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CALCUTTA HIGH COURT
Sudhir Ranjan Roy, J.
Gadadhar Majhi
Vs.
Jurali Mondal & Ors.
Second Appeal No. 365 of 1974
Decided on : September 30, 1985
PRE-EMPTION - HINDU SUCCESSION ACT, 1956 - SECTION 22 - APPLICABILITY TO CONCLUDED TRANSFERS - LIMITATION - ARTICLE 97 OF LIMITATION ACT, 1963 - APPLICABILITY.
Fact of the Case:
Plaintiff filed a suit for pre-emption under Section 22 of the Hindu Succession Act, 1956, claiming preferential right to purchase 5 decimals of land out of the western half of the suit-plot, which the defendants had purchased from his other co-heirs. The defendant contested the suit, contending that the suit was not maintainable without the relevant documents of transfer, that the transfers having been completed, Section 22 of the Hindu Succession Act was not attracted, and that the suit was barred by limitation.
Finding of the Court:
The Court held that Section 22 of the Hindu Succession Act applies to concluded transfers as well and that the plaintiff had a right to pre-emption. However, the Court also held that the suit was barred by limitation under Article 97 of the Limitation Act, 1963, as the plaintiff had not filed the suit within one year of his date of knowledge that the defendant had taken physical possession of the lands sought to be pre-empted.
Issues: 1. Whether Section 22 of the Hindu Succession Act, 1956 applies to concluded transfers? 2. Whether the suit was barred by limitation under Article 97 of the Limitation Act, 1963?
Ratio Decidendi: 1. The Court held that Section 22 of the Hindu Succession Act, 1956 applies to concluded transfers as well, relying on judicial precedents and the principle of judicial interpretation that a statutory provision should be so interpreted as to give effect to the true intention of the legislature. 2. The Court held that the suit was barred by limitation under Article 97 of the Limitation Act, 1963, as the plaintiff had not filed the suit within one year of his date of knowledge that the defendant had taken physical possession of the lands sought to be pre-empted.
Final Decision: The appeal was allowed, and the impugned judgments and decrees passed by the learned courts below were set aside. The suit was dismissed on contest.
This appeal by the defendant no. 1 is against the judgment .and decree passed in Title Appeal No. 33 of 1971 by the learned Subordinate Judge, Purulia, affirming those of the learned Munsif, Raghunathpur passed in Title Suit No. 151 of 1970.
2. The relevant facts are as follows :
The suit-plot, being plot no. 1153 measuring 25 decimals, originally belonged to two brothers, Prahlad Mondal and Gobinda Mandal, each having a moiety share therein. By arrangement Prahlad possessed the eastern 12½ decimals and Gobinda the western 12½ decimals Subsequently Prahlad settled his moiety share to Gobardhan Majhi, father of the present defendant no. 1 Gadadhar Majhi and Gobinda settled his portion to Ananta Mandal, father of the plaintiff Ananta having expired sometime in 1350-51 B. S, his portion of the land, viz, the western 12½ decimals of the suit-plot, was inherited by the plaintiff (his son), widow Phulkumari alias Phulkomani, predeceased son Bonku's widow Paribala (defendant no. 4) and pre-deceased son Mansaram's sons Santosh (defendant no. 2) and Sunil (defendant no 3). Ananta also left the defendant no. 5 Sami Mandulini as his daughter, but under the existing law she was not her father's legal heir. Thus, on Ananta's death his properties including the western 12/½ decimals of the suit plot were inherited by the plaintiff and his other legal heirs, each having 1/4th shale therein.
3. The plaintiff filed it suit for partition in respect of his 1/4th share in the properties including the western half of the suit-plot, being Title Suit No 79 of 1951, though by mistake the area of the western portion of the suit plot was described in the schedule to the plaint as 10 decimals instead of 12/½ decimals.
4. The suit was decreed in preliminary form on June 28, 1952 declaring the plaintiff's 1/4th share in the properties and the final decree was passed on July 29, 1954.
5. According to the plaintiff the defendant no. 1 during the pendency of the suit purchased the interests of some of his co-heirs including 12/½ decimals of land out of the western 12/½ decimals of the suit plot, the remaining 10 decimals having been allotted to the shares of the plaintiff and his mother Phulkumari.
6. Phulkumari died in 1373 B. S. and on her death the plaintiff filed another suit for partition being Title Suit No 74 of 1967 in respect of the properties left by her including 2/½ decimals of land out of the western 12/½ decimals of the suit plot, which was not included in the previous suit by mistake. In the said suit, which was decreed in the preliminary form on November 18, 1968 in presence of the present defendant no. 1 Gadadhar and his father Gobardhan (defendants nos. 2 and 1 respectively in the said suit) and ex parte against the rest, the plaintiff got 2/½ decimals of land cut of 7/½ decimals from the western half of the suit-plot 5 decimals belonging to his mother and 2/½ decimals left out by mistake in the previous suit) and in that way he became owner to the extent of 7/½ decimals of land out of the western 12/½ decimals of the suit plot, since in the first suit for partition he got 5 decimals and in the second suit 2½ decimals. The remaining land measuring 5 decimals was purchased by the defendant no. 1 Gadadhar and the defendant no. 6 Lalmohan from Santosh (defendant no, 2), Sunil (defendant no. 3), Paribala (defendant no. 4) and Sami Mandalani (defendant no. 5) by registered deeds. The defendant no. 1 made his purchases between June 26, 1967 and September 5, 1967 and the purchase made by the defendant no. 6 was dated May 27, 1967.
7. In the instant suit the plaintiff has claimed his preferential right to purchase the 5 decimals of land out of the western half of the suit-plot which the defendants nos. 1 and 6 have purchased from his other coheirs.
8. The defendant no. 1 contested by filing a written statement. The defence inter alia was that the suit was bad in the absence of proper description of the land sought to be pre-empted. Accord
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