Bhaskar Bhattacharya, J.@mdashThis first appeal is at the instance of a plaintiff in a suit for partition and pre-emption and is directed against order dated 31st August, 2000 passed by the learned Civil Judge, Senior Division, Eighth Court, Alipore, District - South 24-Parganas, in Title Suit No. 2 of 1988 thereby passing a preliminary decree declaring one-third share of the plaintiff in Item Nos. 1 and 2 of Schedule and also declaring the right, title and interest of the plaintiff to the extent of half share in Item No. 3 of the Schedule ''A''. The prayer for decree for pre-emption, however, was refused.
2. Being dissatisfied, the plaintiff has come up with the present appeal. The case made out by the plaintiff may be summed up thus:
(a) The property mentioned in the schedule of the plaint belonged to one Keshoblal Das, the father of the plaintiff, who died on 23rd January, 1983 leaving his widow and two daughters including the plaintiff as his only heirs and legal representatives. According to the plaintiff, all those three persons became joint owners of the suit property and they had one-third share each. Bibharani Das, the widow of Keshoblal Das, having died during the pendency of the suit, her share, according to the plaintiff, devolved upon her two daughters and thus, they became the owner to the extent of moiety share. The original defendant No. 2 had consequently become the defendant No. 1 after the deletion of the name of the mother of the parties who originally figured as the defendant No. 1.
(b) Subsequently, by amendment of the plaint, the plaintiff prayed for pre-emption on the allegation that the mother and sister of the plaintiff had sold their share by a sale-deed dated 16th October, 1987 to the added defendant Nos. 2 and 3 and therefore, the plaintiff was entitled to purchase the said Item of the property by exercising her preferential right conferred u/s 22 of the Hindu Succession Act. The further case of the plaintiff was that her sister managed to obtain a Deed of Settlement and Trust dated 30th, October, 1987 in her favour from her mother by practicing undue influence, fraud, coercion and misrepresentation and the same was not binding upon the plaintiff and thus, the defendant No. l did not acquire any right, title and interest in respect of one-third share of her mother on the strength of deed dated 30th October, 1987.
3. Initially, the mother and the sister of the plaintiff contested the suit by filing the written statement and denied all the material allegations made in the plaint and it was the specific defence of the original defendant Nos. 1 and 2 that the premises No. 86/3B, Suren Sarkar Road, Calcutta - 700 010 could not be the subject-matter of pre-emption and as it was not the dwelling house but a fully tenanted house and that the share of Bibharani and Bharati had been transferred on 16th October, 1987. It was further pointed out that so far the premises No. 121, Hem Chandra Naskar Road was concerned, Bibharani had executed the Deed of Settlement in respect of her one-third share in favour of Bharati, the original defendant No. 2 and that after the death of the mother, the trustee, Bharati would become the absolute owner of two-third share in the said premises.
4. The learned Trial Judge, on consideration of the materials on record, came to the conclusion that by virtue of the Deed of Settlement executed by the original defendant No. 1l, her undivided one-third share in respect of premises No. 121, Hem Chandra Naskar Road had devolved upon the defendant No. 2 and thus, the plaintiff had merely one-third share in respect of that property after the death of her mother. The learned Trial Judge disbelieved the case of undue influence, fraud etc.
5. As far as the prayer for pre-emption was concerned, the learned Trial Judge held that the relief in terms of Section 22 of the Hindu Succession Act, 1956 could be obtained by filing a regular suit after payment of ad valorem Court fees and giving specific valuation of the property. It was further held that no evidence was adduced showing the price at which the property was sold by the mother of the party along with Bharati to the third parties. It was further pointed out that even no prayer for assessment of the consideration amount was made.
6. The learned Trial Judge further found that even no relief in terms of Section 4 of the Partition Act could be given to the plaintiff because the said provision was applicable only in respect of the dwelling house whereas admittedly the entire premises were under the occupation of the added defendant Nos.2 and 3 as tenant and no portion of the said premises was in possession of the family members of Keshoblal Das. The learned Trial Judge, thus, dismissed the prayer for pre-emption.
