Kerala High Court
Kulangara Abdul Khader vs Dha Shayani on 12 June, 2024
C.R.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE C.PRATHEEP KUMAR
WEDNESDAY, THE 12TH DAY OF JUNE 2024 / 22ND JYAISHTA, 1946
RSA NO. 363 OF 2013
AS NO.38 OF 2009 OF SUB COURT, VATAKARA
OS NO.143 OF 2008 OF MUNSIFF COURT, VATAKARA
APPELLANT/5THE DEFENDANT IN AS 38/2009 - SUB COURT,
VATAKARA/5THDEFENDANT IN OS 143/2008 - MUNSIFF COURT,
VATAKARA
KULANGARA ABDUL KHADER
AGED 61 YEARS
S/O. MOOSA, AZHIYUR AMSOM DESOM, VATAKARA TALUK,
KOZHIKODE DISTRICT, KERALA STATE.
BY ADVS.
SRI.B.KRISHNAN
SRI.R.PARTHASARATHY
SMT.SEEMA
RESPONDENTS/APPELLANT & R2 TO R4 IN AS 38/2009 - SUB COURT,
VATAKARA/PLAINTIFF & D2 TO D4 IN OS 143/2008 - MUNSIFF
COURT, VATAKARA
1 DHASHAYANI (AGE NOT KNOWN TO THE APPELLANT )
AGED 61 YEARS
W/O. SANKARAN, HOUSEWIFE, CHETTENTAVIDA HOUSE,
PARAKKAL, MAHE, PONDICHERRY STATE.
2 JYOTHILAKSHMI (AGE NOT KNOWN TO THE APPELLANT )
W/O. PRADEEPAN, JISHA NIVAS, KARIYADANVALAPPIL
MAKKOOTTAM, TEMPLE GATE PO, THALASSERY.
3 NEETHRAJ (AGE NOT KNOWN TO THE APPELLANT )
S/O. SANKARAN, C/O. JYOTHILAKSHMI, JISH NIVAS,
KARIYADANVALAPPIL, MAKKOOTTAM, TEMPLE GATE.P.O.,
RSA 363/2013
2
THALASSERY.
4 PRIYAMVADA (AGE NOT KNOWN TO THE APPELLANT )
D/O. SANKARAN, RAGHAVA MANDIRAM, BOOVAS COMPOUND
KARANTHAKKAD, KASARGOD.
BY ADVS.
B.RAJESH (KOTTAYAM)
T.K.AJAN(K/80/1992)
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY
HEARD ON 24.5.2024, THE COURT ON 12.06.2024 DELIVERED
THE FOLLOWING:
RSA 363/2013
3
C.R.
C.PRATHEEP KUMAR, J.
--------------------------------------
R.S.A.363 of 2013
-----------------------------
Dated : 12th June, 2024
JUDGMENT
1. This Second Appeal has been preferred by the 5th defendant in the suit,
O.S.No.143/2008 on the file of the Munsiff's Court, Vatakara, who is also
the 5th respondent in A.S.38/2009 on the file of the Subordinate Judge's
Court, Vatakara against the judgment and decree dated 31.1.2013
allowing the appeal. For the purpose of convenience, the parties are
hereafter referred to as per their rank before the trial Court.
2. The plaintiff who is the 1st respondent in the Second Appeal filed the
Suit for pre-emption for enforcing preferential right available under
Section 22(1) of the Hindu Succession Act, 1956. The plaintiff is the
widow and defendants 1 to 4 are the children of deceased Sankaran. The
plaint schedule property originally belonged to Sankaran, and on his
death, the property devolved upon the plaintiff and defendants 1 to 4. The
defendants 1 to 4 assigned their 1/5 share each in the schedule property in
favour of the 5th defendant as per Ext.A3 (Ext.B1) sale deed dated
2.6.2008, for a consideration of Rs.40,000/-. According to the plaintiff,
by virtue of Section 22(1) of the Hindu Succession Act, she is entitled to
preferential right to purchase the shares of defendants 1 to 4, she being
one of the co-heirs.
