Tarlok Singh Chauhan, J
1. The plaintiff is the appellant, whose suit for declaration and possession was decreed by the learned trial court, however such judgment was
reversed by the learned first appellate court constraining him to file the instant appeal.
The parties shall be referred to as the “plaintiff†and “defendantsâ€.
2 The plaintiff filed a suit for declaration to the effect that the mutation No. 601 attested on 29.8.2007 on the basis of the sale deed, dated 25.8.2007,
executed by defendant No.2 late Bal Raj in favour of defendant No.1 Daya Devi, appellant herein, to the extent of 85/243 share measuring 8-10-00
Bighas of total land measuring 24- 06-00 comprised in Khata Khatauni No.5/5 situated at Mohal Ninuien Pargana Dhundhi, Tehsil and District
Chamba, HP is against the preferential right of the plaintiff and is therefore null and void and also inoperative on the rights of the plaintiff. The plaintiff
also prayed for a decree of possession of land to the extent of 85/243 share, measuring 8- 10-00 bighas, out of the total land measuring 24- 06- 00
bighas, Khata Khatauni No. 5/5, situated at Mohal Nihuien, as aforesaid.
3 It was further averred by the plaintiff that the land measuring 24-06-00 bighas, comprised in Khasra Nos. 1430, 1535, 1601, 1612, 1613, 1618,
2047/1620, 1621, 1639, 1673, 1683, 1817, 1818, Kitta-13, Khata Khatauni No. 5/5 was recorded in the name of the plaintiff and defendant No. 2 as
joint owners in possession as per the jamabandi for the year 2001-2002. The suit land had devolved upon the plaintiff and defendant No. 2 upon the
death of their father Late Raghu. Late Raghu had another son namely Gian Chand, who had separated from the joint family a long time ago after
taking his separate share. The plaintiff further averred that defendant No. 2 had sold his share by way of a ‘Benami’ transaction to defendant
No. 1 vide sale deed dated 25.8.2007 and subsequently mutation No. 601 had been entered and thus both the sale deed as well as the mutation are
void as they are in violation of the pre-emptive rights of the plaintiff.
4 As per the plaintiff, the aforesaid khata of the plaintiff is still joint with defendant No.2 and the plaintiff had a preferential right to acquire the share
of defendant No. 2. The defendants were asked by the plaintiff to get both, the sale deed as well as the mutation No. 601 cancelled in the month of
October 2007, but the defendants showed their reluctance and hence the suit.
5 The suit was resisted and contested by defendants No. 1 and 2 by filing joint written statement, taking preliminary objections qua non-maintainability,
non-existence of cause of action, locus standi and the suit being barred by limitation. On merits, it was admitted that the suit had devolved upon
defendant No.2 and plaintiff after the death of their father Late Raghu. It was further admitted that their third brother Gian Chand had separated from
the joint family after taking his separate share. However, the allegation that defendant No. 2 had sold his share by way of a ‘Benami’
transaction to defendant No. 1 vide sale deed dated 25.8.2007 has been categorically denied and the defendants stated that the defendant No. 2, being
owner in possession, had every right to sell his share in the land and the plaintiff had no locus standi to challenge the sale deed or the subsequent
mutation.
6 It was further averred that the sale deed as well as the mutation are both legal and defendant No.1 is otherwise bonafide purchaser of the land. The
defendants also denied that the plaintiff had a preferential right over the land of the defendant No. 2 and stated that no such preference was ever put
forth by the plaintiff to acquire share of defendant No. 2 in the land and otherwise also defendant No. 2 was under no legal obligation to sell his share
to the plaintiff.
7 Replication to the written statement was filed, wherein averments made in the written statement were denied, whereas corresponding averments
made in the plaint were reiterated and reaffirmed.
8 From the pleadings of the parties, learned trial court initially framed issues on 16.1.2009 and thereafter one additional issue was also framed on
11.5.2015. The issues so framed on both these dates are as under:-
1. Whether the plaintiff has a preferential right to acquire the right of defendant No. 2 as alleged? OPP
2. If issue No. 1 is proved in the affirmative, whether the sale deed dated 25th August 2007 is null and void and inoperative upon the rights of the
plaintiff? OPP
3. Whether mutation No. 601 dated 29.8.2007 is null and void and inoperative upon the rights of the plaintiff? OPP
4. Whether the plaintiff is entitled to a decree for possession as alleged? OPP
5. Whether the suit is not maintainable? OPD
6. Whether the plaintiff has no locus standi to file the present suit? OPD
7. Whether the plaintiff has no cause of action to file the present suit? OPD
8. Whether the suit is barred by limitation? OPD
9. Whether the defendant No. 2 is a bonafide purchaser of the suit land for valuable consideration or not? If so, its effect? OPD
10. Relief.
9 As observed above, learned trial court, after recording the evidence and evaluating the same, decreed the suit of the plaintiff, however said judgment
and decree was set aside by the learned first appellate court, hence the instant appeal.
