An application under Section 22(2) of the Hindu Succession Act, 1956, is not maintainable after the transfer has been effected. It is maintainable only at a stage where the transferor heir proposes to transfer his or her interest in the property.

Headnote:
HINDU SUCCESSION ACT, 1956 - SECTION 22(1) AND 22(2) - APPLICATION UNDER SECTION 22(2) - MAINTAINABILITY - TRANSFER ALREADY EFFECTED - NOT MAINTAINABLE - CONVERSION OF APPLICATION INTO SUIT - VALUATION AND COURT-FEES - PREMATURE ADJUDICATION.
Fact of the Case:

The revision petitioner filed an application under Section 22(2) of the Hindu Succession Act, 1956, seeking to enforce her preferential right to acquire a shop sold by her brother to a third party. The lower court held that the application was not maintainable under Section 22(2) but allowed its conversion into a suit, determining the proper valuation and court fees payable.
Finding of the Court:

The court held that an application under Section 22(2) of the Act is not maintainable after the transfer has been effected. It is maintainable only at a stage where the transferor heir proposes to transfer his or her interest in the property. The court further held that the lower court's determination of valuation and court fees was premature and should be set aside.
Issues: 1. Whether an application under Section 22(2) of the Hindu Succession Act, 1956, is maintainable after the transfer has been effected? 2. Whether the lower court erred in determining the valuation and court fees payable on the suit before the defendant had entered into his defense?
Ratio Decidendi: 1. Section 22(1) of the Hindu Succession Act, 1956, creates a preferential right to acquire property in certain cases, but it applies only to contemplated transfers, not concluded transfers or transfers already effected. 2. Section 22(2) of the Act provides a cheap and speedy remedy for determining the consideration for which an interest in the property or business of the deceased may be transferred under the section, but it does not create an independent right wholly independent of that created by sub-section (1). 3. The remedy for a co-heir whose right under Section 22(1) has been violated by a transfer to a stranger is to seek the intervention of the court to enable them to acquire the right transferred away in violation of the section, which can be done through a regular civil suit.
Final Decision: The revision petition was partly allowed. The part of the impugned order that held the application under Section 22(2) not maintainable was upheld, while the part that determined the valuation and court fees payable on the suit was set aside as premature.

Judgement Key Points

Certainly. Here are the key points from the provided legal document:

An application under Section 22(2) of the Hindu Succession Act, 1956, is not maintainable once the transfer of property has been completed. It is only applicable at the stage when the transferor heir proposes to transfer their interest in the property (!) (!) .
The purpose of Section 22 is to provide a preferential right to other heirs to acquire the interest proposed to be transferred by a co-heir, but this right is only exercisable before the transfer is effected, i.e., during the contemplation or proposal stage, not after the transfer has been completed (!) (!) .
The remedy for an heir whose right has been violated by a transfer to a stranger is to initiate a civil suit to seek the intervention of the court, rather than an application under Section 22(2), especially when the transfer has already been completed (!) (!) .
The court emphasized that an application under Section 22(2) cannot be regarded as maintainable after the transfer has been effected. It is only appropriate when the transferor heir is proposing to transfer their interest (!) .
The order of the lower court, which converted the application into a suit and determined the valuation and court fees prematurely, was found to be incorrect. These issues should be addressed only after the suit is properly instituted and the defendant has entered their defense (!) (!) .
The court partly allowed the revision, setting aside the portion of the order related to valuation and court fees, as these are premature at this stage. Such matters will be determined when the suit proceeds and the defendant responds (!) .
The court upheld the view that the primary remedy under the Act is to seek a civil suit for enforcement of rights, not an application under Section 22(2), once the transfer has been completed (!) .
The decision clarifies that the legal process and remedies are intended to be straightforward and efficient, and that the specific procedural rules should be followed, particularly regarding the timing of applications under the Act (!) (!) .

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Judgement

ORDER :- This revision is directed against order dated 28-11-1977 passed by the Additional District Judge, Sheopur whereby an application submitted by the revision applicant under Section 22(2) of the Hindu Succession Act. 1956, (Act No, 30 of 1956), (hereinafter referred to as the Act'), has been allowed for conversion of the application into a suit with added direction to pay ad valorem court-fees corresponding to the sale price i.e. Rs. 35,000/-.

2. Facts essential for decision of this revision are as under :-

That Shri Manik Chand, father of the applicant and non-applicant No. 2, died intestate on 6-9-1979. After his death certain immovable properties left by him were partitioned between the applicant and the non-applicant No. 2 and other heirs of Manik Chand. On 17-4-1975, the non-applicant No. 2 sold a shop under a registered sale deed for Rs. 35,000/- in favour of Hanuman Prasad non-applicant No. 1. Purporting to enforce preferential right to acquire the property the applicant herein submitted an application under Section 22 of the Act before the Additional District Judge Whereby in exercise of the right created by Section 22 the applicant prayed for a direction to reconvey the suit shop to her. This application was opposed by the non-applicant No. 1 on the ground that the application is not maintainable under Section 22(2) of the Act.

3. The lower Court framed certain issues. Out of them. Issues Nos. 4, 5 and 7 are as under:-

"4, Whether this Court is competent to hear this application ?

5. Whether the application under Section 22(2) of Hindu Succession Act is maintainable ? .

7. (A) Whether the applicant has valued the application properly?

(B) If not, what is the correct valuation?"

These issues were treated as preliminary issues, and arguments were heard. It appears that at the stage of arguments, the applicant submitted an application for conversion of her application under Section 22(2) of the Act into a suit. By the impugned order the application submitted by the revision-applicant has been held to be not maintainable under Section 22(2) of the Act. However conversion of the application into a suit has been ordered. It has been further held that proper valuation of the suit is Rs. 35,000/- and that ad valorem court-fees is payable thereon. Accordingly deficit court-fees has been ordered to be paid. The present revision is directed against this order.

4. In this revision Shri R.D. Jain learned counsel for the applicant, contends (i) that the application is maintainable under Sec.22(2): and (ii) that in any event, that part of the impugned order which concerns itself with the determination of valuation and court-fees payable on the suit is without jurisdiction.

Shri R.K. Patni, learned counsel for the non-applicant, argued in support of the impugned order.

5. Having heard the learned counsel for the parties. I have come to the conclusion that the revision deserves to be partly allowed.

6. To take up first the contention with regard to the maintainability of the application under Section 22(2) of the Act. Section 22 which creates preferential right to acquire property in certain case, runs as under :-

"22(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

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Judicial Analysis

1980 Supreme(MP) 8

Madhya Pradesh High CourtH. G. MISHRAGhewarwala Jain - AppellantVersusHanuman Prasad - RespondentDecided On : 01/07/1980

An application under Section 22(2) of the Hindu Succession Act, 1956, is not maintainable after the transfer has been effected. It is maintainable only at a stage where the transferor heir proposes to transfer his or her interest in the property.

Judicial Analysis

Madhya Pradesh High Court
H. G. MISHRA
Ghewarwala Jain - Appellant
Versus
Hanuman Prasad - Respondent
Decided On : 01/07/1980