3. The defendants 1, 2, 4 and 5 filed written statement opposing the
plaintif's claim. According to them, the plaintiff along with defendants 1
to 4 together decided to sell the plaint schedule property to the 5 th
defendant for a consideration of Rs.40,000/- during June-2008. The
plaintiff was also willing to assign her 1/5 share in favour of the 5 th
defendant. Defendants 1 to 4 assigned their share in favour of the 5 th
defendant with the consent of the plaintiff. It was contended that the
plaintiff agreed to assign her share in favour of defendants 1 to 4 later on.
It was also contended that the plaintiff has no preferential right, as
claimed.
4. The trial Court after considering the oral testimony of the plaintiff as
PW1, Dws 1 to 3, Exts.A1 to A3 and Exts.B1 and B2 found that the
plaintiff has preferential right to purchase the share of defendants 1 to 4.
However, the plaintiff was non-suited on the ground that there was no
separate prayer for declaration of the invalidity of the document in
question, namely Ext.A3, or to set aside or cancel the same. However, the
1st Appellate Court held that in a suit for pre-emption, separate prayer for
declaration is not necessary and accordingly allowed the appeal and
decreed the Suit. Aggrieved by the above finding of the 1 st Appellate
Court, the 5th defendant preferred this second appeal.
5. At the time of admission, the following substantial questions of law
were formulated :
i. Whether Ext.B1 is void or is it only voidable ?
ii. Whether the lower appellate court was justified in allowing
the plea of pre-emption put forward by the plaintiff under
Section 22 of the Hindu Succession Act ?
iii. In the event of allowing the claim under Section 22 of
Hindu Succession Act, is not the court bound to enquire into
the value of the property ?
6. Both sides were heard in detail on the above questions of law.
7. The plaintiff filed the suit claiming preferential right to purchase the
shares of defendants 1 to 4 recognized under Section 22(1) of the Hindu
Succession Act. In the impugned judgment, the trial court also found that
the plaintiff is entitled to preferential right to purchase the shares of
defendants 1 to 4, by virtue of sub-section (1) of Section 22 of the Hindu
Succession Act. The trial Court denied relief of pre-emption to the
plaintiff on the ground that since the defendants 1 to 4 had already
assigned their share in the plaint schedule property in favour of the 5 th
defendant as per Ext.A3 sale deed, the plaintiff ought to have prayed for
setting aside the said document. The trial court found that Ext.A3 sale
deed is only a voidable document and hence, unless and until it is set
aside, it will continue to be a valid document. Therefore, it was held that,
in order to enforce the right of pre-emption, the sale deed is to be set
aside.
8. On the other hand, the 1st Appellate Court while reversing the
finding of the trial court observed that the question of transfer effected by
the other co-heirs in favour of stranger becomes relevant in a suit for pre-
emption, as an "incidental matter",which has necessarily to be gone into
for the purpose of determining whether the plaintiff is entitled to the
relief sought for by him against his co-heir, in enforcement of the right.
Thereafter, the learned 1st Appellate Court proceeded to hold that even
though the transfer effected by defendants 1 to 4 in favour of the 5 th
defendant is a voidable one, the plaintiff can very well exercise the pre-
emption right without a separate prayer to set aside the document already
executed. Accordingly, the 1st Appellate Court reversed the judgment and
decree of the trial Court and decreed the suit.