10 On 26.4.2018, the instant appeal came to be formally admitted on the following substantial questions of law:
1. Whether on account of mis-appreciation of the pleadings and misreading of the oral as well as documentary evidence available on record, the
findings recorded by the lower appellate Court are erroneous and as such, the judgment and decree impugned in the main appeal being perverse is
vitiated and not legally sustainable?
2. Whether on account of misconstruing and mis-interpretation of the provision contained under Section 22 of the Hindu Succession Act, the impugned
judgment and decree is vitiated and is not legally sustainable?
11 I have heard the learned counsel for the parties and have also gone through the records of the case carefully.
12 In order to appreciate the questions of law, one would have to look into the pleadings and the evidence that has come on record.
Substantial Questions of Law No. 1 & 2
13 Since both substantial questions of law are intrinsically interlinked and interconnected, therefore, they were taken up together for consideration and
are being answered by common reasoning.
14 As regards the pleadings, the same have already been extracted, in extenso above, whereas as regards evidence on record, the plaintiff in his
affidavit Ex.PW-1/A deposed that he and defendant No.2 had got the immovable property by way of succession from their ancestors and, therefore,
he had preferential right over the suit land before it could be sold out to any other person by defendant No.2. However, in his cross- examination, he
admitted that his father had executed a will Ex.DW1/A on 22.2.1983 in favour of his three sons. He further admitted the signature of his father on the
will. Lastly, he admitted that on the basis of will, the property had been mutated in favour of three brothers.
15 Thus, what is evidently clear is that the plaintiff and defendant No.2 and their third brother Gian Chand had succeeded the property on the basis of
will and not by way of intestate succession.
16 No doubt, this plea was not taken by defendants No. 1 and 2 in their written statement and in normal circumstances, defendants would not have
been entitled to lead/prove the will in evidence as there cannot be any evidence beyond the pleadings, but then, as rightly observed by the learned first
appellate court, once the plaintiff had admitted the fact of execution of the will Ex. DW-1/A by his father and further claimed to be in possession of
the property solely on the basis of will, then the plaintiff cannot now claim that even after admission of the will, the defendants should prove the same
in accordance with law.
17 As regards admission, even though it may not be a conclusive proof of the matter admitted, but then in terms of Section 31 of the Indian Evidence
Act, it can always operate as an estoppel. Here, it needs to be noticed that it is not admission of the will alone, the execution whereof has been
admitted by the plaintiff. He has further identified the signature of his father on the will and more importantly, has admitted that it is on the basis of the
will that the property stood mutated in favour of three brothers, i.e. plaintiff, defendant No.2 and Gian Chand.
18 Now, it is too late in the day for the plaintiff to turn around and question the will or else like Tulsi Dass sitting on the same branch, which he had
been cutting.
19 However, learned counsel for the appellant, after placing reliance upon the judgment of the Hon’ble Supreme Court in Vikrant Kapila vs.
Pankaj Panda 2023 INSC 897, would argue that the question of will cannot be decided only on the basis of the admission as the propounder has to
prove the will in a manner known to law.
20 I have gone through the aforesaid judgment and find the ratio laid down therein to be not applicable to the facts of the case, reason being that here,
the plaintiff has not only admitted the execution of the will, but has gone further firstly by identifying the signature of his father on the Will and
thereafter claiming his ownership (co-ownership) over the property on the basis of such Will. Meaning thereby, the plaintiff can ill afford to question
the will or else he may lose the title or some part of the property if he undertakes the risk. That apart, the plaintiff has not at all disputed even before
this Court the Will in question and rightly so.
21 Adverting to the documentary evidence on record, it would be clear from perusal of the jamabandi for the year 1991- 92 Ex.DW/1/S that Khasra
Nos. 1620/1, 1620/2, 1636, 1671,1430, 1535, 1601, 1612, 1613, 1618, 1620/3, 1621, 1639, 1673, 1683, 1817 and 1818 were mutated in favour of the
plaintiff, defendant No.2 Bal Raj and Gian Chand vide mutation No.419, dated 21.4.1994 in lieu of the will executed by their father Raghu.
