The expression "immovable property" in Section 22(1) of the Hindu Succession Act, 1956 includes agricultural land.

JUDGMENT :

B.N. Dash, J. - The defendants 11 and 12 are in appeal against the decision of the appellate Court modifying the judgment and decree passed by the trial Court in a suit in which the plaintiffs claimed for partition and allotment of their shares and also to purchase the share of their brother (defendant No. 9) which had been alienated, in exercise of their right u/s 22 of the Hindu Succession Act, 1956 (herein- after to as 'the Act')

2. In order to know the relationship of the plaintiffs with defendants 9 and 10 and also for an easy grasp over the dispute between the parties, the following genealogy may be usefully noted :

Parikhita Das (dead)

|

-------------------------

| |

Gopal Bhikari (alive)

(died in 1970) |

| |

----------------------------- Ramachandra

| | | (D. 10)

Bhagaban Bishnumohan Harekrushna

(P. 1) (P. 2) (P. 3)

3. Plaintiff's case is that their father along with Mohan Das (father of defendants 1 to 5). Saturi Mallik (father of defendants and 7) and Guruprasad (ancestor of defendant No. 8) reclaimed Ac. 1.06 decimals of land out of plot No. 2405 under Khata No. 623 of village Padhuan which was a part of the estate of one Mani Dibya. The reclamation was prior to 1927 Settlement and in course of time for the sake of convenience the said co-owners amicably divided the land into 4 shares and separately possessed their respective shares After the death of Gopal, there arose some dissesion in the family for which reason Harekrushna and Ramachandra colluded with each other and executed a registered sale deed dated 25-6-1971 (Ext -A) for RS 2 000/- in respect of 0.13 1/4 decimals of land forming a portion of Gopal's share of the aforesaid acquired land in favour of defend 11 and 12. The defendant No. 10. according to the plaintiff title over the land,conveyed. Being armed with sale defendants 11 and 12 created disturbance in their possession the Plaintiffs instituted the suit for the aforestated relief.

4. Defendants 11 and 12 only have contested the suit In their joint written statement, they averred that the land measuring Ac 106 declaims was reclaimed not by Gopala but by Parikhita along with Mohan. Saturi and Guruprasad and in course of time those co-owners " Partitioned the said property, by metes and bounds and possessed their respective shares. After the death of Parikhita. his share was tioned by metes and bounds between Gopala and Bhikari equally and after the death of Gopal. his share came to be divided amongst the plain tiff and defendant 9 equally by metes and bounda. DefendanJ 10 got the share of Bhikari by an ore, gift. Thus while defendant 9 was 1/24th interest in the entire acquired land, defendant 10 had i/8th of the previous partition by metes and bounds not only the sons and grandsons of Parikhita, the suit for partition was misconceived.

After stating the issues and findings of courts belwo, it is held;

8. The second contention undoubtedly raises an important question regarding the interpretation and scope of Section 22 of the Act. This requires me to determine whether the words immovable property of an intestate occurring therein include agricultural land of an intestate or not . To examine this question, it will be use full to read Section 22(1) of the Act and Entry no. 18 in List II (State List and Entry Nos. 5 and 6 contained in List II ( Concurrent List ) of the Seventh Schedule to the constitution . Section 22(1) of the Act is 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 soley or in conjunction with others, devolves upon two or more heirs specified in Class 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 nave a preferential right to acquire the interest proposed to be trans- ferred.

(2) to (3) xxx xxx xxx