9. In the decision in Valliyil Sreedevai Amma v. Subhadra Devi and
Ors., AIR 1976 Ker. 19, relied upon by the learned counsel for the
plaintiff, a Division Bench of this Court, had occasion to consider the
remedy of a co-heir, once the other co-heir transferred his share to a
stranger. In paragraph 6, the Division Bench held that :
"In case the proposed transfer is effected by one of the co-
heirs in violation of the right conferred on his co-heirs by Sub-
section (1) the latter cannot certainly be without a remedy
because every legal right must necessarily carry with it a
remedy for enforcing the same. The remedy of the non-
alienating co-heirs, in such circumstances, will, in our opinion,
be to seek the intervention of the Court to enable them to
acquire the right which has been transferred away by the other
co-heir in violation of Sub-section (1) of Section 22. In as
much as the section does not provide any special procedure for
seeking the said remedy, the ordinary procedure for
enforcement of any civil right has to be resorted to by the co-
heirs who wish to enforce their rights under Section 22 (1); in
other words the remedy is by way of a regular civil suit before
the competent court. Where the properties have been already
alienated in favour of strangers there is all the more reason
why there should be a full and fair adjudication of the entire
matter in a suit tried before a competent civil Court because
various factual questions are bound to arise for determination
in such a suit wherein the principal issue would be whether the
transfer complained of was effected in violation of Sub-section
(1) of Section 22. The main purpose of such a suit instituted by
the co-heir will necessarily be the enforcement of the right
conferred by Section 22(1) of the Act. The question of
invalidity of the transfer effected by the other co-heir in favour
of strangers becomes relevant in such an action as an
incidental matter which has necessarily to be gone into for the
purpose of determining whether the plaintiff is entitled to the
relief sought by him against his co-heir in enforcement of the
right conferred by Section 22 (1).
10. In paragraph 9, the Division Bench further observed that :
"Such an alienation will, at best, be only voidable at the
instance of the sharer who institutes the suit for enforcement of
his right under Subsection (1) and subject to the said limited
contingency the sale will be operative and binding."
11. In paragraph 10, the Division Bench further held that :
"The remedy as we have already indicated, is only to file a suit
for enforcement of the limited right of purchase conferred by
Sub-section (1) of Section 22 and in such a suit the question of
invalidity of the sale already effected by the co-sharer will be
incidentally investigated and decided. "
12. In order to canvass the argument that Ext.A3 is a voidable document,
the learned counsel for the 5th defendant relied upon the decision of the
Hon'ble Supreme Court in Bishan Singh and others v. Khazan Singh
and another, AIR 1958 SC 838. In the above decision, after analyzing
various decisions, the Hon'ble Supreme Court reiterated that :
" It therefore follows that where a suit is brought it is on
payment of the purchase-money on the specified date that the
plaintiff obtains possession of the property, and until that
time the original purchaser retains possession and is entitled
to the rents and profits. "
13. In paragraph 23, the Hon'ble Supreme Court further observed that :
"This judgment is, therefore, a, clear authority for the
position that the pre-emptor is not substituted in the place of
the original vendee till conditions laid down in the decree are
fulfilled."
14. In the light of the decision of the Hon'ble Supreme Court in Bishan
Singh (supra) and the Division Bench of this Court in Valliyil Sreedevai
Amma (supra) it can be safely concluded that the document executed by
defendants 1 to 4 in favour of the 5 th defendant ignoring the right of pre
emption of the plaintiff under Section 22(1) of the Hindu Succession Act
(Ext.B1) is a voidable document. Therefore, the learned counsel for the
5th defendant would argue that in the absence of a prayer for declaration
that Ext.A3 is to be set aside as null and void, the 1st Appellate Court was
not justified in reversing the finding of the trial Court.
15. The learned counsel for the 5 th defendant relied upon the decision of
the Constitutional Bench of the Hon'ble Supreme Court in Atam
Prakash v. State of Haryana and Others, AIR 1986 SC 859 also, in
support of his argument. In the above decision, the Constitution Bench
held that the provisions of the Punjab Pre-emption Act to the extent it
granted pre-emption right to kinsfolk on the basis of consanguinity is
ultra vires the constitution. The learned counsel prayed for applying the
above principle in the instant case also, wherein pre-emption right is
given to heirs specified in clause I of the schedule.
16. The Punjab Pre-emption Act (1 of 1913) confers pre-emption right to
various groups of persons including co-sharers, tenants and kinsfolk. As
per the judgment in Atam Prakash (supra), the Constitution Bench set
aside the pre-emption right granted to kinsfolk on the basis of
consanguinity alone, and upheld similar right granted to co-sharers and
tenants. While upholding the pre-emption right granted in favour of co-
sharers and tenants, in paragraph 10, the Constitution Bench held thus :
"In the first case, Bhau Ram v. B.Baijnath Singh, AIR 1962
SC 1476, the right of pre-emption given to co-sharers was
held to be a reasonable restriction on the right to hold,
acquire or dispose of property conferred by Art.19(1)(f) of
the Constitution. What has been said there to uphold the
right of pre-emption granted to a co-sharer as a reasonable
restriction on the right to property applies with the same
force to justify the classification of co-sharers as a class by
themselves for the purpose of vesting in them the right of
pre-emption."