7. Being dissatisfied, the plaintiff has come up with the present appeal.
8. Mr Roychowdhury, the learned senior advocate appearing on behalf of the appellant, restricted his submission only to the question of pre-emption.
9. According to Mr Roychowdhury, Section 22 of the Hindu Succession Act gives an additional right of pre-emption in favour of a person apart from the right of pre-emption conferred u/s 4 of the Partition Act. Mr Roychowdhury contends that all that is necessary for getting a relief u/s 22 of the Hindu Succession Act is that an undivided share in any immovable property or business carried on by an intestate either solely or in conjunction with others must be transferred by any of the heirs of the Class-I and the applicant must be also an heir of the Class-I. Mr Roychowdhury submits that his client has complied with such requirements of Section 22 and therefore, the learned Trial Judge erred in law in holding that the relief of pre-emption could not be granted in the present suit for partition. Mr Roychowdhury, therefore, prays for modification of the decree passed by the learned Trial Judge by granting a decree for pre-emption in favour of his client.
10. Mr Routh, the learned advocate appearing on behalf of the plaintiff/respondent, has opposed the aforesaid contentions advanced by Mr Roychowdhury and has contended that the amendment of the plaint incorporating the prayer of pre-emption was not accompanied by any valuation of the subject-matter nor was any additional Court fees paid on the additional relief of pre-emption and therefore, the learned Trial Judge rightly dismissed the prayer of pre-emption. Mr Routh further contends that there is no scope of granting any relief of pre-emption in terms of Section 22 of the Act after the sale had already taken place. Moreover, the relief u/s 22 of the Act, he continues, can be granted by way of an application in terms of Sub-section 2 of Section 22 and such relief cannot be granted in a regular suit for partition. He, therefore, prays for dismissal of this appeal.
11. Therefore, the only question that arises for determination in this appeal is whether the learned Trial Judge, in the facts of the present case, was justified in refusing the prayer of pre-emption in terms of Section 22 of the Act.
12. In order to appreciate the question involved herein, it will be appropriate to refer to the provision contained in Section 22 of the Act, which is quoted below:
22. Preferential right to acquire property in certain cases.-(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.
(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.
Explanation.-In this section, "Court" means the Court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other Court which the State Government may, by notification in the Official Gazette, specify in this behalf.
13. After hearing the learned Counsel for the parties and after going through the provisions quoted above, we find that the aforesaid provision of the Act has conferred an additional right of pre-emption otherwise than the ones provided in Section 4 of the Partition Act or in Section 8 of the West Bengal Land Reforms Act. Unlike the provision contained in the Partition Act, here, the right of pre-emption is not limited to the dwelling house belonging to an undivided family but to any Immovable property or business carried, on by a Hindu dying intestate either solely or in conjunction with others. However, such right is available only to the heirs specified in Class-I of the Schedule. The provision of Section 8 of the West Bengal Land Reforms Act, it is needless to mention, is limited to the plot of land held by a rayat as provided in the said Act and specific manner of enforcement of that right has been prescribed therein.
14. A distinguishing feature of Section 22 of the Act is that whereas in case of pre-emption provided in the other Statutes, the right to apply for preemption generally accrues only on the registration of the deed of transfer, but in this provision, such right has been conferred upon the pre-emptor even before the actual transfer, if any of the heirs of Class-I proposes to transfer his undivided share. Another peculiar element present is that here, the value of the consideration of the proposed transfer should be decided by the Court unless otherwise agreed to by the parties, i.e. the transferor and the pre-emptor.
15. The first question that falls for determination before us is if the transfer has already taken place before filing of an application u/s 22(2) of the Act, whether the right of pre-emption conferred under the Sub-section 1 of Section 22 is lost.
16. Our considerate view is that even if the transfer has taken place, the right of the pre-emptor under this section is not lost. It is absurd to suggest that the right conferred upon an heir as provided in Sub-section 1 of Section 22 can be frustrated by merely completing the transfer without disclosing the intention of the transfer to the persons who have the right of pre-emption. However, if in spite of disclosing the intention of transfer, the persons, who have the right of pre-emption, decide to waive such right, the Court, in a given situation, can refuse to grant the relief of pre-emption, the right of pre-emption being a weak right.