22 Now, in case the Will, Ext. DW1/A is perused, it would be noticed that late Raghu had three sons, as mentioned above, and apart there from, had
six daughters, but in the will, daughters were totally excluded of the properties and admittedly the property was not bequeathed equally amongst his
three sons, but rather Gian Chand got one share and the remaining share was then equally bequeathed in favour of the plaintiff and defendant No.2.
Thus, the plaintiff had acquired the property by way of will meaning thereby that Raghu had not died intestate.
23 What is “intestate†has been defined in the Black’s Law Dictionary as -
(1) of, relating to or involving a person who has died without a valid will < having revoked her will without making a new one, she was intestate when
she died >.
2 Of, relating to, or involving the property owned by a person who died without a valid will < an intestate estate >
(3) Of, relating to , or involving intestacy < a spouse’ intestate share > ;
and “intestate succession†is defined as
(1)method used to distribute property owned by a person who dies without a valid will
(2) Succession by the common law of descent.â€
24 Likewise, “intestate†has been defined in The Law Lexicon â€" a person who dies without making a Will.
25 Thus, what is clear from the aforesaid definitions is that the “intestate†means without leaving a will, whereas in the instant case, the
succession has devolved upon the plaintiff, defendant No.2 and Gian Chand by virtue of will as executed by their father.
26 Why this assumes importance is because it has direct nexus with regard to question No.2 regarding interpretation of Section 22 of the Hindu
Succession Act, which reads as under:-
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.
27 From bare perusal of the aforesaid section, it is manifest that this section confers a preferential right to the heirs mentioned in Class I of the
Schedule of the Hindu Succession Act to acquire an interest in the immovable property or the business carried on either solely or in conjunction with
other heirs of the intestate. When it devolves on two or more heirs and if any of the heirs proposes to transfer his share in the said property.
28 This right is commonly known as right of pre-emption amongst the heirs of the intestate mentioned in the Schedule to whom immovable property or
business devolves, when anyone of them proposes to transfer his interest. But, this section will not apply where the property devolves by way of will
and is not inherited as per Hindu Succession Act.
29 Reading of clause I of Section 22 will make it clear that right of pre emption is available to class I heirs of a Hindu, who died intestate in respect of
immovable property or business, meaning thereby that this section will therefore have no applicability where a Hindu died and has left behind a Will.
30 Since the property in question has devolved upon the plaintiff, defendant No.2 and Gian Chand by way of will, therefore, Section 22 of the Hindu
Succession Act, as rightly held by the learned first appellate court, was not at all applicable and is, therefore, of no assistance to the plaintiff to claim a
preferential right over the property that has been sold by defendant No.2 to defendant No.1.
31 However, the further findings of the learned first appellate court to the effect that Section 22 of Hindu Succession Act is not applicable to the
“agriculture land†and further reliance on the judgment in Jeewanram vs. Lichmadevi, AIR 1981 Rajasthan 16 are clearly erroneous and contrary
to law.
32 There are plethora of judgments on the subject, however I need not to burden this judgment by quoting those judgments, suffice it to make mention
of judgment of the Hon’ble Supreme Court in Babu Ram vs. Santokh Singh, AIR 2019 SC 1506, wherein judgment of the Rajasthan High Court,
as relied upon by the learned first appellate court, was overruled and it was held that preferential right over the immovable property applies to even
agriculture land also. It shall be apt to reproduce paras 12 to 21 of the judgment, which read as under:-
[12] As regards the High Court of Himachal Pradesh, from which the present matter arises, the Division Bench of the High Court in Roshan Lal
(deceased) through his LRs. vs. Pritam Singh and ors. (R.S.A.No. 258 of 2012 decided on 1.3.2018) had considered all relevant decisions on the point
and concluded that the provisions of Section 22 of the Act would apply in relation to succession to agricultural lands. The conclusion arrived at in the
leading judgment with which the other learned Judge concurred, was:-
56. Thus, ""succession"" falls within the scope of entry No. 5 of List-III and in case a narrow and pedantic or myopic view of interpretation is adopted
by accepting succession to an agricultural land, bringing it within the scope of ""rights in and over land"", impliedly no meaning would be attached to
entry No.5 as each and every word of the list must be given effect to. If there is no local law on the subject, then the special law will prevail which in
the instant case is the Succession Act. The scope, object and purpose of codifying Hindu Law is different. It is to achieve the Constitutional mandate.