17. Pre-emption right to kinsfolk on the basis of consanguinity was
justified by the Court on the ground that -
"The classifications has been made on reasonable basis in the
interests of the public :-(i) to preserve integrity of village
community;(ii) to avoid fragmentation of holdings;(iii) to
implement the agnatic theory of succession;(iv) to promote
public and private decency;(v) to facilitate tenants to acquire
ownership rights;(vi) to reduce litigation consequent to
introduction of an outsider on family property or jointly
owned property."
18. The Constitution Bench noticed certain glaring facts which appear to
detract from the theory of preservation of the integrity of the family and
the theory of agnatic right of succession. In paragraph 12 of Atam
Prakash (supra), the Constitution Bench observed that :
"A scrutiny of the list of persons in whose favour the right of
pre-emption is vested under S.15 reveals certain glaring facts
which appear to detract from the theory of preservation of the
integrity of the family and the theory of agnatic right of
succession. First we notice that neither the father nor the
mother figures in the list though the father's brother does.
The son's daughter and the daughter's daughter do not
appear though the son's son and daughter's son do. The sister
and the sister's son are excluded, though the brother and the
brother's son are included. Thus relatives of the same degree
are excluded either because they are women or because they
are related through women. It is not as if women and those
related through women are altogether excluded because the
daughter and daughter's son are included. If the daughter is
to be treated on a par with the son and the daughter's son is
treated on a par with the son's son it does not appear logical
why the father's son (brother) should be included and not the
father's daughter (sister). These are but a few of the intrinsic
contradictions that appear in the list of relatives mentioned in
S.15 as entitled to the right of pre-emption. It is
ununderstandable why a son's daughter, a daughter's
daughter, a sister or a sister's son should have no right of
pre-emption whereas a father's brother's son has that right.
As S.15 stands, if the sole owner of a property sells it to his
own father, mother, sister, sister's son, daughter's daughter or
son's daughter, the sale can be defeated by the vendor's
father's brother's son claiming a right of pre- emption."
19. It was in the light of the above glaring facts, the Hon'ble Supreme
Court set aside the right of pre-emption granted to kinsfolk on the basis
of consanguinity while upholding the pre-emption right granted to
sharers and tenants.
20. Sub-section (1) of Section 22 of the Hindu Succession Act, 1956 states
that :
"(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. "
21. On a perusal of the above provision it can be seen that sub-section (1)
of Section 22 grants right to all the heirs specified in class-I of the
Schedule to Hindu Succession Act, without any discrimination. In Atam
Prakash (supra), the Constitution Bench upheld the right of pre-emption
to co-sharers as it found that classification of co-sharers as a class by
themselves for the purpose of vesting in them the right of pre-emption is
a reasonable one. The very same reasoning was given by the Constitution
Bench for upholding the pre-emption right to the tenants, as it was
intended to protect the interest of the tenants.
22. In the case of pre-emption right granted to kinsfolk, there was no such
reasonable classification. Some relatives of the same degree were
excluded either because they are women or because they are related
through women. The Court found intrinsic contradictions that appear in
the list of relatives mentioned in Section 15 as entitled to the right of pre-
emption. It was in the above context that the right of pre-emption granted
to kinsfolk on the basis of consanguinity was held ultra vires the
constitution.
23. Since all the heirs specified in list I of the Schedule are granted
preferential right under sub-section (1) of Section 22 of Hindu
Succession Act, without any discrimination, it is to be held that such a
classification is also a reasonable one. I do not find any similarity to the
above classification to that of the kinsfolk covered under the Punjab Pre-
emption Act. Therefore, the prayer for applying the dictum laid down by
the Constitution Bench in Atam Prakash (supra) relating to pre-emption
right of kinsfolk, to the heirs specified in sub-section (1) of Section 22 of
the Hindu Succession Act is unreasonable and liable to be rejected.