17. The next question is what should be the mode of enforcement of such right. In our opinion, as the Statute provides, if before the transfer has actually taken place, any of the heirs proposes to exercise such right, the same must be enforced by filing an application as provided in Sub-section 2 of Section 22 and not by a regular suit. We are informed that till today no notification has been published by the State Government specifying the Courts where such application is to be filed in terms of the explanation annexed to Section 22. In the absence of any such notification, the Court, before which such application is to be filed, means the one within whose territorial limit the immovable property is situated or the business is carried on. It, therefore, necessarily follows that the Court, at the present situation, means the Civil Court within whose territorial limit the property is situated or the business is carried on. Once we hold that the Civil Court has such jurisdiction, it is implied that the Civil Court, as provided in the Bengal, Agra, Assam Civil Court Act, should entertain the application. Therefore, the tentative market value of the share in such property or the share of the business, which is the subject-matter of pre-emption, will determine whether a Civil Judge (Junior Division) will entertain it or a Civil Judge (Senior Division), as provided in the said Act.
18. We further find that the Legislature has not provided any right of appeal against the adjudication mentioned in Section 22(2) of the Act. Therefore, if before actual sale of the property, an application is made u/s 22(2) of the Act and such application is adjudicated by a Civil Court, the decision passed thereon is not subject to any appeal, as the adjudication does not amount to a decree as defined in the Code of Civil Procedure. The right of appeal, it is well settled, is a creature of Statute and in the absence of any such right created by the Statute, a litigant is not entitled to get the benefit of appeal. However, such decision in terms of Section 22(2) of the Act being passed by a Court, an aggrieved party has the right to challenge the said decision by taking recourse to either Section 115 of the CPC or Article 227 of the Constitution of India, provided, however, that the decision sought to be impugned fulfils the conditions which are required to be satisfied for invocation of those jurisdictions.
19. The most vital question that next arises for determination is what will be the fate of the pre-emptor if the transfer has already taken place. In our view, the Sub-section 1 of Section 22 having specifically provided that "the other heirs shall have a preferential right to acquire the interest proposed to be transferred", such right cannot be destroyed by merely completing the transaction. However, if the transaction has already taken place, the purchaser acquires joint right in the property subject to the right of preemption of the other heirs of Class-I. In such a situation, the procedure prescribed u/s 22(2), which is meant for "intended transfer", would not be applicable and the pre-emptor should enforce his right of pre-emption, which is undoubtedly a civil right, by filing a civil suit as provided in Section 9 of the Code of Civil Procedure. Consequently, the CPC will be the guidelines for enforcing his right including the right of appeal as provided in Section 96 or Section 100 thereof. Therefore, if a pre-emptor enforces his right after the completion of the transaction by a suit as provided in Section 9 of the Code it must be done by presentation of a plaint as provided in Order IV Rule 1 thereof. Such proceedings would take the shape of a suit for enforcing a right of pre-emption and any decision passed thereon will be subject to right of appeal or second appeal as provided in the Code. A right of pre-emption accrues either by Statute or general usage or by a special contract. Unless the Statute conferring such right specifically lays down the manner of enforcement of such right, the same should be enforced in the same manner all other ordinary civil rights are enforced as provided in Section 9 of the Code.
