Transfer by co-heir without reference to the other co-heirs, is voidable at their instance.

This second Appeal raises an interesting problem in the application of section 22 of the Hindu Succession Act, The problem has been rendered difficult by the absence of clear legislative guidance. Mulla in his principles of Hindu Law, 12th Edition, remarks on the section:

“The section requires more explicit and stringent language.”

To state the facts of the case in brief: The suit properties, lands with wells, belonged to one Bomma Naicken who, on his death in August 1958, left surviving his widow and four daughters. Under the Hindu Succession Act, as Cass I heirs the four daughters and the widow share the properties equally, each taking a l/5th share. Plaintiffs 1 to 3 in the suit are the three daughters and the 1st defendant is the other daughter. Without reference to her co-heirs, the 1st defendant, under the original of the sale deed Exhibit A-5, dated 11th December, 1959, sold her share in the suit properties to one Pappa Naicken, the 2nd defendant in the suit, for a consideration of Rs. 1,000. The suit has been instituted on 12th July, 1960 in assertion by the plaintiffs of their preferential right to purchase her l/5th share under section 22 ot the Hindu Succession Act. During his lifetime, Bomma Naicken had created a mortgage over his properties for Rs. 2,000 in favour of the 1st plaintiff as evidenced by Exhibit A-1 dated 21st May, 1952. The widow, the other co-heir, had, with reference to her share, executed two sale deeds, Exhibit A-2 in favour of the 1st plaintiff and Exhibit A-3 in favour of the 2nd plaintiff, directing them to discharge the mortgage due by the estate ; and the dispute is confined to the alienation. Exhibit A-5 in favour of the stranger. The Courts below have rejected the plaintiff’s claim and dismissed the suit. The Lower Appellate Court inter alia remarks that section 22 does not provide as to what is to happen if one of the co-heirs sells his or her interest without informing the other co-heirs who have preferential right, the section not providing for any notice being given.

Section 22 of the Hindu Succession Act, 1956 under the Marginal heading “preferential right to acquire property in certain cases” runs thus:

“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, devloves 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 omitted.)

The preferential right to acquire the share of a co-heir who proposes to transfer his interest in the property or business of the propositus is limited to cases of simultaneous succession and devolution of property upon two or more heirs belonging to Class I Obviously, the section has been aimed at reducing to some extent at least the inconvenient effects of simultaneous succession by several persons at one and the same time as members of Class I leading to fragmentation and percelling up, of even small holdings of property. To a degree the section enables a co-heir to retain the property in the family and avoid the introduction of a stranger in the enjoyment of fami