24. On the other hand, the reasons and justifications given by the Hon'ble
Supreme court in Atam Prakash (supra) to uphold the right of pre-
emption granted to a co-sharer as a reasonable restriction on the right to
property applies with the same force to justify the classification of the
heirs specified in list I of the Schedule to Hindu Succession Act, 1956
also.
25. The learned counsel for the 5 th defendant invited my attention to a
subsequent decision of a two-Judges Bench of the Hon'ble Supreme
Court in Babu Ram v. Santokh Singh (deceased) through his Lrs and
others (Civil Appeal No.2553 of 2019), in which the Supreme Court
held that the preferential right given to an heir of a Hindu under Section
22 of the Hindu Succession is applicable even if the property in question
is an agricultural land. The above decision pronounced long after the
decision of the Constitutional Bench in Atam Prakash (supra) also
substantiates my above conclusion.
26. The learned counsel for the plaintiff relied upon the decisions in
Reghunath (D) by Lrs v. Radha Mohan (D) through Lrs and Others,
AIR 2020 SC 5026, Govindan Nair C.M and Others v.
M.Ramachandran Nair and Others, 2013 (2) KHC 229 and Ram Tari
and Others v. Rattan Chand and Others, 2019 KHC 2282, in support
of his argument that even without a prayer for declaration, the right of
pre-emption can be enforced. In Ram Tari (supra), the Himachal Pradesh
High court held that the sale deed executed by the co-heir ignoring
Section 22 (1) of the Hindu Succession Act and any other consequential
action are illegal, null and void and hence quashed.
27. In Govindan Nair C.M and Others (supra), the suit was for
declaration of right of pre-emption. In that case also, the sale deed was
executed by the 2nd defendant in favour of the 1st defendant ignoring the
preferential right of the plaintiff. In the suit there was no specific prayer
for setting aside the above sale deed (Ext.B1). The defendants have taken
a contention that absence of the prayer to set aside Ext.B1 is fatal.
However, the learned Single Judge rejected the above contention of the
defendants and held that :
"The other contention that was vehemently advanced by the
learned counsel for the appellants is that Ext.B1, the document
executed by the 2nd defendant in favour of first defendant
should have been got set aside, but no such prayer is there in
the plaint. I cannot agree with that submission. The suit was
filed for a declaration that Ext.B1 assignment deed dated
12.9.2000 executed by the 2nd defendant in favour of the first
defendant is void and inoperative in view of the right of pre-
emption available to the plaintiff. The consequential relief
claimed seeking a direction to the 2nd defendant to execute a
deed of conveyance to the plaintiff for a consideration as may
be determined by the court and in case of his refusal such an
assignment deed should be executed by the court in favour of
the plaintiff would negative the plea raised by the appellants."
28. In the decision in Bishan Singh (supra), a four-Judges bench of the
Hon'ble Supreme Court has defined the material incidents of the right of
pre-emption, after referring to certain earlier decisions, in the following
words :
"Before attempting to give a satisfactory answer to the question
raised, it would be convenient at the outset to notice and define
the material incidents of the right of pre-emption. A concise but
lucid statement of the law is given by Plowden J. in Dhani Nath
v. Budhu 136 Pun Re 1894 (A), at page 511, thus :
"A preferential right to acquire land, belonging to
another person upon the occasion of a transfer by the latter,
does not appear to me to be either a right to or a right in that
land. It is,jus ad rem alienum acquirendum and not a jus in re
aliena......... A right to the offer of a thing about to be sold is not
identical with a right to the thing itself, and that is the primary
right of the pre-emptor. The secondary right is to follow the
thing sold, when sold without the proper offer to the pre-emptor,
and to acquire it, if he thinks fit, in spite of the sale, made in
disregard of his preferential right."
The aforesaid passage indicates that a pre-emptor has
two rights: (1) inherent or primary right, i.e., a right to the offer
of a thing about to be sold and (2) secondary or remedial right
to follow the thing sold."