20. We now propose to deal with the decisions cited by the learned Counsel for the parties in this regard.
In the case of
Thus, it will appear from Provisions of Section 22 that by Sub-section (1) a right is conferred but there is nothing in that sub-section to indicate what procedure is to be followed in the matter of enforcement of that right. Sub-section (2) provides for cases where the parties fail to agree on the amount of consideration to be paid for the transfer of the property and it lays dawn the procedure for having the amount of consideration determined by the Court on an application being made to it. Thus under Sub-section (2) an application may be made to the Court but the scope of that application is quite limited. Such application may be made only for the. purpose of determination of the amount of consideration and not for the purpose of enforcing the right conferred by Sub-section (I). In cases where any statute creates a right without specifying the procedure for enforcement right, the person intending to enforce such right shall have to resort to the procedure contained in the CPC for enforcement of his right. Accordingly, the right conferred by Section 22 can be enforced only by the institution of a regular suit. It is significant to note in this connection that in cases where a right is created by a special Statute generally a procedure is also prescribed thereby for the enforcement of such right. By way of illustration mention may be made of provisions of Section 24 of the West Bengal Non Agricultural Tenancy Act, 1949, Section 8 of the Land Reforms Act, 1955 and Section 26F of the Bengal Tenancy Act 1885. In all these cases there is specific provision made for the making of an application when the right is sought to be enforced. But as already pointed out Sub-section (1) of Section 22 creates a right without specifying any special mode for enforcing the same. This view was also adapted by the Kerala High Court in
21. With great respect to the learned single Judge, we are unable to approve His Lordship''s observation that the Sub-section 2 of Section 22 does not provide for enforcement of the right under Sub-section 1 but meant only for determination of the amount of consideration. In our view, Sub-section 2 clearly provides for enforcement of the right under Sub-section 1 if the transfer has not taken place. The determination of the amount of consideration money is for the purpose of enforcing such right with further mandate that if the applicant refuses to purchase at the price so fixed, he would be liable to pay the costs of such application and the same would be dismissed. If the transfer is complete, we agree with His Lordship that a suit must be filed to enforce the right as is done by a litigant for enforcing, any other civil right.
22. In the case of Valliyil Sreedevi Amma v. Subhadrs Devi (supra), a Division Bench of the Kerala High Court, in arriving at the conclusion that if the transfer had already taken place, a regular suit must be filed a to enforce the right u/s 22 of the Act, observed as follows:
We are unable to agree with the contention advanced by the learned Counsel for the appellant that the aforesaid question can be legitimately gone into by the Court even in an application filed u/s 22 of the Act. In our opinion the object of the legislature in enacting Sub-section (2) of Section 22 is only to provide a cheap and speedy remedy in cases where the property is in the hands of the co-heir who proposes to transfer the same and another co-heir is interested in acquiring the rights of the former but the parties are not able to agree about the consideration for which the former''s interest in the property should be transferred to the latter. Where the property itself has been already transferred away by the co-heir first mentioned we fail to see what useful purpose will be served by an investigation conducted by the Court under Sub-section (2) for determining the price at which the property may be sold by the former to the latter. In such a case an investigation under Sub-section (2) may become relevant only after the person who feels aggrieved ''by the transfer effected by his co-heir in contravention of the provisions of Sub-section (1) has by resort to the appropriate legal process obtained a declaration from the competent Civil Court that the sale effected by the co-heir in favour of strangers is invalid. Even in such a case, unless the co-heir who had effected the impugned alienation again proposes to transfer his interest in the property there can be no occasion for any determination to be made by the Court about the price payable by the other co-sharer under Sub-section (2) of Section 22.
8. Decided cases dealing with Section 22 of the Act appear to be few in number and those which have been brought to our notice do not directly deal with the question that we are called upon to decide in this case and hence we do not consider it necessary to advert to them.
9. In the light of what we have stated above we are clearly of the view that the petition filed in the Court by the present appellant u/s 22(2) of the Act was misconceived and was not maintainable. The 1st respondent had already sold his interest in favour of respondents Nos. 2 to 4 and no steps have, been taken by the petitioner in the manner contemplated by law far assertion and enforcement of her rights under Sub-section (1). It has to be noticed in this connection that even though Section 22(1) does confer a right in the co-heirs to acquire the share of another co-heir who proposes to transfer the share there is nothing in the said section which warrants an alienation effected in contravention of its provisions being regarded as void. 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 Sub-section (1) and subject to the said limited contingency the sale will be operative and binding.