There is no provincial law dealing with the subject. As such, the Central Act must prevail.
The view taken by the Division Bench was followed by the High Court in the present matter.
[13] In the aforesaid background, we are called upon to decide the applicability of Section 22 of the Act in respect of agricultural lands. Before we
consider the issues in question, we must refer to the decision of this Court in Vaijanath and ors. vs. Guramma and anr., 1999 1 SCC 292. In that case
matters pertaining to intestacy and succession relating to joint family property including agricultural land, were dealt with by a State law which had
received the assent of the President. Following observations of this Court, are relevant for the present purposes:-
8. There is no exclusion of agricultural lands from Entry 5 which covers Wills, intestacy and succession as also joint family and partition. Although
Entry 6 of the Concurrent List refers to transfer of property other than agricultural land, agriculture as well as land including transfer and alienation of
agricultural land are placed under Entries 14 and 18 of the State List. Therefore, it is quite apparent that the Legislature of the State of Hyderabad
was competent to enact a Legislation which dealt with intestacy and succession relating to Joint Family Property including agricultural land. The
language of the Hindu Women's Rights to Property Act, 1937 as enacted in the State of Hyderabad is as general as the Original Act. The words
'property' as well as 'interest in Joint Family Property' are wide enough to cover agricultural lands also. Therefore, on an interpretation of the Hindu
Women's Right to Property Act, 1937 as enacted by the State of Hyderabad, the Act covers agricultural lands. As the Federal Court has noted in the
above judgment, the Hindu Women's Right to Property Act is a remedial Act seeking to mitigate hardships of a widow regarding inheritance under the
Hindu Law prior to the enactment of the 1937 Act; and it ought to receive a beneficial interpretation. The beneficial interpretation in the present
context would clearly cover agricultural lands under the word 'property'. This Act also received the assent of the President under Article 254(2) and,
therefore, it will prevail.
[14] When the Federal Court was called upon to consider the matter, Entry 21 of List II of 1935 Act had inter alia dealt with ""transfer, alienation and
devolution of agricultural land"". It was in the exclusive domain of the provincial legislatures. The idea that the provincial legislatures were alone entitled
to deal with matters relating to ""transfer, alienation and devolution of agricultural land"" was again made clear in Entry 7 of List III by expression
succession, save as regards agricultural land"" which dealt with concurrent powers. The provincial legislature had thus exclusive competence with
regard to transfer, alienation and devolution of agricultural land. In the circumstances, the Federal Court had answered the first question that the
provisions of Hindu Women's Rights to Property Act, 1937 and Hindu Women's Property (Amendment) Act, 1938 would not regulate succession to
agricultural lands in the provinces.
[15] But the situation underwent considerable change after the Constitution of India was adopted.
(i) The subjects ""Transfer, alienation of agricultural land"" are retained in the State List in the form of Entry 18 but the subject ""devolution"" was taken
out.
(ii) As against earlier Entry 7 of List III where the subject, ""succession"" came with express qualification, "" save as regards agricultural land"", that
qualification is now conspicuously absent in comparable Entry 5 in the present List III. The expression in Entry 5 today is "" intestacy and succession"".
The changes indicated above as against what was earlier available in Entry 21 of List II and Entry 7 of List III make the position very clear. The
present Entry 5 of List III shows ""succession"" in its fullest sense to be a topic in the Concurrent List. The concept of succession will take within its
fold testamentary as well as intestate succession. The idea is, therefore, clear that when it comes to ""transfer, alienation of agricultural land"" which are
transfers inter vivos, the competence under Entry 18 of List II is with the State legislatures but when it comes to ""intestacy and succession"" which are
essentially transfers by operation of law as per law applicable to the person upon whose death the succession is to open, both the Union as well as
State legislatures are competent to deal with the topic. Consequently, going by the principles of Article 254 of the Constitution of India the matter will
have to be dealt with.
[16] In the present case it is nobody's case that the matter relating to succession to an interest in agricultural lands is in any way dealt with by any
State legislation operating in the State of Himachal Pradesh or that such legislation must prevail in accordance with the principles under Article 254 of
the Constitution of India. The field is occupied only by Section 22 of the Act insofar as State of Himachal Pradesh is concerned. The High Court was,
therefore, absolutely right in holding that Section 22 of the Act would operate in respect of succession to agricultural lands in the State.