29. In paragraph 11, the Hon'ble Supreme Court summarized the right of
pre-emption as follows :-
"To summarize: (1) The right of pre-emption is not a right to
the thing sold but a right to the offer of a thing about to be sold.
This right is called the primary or inherent right. (2) The pre-
emptor has a secondary right or a remedial right to follow the
thing sold. (3) It is a right of substitution but not of re-purchase,
i. e., the pre-emptor takes the entire bargain and steps into the
shoes of the original vendee. (4) It is a right to acquire the
whole of the property sold and not a share of the property sold.
(5) Preference being the essence of the right, the plaintiff must
have a superior right to that of the vendee or the person
substituted in his place. (6) The right being a very weak right, it
can be defeated by all legitimate methods, such as the vendee
allowing the claimant of a superior or equal right being
substituted in his place."
30. The above decision of the Hon'ble Supreme Court in Bishan Singh
(supra) was referred to by the three-Judges Bench in Reghunath (supra)
relied upon by the appellant. On a perusal of the above dictum laid down
by the Apex Court in Bishan Singh (supra) and Reghunath (supra), it
can be seen that a pre-emptor has an inherent or primary right, which is a
right to the offer of a thing about to be sold and a secondary or remedial
right to follow the thing sold. It is a right of substitution in which the pre-
emptor steps into the shoes of the original vendee which is, in effect, as if
in a sale deed the vendee's name were rubbed out and pre-emptor's name
inserted in its place.
31. As held by the Division Bench of this Court in Valliyil Sreedevai
Amma (supra) the remedy of the pre-emptor is only to file a suit for
enforcement of the limited right of purchase conferred by sub-section (1)
of Section 22. In such a suit, the question of invalidity of the sale already
effected by the co-sharers will be incidentally investigated and decided.
As held in Govindan Nair (supra), the absence of a specific prayer for
setting aside Ext.B1 sale deed or for a declaration that Ext.B1 is null and
void, is also not necessary in a suit for pre-emption filed under sub-
section (1) of Section 22.
32. In the instant case, the reliefs sought for in the plaint are the
following :-
"(a) directing the defendants 1 to 4 to convey the 4/5 shares
in the plaint schedule property avoiding and ignoring the
transfers made by the defendants 1 to 4 in enforcement of the
plaintiff''s preferential right to acquire it in favour of the
plaintiff.
(b) directing the plaintiff to deposit consideration of
Rs.40,000/- (rupees forty thousand only) by the court as
consideration within a time to be specified.
(c) On failure of the defendants 1 to 4 executing and
registering the conveyance in the specified time, the Hon'ble
court to execute and register the conveyance in favour of the
plaintiff."
33. In paragraph 5 of the plaint there is specific pleading to the effect that
Ext.B1 sale deed is invalid, inoperative and void so far as the plaintiff is
concerned. In paragraph 5 she had further pleaded that she had repudiated
and avoided Ext.A3 when she came to know about it. Relief (a) prays for
directing the defendants 1 to 4 to convey the 4/5 share in the plaint
schedule property after avoiding and ignoring the transfers made by the
defendants 1 to 4 in enforcement of the plaintiff''s preferential right to
acquire it. From the above pleadings and reliefs in the plaint it can be
seen that the plaintiff has specific case that Ext.B1 sale deed executed by
defendants 1 to 4 in favour of the 5th defendant is null and void as against
the plaintiff's preferential right under Section 22(1) of the Hindu
Succession Act. She also prayed for avoiding and ignoring Ext.A3,
though there is no separate prayer for declaration or setting aside the
same.
34. Section 32 of the Kerala Court fees and Suit Valuation Act
provides separate court fee for pre-emption suits. As per the above
provision :-
"In a suit to enforce a right of pre-emption, fee shall be
computed on the amount of the consideration for the sale which
the pre-emptor seeks to avoid or on the market value, whichever
is less"
35. The above provision makes it clear that a suit for pre-emption is
an independent suit and there is only a single and common provision for
payment of court fee, for such a suit. It is also an indication that no
separate/ additional court fee is required even in case, the property is
assigned in favour of any stranger, ignoring the right of pre-emption.