10. The lower Court was perfectly right in holding that the prayers incorporated in the petition for a declaration of invalidity of the sale effected by the 1st respondent in favour of respondents Nos.2 to 4 and for a direction for transfer of the 1st respondent''s share in favour of the petitioner as a further relief consequential to such a declaration are totally outside the scope of an application u/s 22(2) of the Act and we have no hesitation to uphold the said finding. We cannot, however, see our way to agree with the view expressed by the lower Court that the proper remedy for the petitioner is to institute a suit for specific performance. Where there is no agreement either contractual or statutory for conveyance of the property there can be no question of a party seeking the relief of specific performance. 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.
23. We substantially agree with the conclusion arrived at by the Division Bench of the Kerala High Court based, however, on the reasons assigned by us in this judgment. We, however, are unable to accept its view that a decree passed in such a suit will not be appealable, as we have already pointed out that once a Civil Court passes a decree unless there is specific bar created by a Statute, such decree will be subject to appeal as provided in Sections 96 and 100 of the Code. For instance, if a person files a suit for injunction restraining a stranger co-sharer from taking possession of the family dwelling house by enforcing his right created u/s 44 of the Transfer of Property Act and such suit is decreed, the said decree will be appealable even though Section 44 does not specify anything about the right of appeal against a decision based on such right.
24. In the case of
25. The ultimate question, which we are required to answer in this appeal, is whether in a pending suit for partition, a right of pre-emption conferred u/s 22(1) can be enforced by way of amendment of the plaint.
26. A plea of pre-emption is very much interlinked with the relief claimed in a suit for partition. When a co-sharer feels inconvenienced in enjoying the property jointly with his co-sharers, cause of action of a suit for partition accrues. Such cause of action, however, is a recurring one. A right of preemption can be set forth as a defence to a suit for partition and at the same time, unless the law prohibits, the plaintiff can also in a suit for partition of the entire joint properties, claim pre-emption in respect of a particular item of the properties against the transferee of his co-sharer by prohibiting the right of enjoyment of the stranger purchaser. For instance, enforcement of a right u/s 4 of the Partition Act at the instance of a plaintiff is specifically barred. There is, however, no prohibition against enforcement of a right conferred u/s 22(1) of the Act at the instance of a co-sharer after the transfer in a pending suit for partition if the amendment is applied within the period of limitation for enforcing such right. However, in such a case, separate valuation of the relief based on the valuation of the relief must be given and separate Court fees should also be paid on the valuation of the relief. In this case, the prayer for amendment incorporating the relief of preemption was allowed but the consequent amendment of valuation statement was not made nor was any additional Court fees paid for the new relief. In our opinion, the Court having allowed the amendment of the relief of preemption should have also insisted on the amendment of the valuation of the suit and payment of additional Court fees. The defendants also did not challenge such partial amendment and the parties went on trial with such incomplete amendment of pleading. At the time of trial, the Court, however, was of the view that a separate suit for pre-emption ought to have been filed and that there was no scope of deciding the right of pre-emption in the suit for partition. In our view, the plaintiff having approached the Court for amendment with the prayer of pre-emption within the period of limitation and such application having been allowed, it is a fit case, where we should give an opportunity, to the plaintiff to amend the valuation statement by incorporating the valuation given in the deed of transfer. She should pay the additional Court fees on the added valuation.
27. The learned Trial Judge was under the wrong impression that in a pending suit for partition such prayer of pre-emption cannot be adjudicated.
28. On consideration of the entire materials on record, we, therefore, find that so far as the property purchased by the added defendants are concerned, the preliminary decree passed by the learned Trial Judge should be set aside and the learned Trial Judge should decide the prayer of pre-emption on merit after giving opportunity to the plaintiff to amend the valuation. The defendants, it is needless to mention, will get opportunity to file additional written statement and thereafter, the learned Trial Judge will consider the question of grant of the relief of pre-emption in terms of the right conferred u/s 22(1) of the Act after giving the parties an opportunity to give evidence on the question of entitlement of pre-emption.
29. We make it clear that we have not gone into the question whether in this case the plaintiff will be entitled to get the order of pre-emption. We affirm the preliminary decree so far the other items of the properties are concerned. In the facts and circumstances, there will be, however, no order as to costs.
Rudrendra Nath Banerjee, J.
I agree.