[17] Though, succession to an agricultural land is otherwise dealt with under Section 22 of the Act, the provisions of Section 4(2) of the Act, before its
omission, had made it clear that the provisions of the Act would not apply in cases inter alia of devolution of tenancy rights in respect of agricultural
holdings. Thus, the effect of Section 4(2) of the Act before its deletion was quite clear that, though the general field of succession including in respect
of agricultural lands was dealt with under Section 22 of the Act, insofar as devolution of tenancy rights with respect to agricultural holdings were
concerned, the provisions of Section 22 would be inapplicable. The High Court of Bombay was, therefore, absolutely right in its conclusion. However,
with the deletion of Section 4(2) of the Act, now there is no exception to the applicability of Section 22 of the Act. But we are not called upon to
consider that facet of the matter.
[18] We now turn to the next stage of discussion. Even if it be accepted that the provisions of Section 22 would apply in respect of succession to
agricultural lands, the question still remains whether the preferential right could be enjoyed by one or more of the heirs. Would that part also be within
the competence of the Parliament? The ""right in or over land, land tenures .."" are within the exclusive competence of the State legislatures under
Entry 18 of List II of the Constitution. Pre-emption laws enacted by State legislatures are examples where preferential rights have been conferred
upon certain categories and classes of holders in cases of certain transfers of agricultural lands. Whether conferring a preferential right by Section 22
would be consistent with the basic idea and principles is the question.
[19] We may consider the matter with following three illustrations:-
a) Three persons, unrelated to each other, had jointly purchased an agricultural holding, whereafter one of them wished to dispose of his interest. The
normal principle of pre-emption may apply in the matter and any of the other joint holders could pre- empt the sale in accordance with rights conferred
in that behalf by appropriate State legislation.
b) If those three persons were real brothers or sisters and had jointly purchased an agricultural holding, investing their own funds, again like the above
scenario, the right of pre-emption will have to be purely in accordance with the relevant provisions of the State legislation.
c) But, if, the very same three persons in illustration (b) had inherited an agricultural holding and one of them was desirous of disposing of his or her
interest in the holding, the principles of Section 22 of the Act would step in.
The reason is clear. The source of title or interest of any of the heirs in the third illustration, is purely through the succession which is recognized in
terms of the provisions of the Act. Since the right or interest itself is conferred by the provisions of the Act, the manner in which said right can be
exercised has also been specified in the very same legislation.
Therefore, the content of preferential right cannot be disassociated in the present case from the principles of succession. They are both part of the
same concept.
[20] When the Parliament thought of conferring the rights of succession in respect of various properties including agricultural holdings, it put a
qualification on the right to transfer to an outsider and gave preferential rights to the other heirs with a designed object. Under the Shastrik Law, the
interest of a coparcener would devolve by principles of survivorship to which an exception was made by virtue of Section 6 of the Act. If the
conditions stipulated in Section 6 were satisfied, the devolution of such interest of the deceased would not go by survivorship but in accordance with
the provisions of the Act. Since the right itself in certain cases was created for the first time by the provisions of the Act, it was thought fit to put a
qualification so that the properties belonging to the family would be held within the family, to the extent possible and no outsider would easily be
planted in the family properties. In our view, it is with this objective that a preferential right was conferred upon the remaining heirs, in case any of the
heirs was desirous of transferring his interest in the property that he received by way of succession under the Act.
[21] We, therefore, conclude that the preferential right given to an heir of a Hindu under Section 22 of the Act is applicable even if the property in
question is an agricultural land. The High Court was right in affirming the judgment and decree passed by the Court of District Judge, Hamirpur in
Civil Appeal No.86 of 1994. In the end, we must also declare that various decisions of the High Courts, some of which are referred to above, which
have held contrary to what we have concluded, stand overruled.â€
33 Similar reiteration of law can be found in another judgment of the Hon’ble Supreme Court in Har Naraini Devi vs. Union of India, AIR 2022
SC 4632.
34 In view of the aforesaid discussions, question No. 1 is answered by holding that the learned first appellate court has neither mis-appreciated the
pleadings nor misread the oral as documentary evidence that has come on record.
35 As regards substantial question of law No.2 and applicability of Section 22 of Hindu Succession Act to the instant case, the learned first appellate
court has correctly applied the same, but thereafter to hold section 22 of the Hindu Succession Act does not apply to the “agriculture land†is
clearly erroneous aand that part of the judgment is set aside. Even after setting aside that portion of the judgment, it has no effect on the merits of
determination made by the first appellate court as now affirmed by this Court.
36 Accordingly, I find no merit in the instant appeal and the same is accordingly dismissed, so also the pending application(s), if any. The parties are
left to bear their own costs.
