An application under section 22 of the Hindu Succession Act is not maintainable to enforce the right of pre-emption in respect of the sale of property by a co-heir to a stranger.

Headnote:
HINDU SUCCESSION ACT - SECTION 22 - APPLICATION FOR PRE-EMPTION - MAINTAINABILITY - LIMITATION - TRANSFER OF SHARE BY CO-HEIR - EFFECT.
Fact of the Case:

Tarubai, one of the five daughters of Babu Pawar, filed an application under section 22 of the Hindu Succession Act, 1956, seeking to enforce her right of pre-emption in respect of the sale of her deceased father's property to Bhiku, the husband of one of her sisters. The trial court allowed the application, but the appellate court dismissed it, holding that such an application was not maintainable under section 22 and that it was barred by limitation.
Finding of the Court:

The High Court held that an application under section 22 of the Hindu Succession Act was not maintainable to enforce the right of pre-emption in respect of the sale of property by a co-heir to a stranger. The Court further held that the residuary Article 137 of the Indian Limitation Act, 1963, was applicable to such an application and that the application was barred by limitation.
Issues: 1. Whether an application under section 22 of the Hindu Succession Act is maintainable to enforce the right of pre-emption in respect of the sale of property by a co-heir to a stranger? 2. Whether the residuary Article 137 of the Indian Limitation Act, 1963, is applicable to such an application?
Ratio Decidendi: 1. Section 22(1) of the Hindu Succession Act confers a preferential right of purchase on one co-heir to acquire the interest of another co-heir in immovable property or business. Section 22(2) provides for the determination of the consideration for such transfer by the court on an application being made to it in this behalf. 2. The provisions of section 22(2) are limited to the determination of the consideration for the transfer and do not confer upon the court the power to adjudicate upon the rights of a purchaser from the other co-heirs. 3. The only remedy available to a co-heir who wishes to challenge a transfer of property by another co-heir to a stranger is to file a separate suit.
Final Decision: The High Court dismissed the appeal, holding that the application under section 22 of the Hindu Succession Act was not maintainable and that it was barred by limitation.

JUDGMENT - Deshpande D.B., J.- One Babu Pawar, who died on 2-1-1959, left behind him his widow Hiranbai and five daughters (l)Hnabai, (2) Tarubai, (3) Babi, (4) Muktabai and (5) Sushilabai. Tarubai is the original applicant and is also appellant before this Court in this second appeal. Other four daughters are respondents Nos. 2 to 5 in this appeal and they were original opponents Nos. 2 to 5. Bhiku, Original opponent No. 1 and present respondent No. 1 is the husband of one of the sisters, by name, Hirabai. Admittedly, Hiranbai died on 26-12-1967, but, prior to her death on 5-9-1967, Hiranbai and two daughters Hirabai and Sushilabai sold the entire property left by Babu Pawar to Bhiku by a registered sale-deed.

2. In the year 1968, the present appellant Tarubai filed a suit in the Civil Court contending that the sale-deed executed by Hiranbai, Hirabai and Sushilabai was not binding vis-a-vis her share in the property and she claimed partition and separate possession of her share in the property left by Babu. This suit was ultimately withdrawn on 8-10-1969 by Tarubai with liberty to file a fresh suit on the same cause of action. In the meanwhile, on 16-6-1969, one of the daughters Muktabai gave her consent to the sale-deed executed by Hiranbai and others to Bhiku opponent No. 1 and on 23-8-1971, Babi executed a deed of consent to the sale-deed Exh. 32 executed by Hiranbai, Hirabai and Sushilabai in favour of Bhiku opponent No. I. It is also significant to note that on 20-8-1969, appellant Tarubai also sold her share to Krishna and Raghunath Pawar but on 1-2-1971, these purchasers Pawars re-sold that property to appellant Tarubai admitting therein that the earlier sale-deed dated 20-8-1969 by Tarubai in their favour was in the nature of a mortgage. Although Tarubai withdrew the earlier Suit No. 111/68 on 8-10-1969, it does not appear that she filed any other suit, but, on 22-9-1972, she filed an application in the trial Court under section 22 of the Hindu Succession Act to enforce her right of pre-emption in respect of sale in favour of Bhiku, the opponent and present respondent No. 1.

3. This application was resisted by opponent respondent No. 1 Bhiku,

inter alia, on the grounds that such application under section 22 of the said Act is not maintainable. He contended also that the application is barred by limitation and he contended further that the applicant Tarubai has no right to file this application in view of the fact that she herself had sold her share in the property to Krishna and Raghunath Pawar.

4. Before the trial Court, submissions were made and after hearing all the submissions before him, the learned trial Judge held that this application was tenable in view of section 22 of the said Act. He held that the provisions of Limitation Act were not applicable to an application under this section and therefore, according to him, the application was not barred by limitation. Similarly, he held that the applicant was not estopped from filing this application. He held that the withdrawal of earlier suit had no effect on this application and consequently, he allowed the application and fixed the price and directed the applicant to deposit the amount in the Court and passed incidental orders.

5. Feeling aggrieved by this decision, Bhiku and Hirabai, respondents

Nos. 1 and 2 preferred an appeal to the District Court at Satara and the appeal was heard by the learned District Judge, Satara, Before the learned District Judge, reliance was placed on behalf of the appellants i. e. Bhiku and Hirabai, on a Division Bench decision of the Kerala High Court and on behalf of the present appellant, reliance was placed on the decision of Orissa High Court. After considering the statutory provisions and after considering both the rulings on this point, the learned District Judge felt that the decision of the Kerala High Court was more consistent with the provisions of the Hindu Succession Act and so, he preferred to follow that

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Judicial Analysis