36. Therefore, in the light of the above discussions it can be seen that once
the plaintiff files a suit for enforcement of right of pre-emption under
sub-section (1) of Section 22 of the Hindu Succession Act, invalidity of
the sale already effected by the co-sharers will be considered,
investigated and decided incidentally and as such a separate prayer for
declaration that the said document is null and void or for setting aside the
said document is not mandatory. For the very same reasons, it is to be
further held that absence of such a separate prayer for declaration that
Ext.A1 is null and void or for setting aside the said document is not a
ground for non-suiting the plaintiff. Therefore, the impugned judgment of
the first appellate court reversing the judgment of the trial court and
upholding the right of pre-emption of the plaintiff is liable to be
sustained.
37. In this case the plaintiff and defendants 1 to 4 have not entered into
any agreement with regard to the consideration to be paid by the plaintiff
towards the 4/5 share of defendants 1 to 4 over the schedule property. In
the above circumstance, it is the duty of the court to determine the
amount of consideration to be paid to defendants 1 to 4, after conducting
necessary enquiry as contemplated under sub-section (2) of Secion 22 of
the Hindu Succession Act.
38. In Ext.A1 sale deed executed by defendants 1 to 4 in favour of the 5 th
defendant, the consideration shown is Rs.40,000/-. The 1 st Appellate
Court accepted the consideration shown in Ext.A1 and directed the
plaintiff to deposit Rs.40,000/- before the Court within a period of one
month with intimation to the defendants, which the plaintiff complied. At
the time of arguments, the learned counsel for the plaintiff would argue
that the consideration fixed by the 1st Appellate Court at a sum of
Rs.40,000/- was not arrived at after conducting any enquiry as
contemplated under sub-section (2) of Secion 22 of the Hindu Succession
Act.
39. It appears that no specific issue was framed either by the trial Court or
by the 1st Appellate Court regarding the consideration to be paid to
defendants 1 to 4 under sub-section (2) of Section 22. In the written
statement, the defendants have taken a contention that the plaintiff also
agreed to sell the entire plaint schedule property in favour of the 5 th
defendant for a total consideration of Rs.40,000/-. However,
subsequently she agreed to assign her share at a later point of time. From
the available evidence it appears that the 1 st Appellate Court fixed the
consideration at a sum of Rs.40,000/- solely based on the consideration
shown in Ext.A1. At the same time, there was no specific issue for
adjudication of the consideration payable by the plaintiff under sub-
section (2) of Section 22.
40. The learned counsel for the plaintiff would argue that, at this belated
stage, it is not just and proper to remand the matter for enquiry under
sub-section (2) of S.22 to the trial Court and that this Court can fix a
reasonable consideration as decided by the learned Single Judge in the
decision in Govindan Nair (supra). In the above decision, the
consideration shown in Ext.B1, the assignment deed was Rs.12,000/-. In
addition to the same, the plaintiff was directed to deposit a further sum of
Rs.15,000/- before the trial court towards the consideration of the
property involved therein. In the instant case, the defendants 1 to 4 have
not raised any serious dispute regarding the consideration of Rs.40,000/-
mentioned in Ext.A1. In spite of that, considering the entire facts
including the dictum laid down in Govindan Nair (supra), I hold that a
direction to the plaintiff to deposit a further sum of Rs.25,000/- will be
sufficient to meet the ends of justice. Subject to the above condition, this
second appeal is liable to be dismissed. The substantial questions of law
are answered accordingly. No other substantial questions of law were
raised at the time of hearing.
41. In the result, this second appeal is dismissed, subject to the condition
that the plaintiff shall deposit a further sum of Rs.25,000/-(twenty five
thousand rupees only), before the trial Court, as part of the consideration
payable to defendants 1 to 4, within a period of two months from today.
Considering the facts, I order no costs.
All pending interlocutory applications stand closed.
Sd/-
C.Pratheep Kumar, Judge
Mrcs/27.5
