence of plaintiff and defendant No. 1 in this regard. Unfortunately, plaintiff Jagannath Prasad Gupta, before he could be examined as a witness, breathed his last, as such Smt. Premlata Agrawal as one of the legal representatives was examined as PW-10. In para 9 this witness has specifically stated that defendant neither expressed his desire to sell his share to his father nor sent any notice in writing in that regard. She specifically denied that his father Jagannath Prasad Gupta ever gave any threat to defendant No. 1 that he will see how he (defendant No. 1) could sell his share in the dwelling house. This witness has further stated that still plaintiffs are willing to purchase the suit property. In para 11 she has stated that after purchasing the suit property, defendant No. 2 came to their house and not only scolded on them but also gave threat to vacate the house. Earlier to it they were not even aware that the property has been sold to defendants 2 and 3. It has also come in her evidence that original plaintiff Jagannath Prasad Gupta was throughout residing in the suit house till he died. There appears to be no effective cross-examination on the statement of Smt. Premlata who is one of the L. Rs. of the plaintiff and, therefore, the statement made by her remained uncrossed and as such her evidence is having higher credential value. It is well settled in law that statement made in examination in chief, if not cross-examined, the statement on that point would stand unchallenged. Again in cross-examination in para 17 Smt. Premlata has stated that before selling the disputed house by defendant No. 1, plaintiff was not asked.
26. When defendant No. 1 Virendranath Agrawal appeared as DW-3 he has stated in para 3 of his examination in chief that before alienating his share to defendants 2 and 3 he sent oral notice to the plaintiff, but through whom the said oral notice was sent he has not at all stated in his examination in chief though in the cross-examination in para 15 he has stated that in the year 1986 defendant No. 2 Narmada Prasad came to him at Bhopal and inquired whether he (defendant No. 1) is selling his share, on that he (defendant No. 1) replied that first of all he will ask his brother plaintiff Jagannath Prasad and thereafter only he could say something. In this para during the course of cross-examination it has been stated by Virendranath Agrawal (defendant No. 1) that he sent his desire to the plaintiff and offered him to purchase the suit property through one Maulana Abdul Hakeem who is residing at Sehore and is alive. But said Maulana Abdul Hakeem has not been examined. It has been further said by defendant No. 1, in para 15 of his testimony that he did not send any written notice because he was not keeping good relations with plaintiff Jagannath Prasad and there was quarrel between them. The view of this Court is that if oral notice was sent by defendant No. 1 to the plaintiff through Maulana Abdul Hakeem, defendant No. 1 ought to have examined this person in order to corroborate his stand and evidence. It is also clear from his statement that because he was not having cordial relations with plaintiff, therefore, he did not send any notice in writing. Since this has been admitted by this witness that he was not having good relations with plaintiff, therefore, the possibility cannot be ruled out that he did not want to sell his share to the plaintiff.
27. One important fact which cannot be marginalized and blinked away is that the suit property was sold by defendant No. 1 Virendranath Agrawal on 20-11-1986 vide registered sale deed Ex. D/4 to defendants 2 and 3 and soon thereafter, within 17 days, the suit was filed by plaintiff on 9-12-1986 which would indicate and one can infer that plaintiff Jagannath Prasad was willing to purchase the share of defendant No. 1. After the death of plaintiff Jagannath Prasad, his heirs are also saying that they are willing to purchase the suit property.
28. I am not dealing the case laws cited by Shri Jaiswal, learned senior counsel appearing for the appellants except the decision of the Madras High Court P. Srinivasamurthy : AIR2000Mad516 (supra), because all those decisions pertain to Section 4 of the Indian Partition Act which is having different connotation, ambit and scope and it has nothing to do with Section 22 of the Act. However, the decision of P. Srinivasamurthy (supra) is applicable in the present case in which it has been held that co-heir is having preferential right to purchase the property of another co-heir as he is having such right under Section 22 of the Act. The Madras High Court in the said decision held that since there is no material showing that other coheirs before finalising sate of suit property had taken into consideration of option, therefore, plaintiff could bring the suit against the co-heirs for setting aside alienation. The Division Bench of Madras High Court ultimately allowed the appeal of the plaintiff and set aside the order of learned single Judge holding that the suit was not maintainable. The decision of this court Ghewarwala Jain : AIR1981MP250 (supra) was also distinguished. I have also taken into consideration the said decision of Ghewarwala Jain (supra). However, I am of the view that the said decision is not applicable in the present factual scenario. In that case the co-heir sold the shop on 17-4-1975 by registered sale deed in favour of one Hanuman Prasad. After the property was sold an application was filed under Section 22 of the Act before the Additional District Judge. The said application 2 was opposed by the opposite party on the ground that the application is not maintainable under Section 22(2) of the Act. The Additional District Judge framed certain issues and Issues No. 4, 5 and 7 were in regard to the competency of the District Judge to hear the application and whether the application has been properly valued. These two points were tried as preliminary issues and the Court below found the application to be not maintainable and directed to convert the application into a suit and further directed to pay ad valorem Court-fees. In the revision it was argued that application under Section 22(2) was maintainable and the order of Additional District Judge directing to pay ad valorem Court-fees is without jurisdiction and in that context it was held by this Court that after the property was sold and the transfer was concluded application under Section 22(2) of the Act would not lie and the Additional District Judge rightly allowed the application to convert the application in a suit. Thus the decision f Ghewarwala Jain (supra) is not applicable in the present case.
29. On bare perusal of the impugned judgment (paras 34 to 37) it is gathered that in a very casual manner in para 36 issues No. 4 (a) and 4 (b) which pertain to the right accrued to the plaintiff under Section 22 of the Act have been decided against the plaintiff by placing reliance on the decision of Ghewarwala Jain (supra). I have already held hereinabove that the said decision is not applicable in the present case and nowhere in the said decision it has been held that if a suit is filed enforcing the right tinder Section 22 of the Act, the same is not maintainable.
30. For the reasons stated hereinabove, this appeal succeeds and is hereby allowed and by setting aside the impugned judgment and decree passed by the trial Court it is hereby declared that the sale deed dated 20-11-1986 (Ex. D/4) executed by defendant No. 1 Virendranath in favour of defendants 2 and 3 of the portions shown in the plaint map is illegal and ineffective against the plaintiffs and the L. Rs. of defendant No. 2 and defendant No. 3 are hereby restrained from interfering with the possession of plaintiffs on the suit property. However, L. Rs. of respondent No. 2 Narmada Prasad Yadav and respondent No. 3 shall be free to realise the consideration from defendant No. 1 Virendranath Agrawal. Looking to the facts and circumstances, parties are directed to bear their own costs throughout.