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2007 Supreme(MP) 310
2007(2) JLJ 347
A.K. Shrivastava, J.
Vishwanath Gupta and others v. Virendranath Agrawal
and others
First Appeal No.254 of 1995 (Jabalpur) : against the
judgment and decree passed by IV Additional District Judge, Sagar,
passed in Civil Suit No. 1-A of 1990; Decided on 20.3.2007.
M.L. Jaiswal with U.S. Rajput for appellants;
Atulanand Awasthy for respondents.
Headnote:(1) Hindu Succession Act, 1956 -- S.22(1) -- alienation of interest in violation of this provision -- is not void but viodable at the instance of other non-alienating co-heirs -- such alienation is an infringement of the right conferred under.
According to the plaintiff, secretly and without informing and offering to sell the disputed property to plaintiff, defendant No.1 Virendranath sold the disputed property vide registered sale-deed dated 20.11.1986 to defendants No.2 and 3 and the action of defendant No.1 Virendranath is de hors to the condition embodied in registered partition deed dated 8.5.1961 (Ex.P-21). It has been specifically pleaded in the plaint that earlier also plaintiff was ready and willing to purchase the share of defendant No.1 Virendranath and even on the date of filing of the suit he was ready to purchase the said portion. [Para 8
Held : The alienation of his interest by a co-heir in violation of section 22(1) is not void, but is voidable at the instance of other non-alienating co-heirs ... If a co-heir transfers his interest in violation of section 22(1), the remedy of other co-heirs to acquire transferred interest is by way of suit and such suit is maintainable and the transfer made by co-heir of his share is voidable and not void. Thus, the transfer made by defendant No.1, who is a co-heir, is voidable and the suit can be brought at the instance of other coheirs challenging the alienation to a stranger since it is a voidable transaction. I may further add that it is the sale against the right of co-heirs what would constitute an infringement of the right conferred under section 22(1) of the Act. AIR 1976 Kerala 19 relied on. [Para 17
(2) Hindu Succession Act, 1956 -- S.22 -- heir intending to sell his share in immovable property -- is duty bound to offer the same to other co-heirs -- on their denial, he can sell the same to outsiders. AIR 2000 Mad. 516 relied on. AIR 1981 M.P. 250 distinguished. [Para 22
(3) Evidence Act, 1872 -- S.134 -- statement made in examination-in-chief not cross-examined -- statement on that point would stand unchallenged. [Para 25
¼1½ fganw mÙkjkf/kdkj vf/kfu;e] 1956 && /kkjk 22¼1½ && bl mica/k ds vfrØe.k esa fgr dk vU;laØke.k && ‘kwU; ugha gS fdarq vU; lg&mÙkjkf/kdkfj;ksa dks izsj.kk ij ‘kwU;dj.kh; gS && ,slk vU;laØke.k] bl mica/k ds v/khu iznÙk vf/kdkj dk vfrya?ku gSA
oknh ds vuqlkj] izfroknh Ø-1 ohjsanzukFk us xqIr :i ls fcuk lwpuk ds vkSj foØ; ds fy, izLrko fd, fcuk fookfnr laifÙk jftLVªhd`r foØ;&foys[k fnukad 20-11-1984 }kjk izfroknhx.k Ø-2 vkSj 3 dks foØ; dj nh vkSj izfroknh Ø-1 ohjsanzukFk dk ;g dk;z jftLVªhd`r foHkktu&foys[k fnukad 8-5-1961 ¼izn‘kZ ih&21½ esa lfEefyr ‘krZ ds ckgj gSA okni= esa ;g fofufnZ"V :i ls vfHkopfur gS fd igys Hkh oknh izfroknh Ø-1 ohjsanzukFk dk va‘k Ø; djus ds fy, rS;kj vkSj jtkean Fkk vkSj okn Qkby fd, tkus dh rkjh[k dks Hkh og mDr Hkkx Ø; djus ds fy, rS;kj FkkA ¼iSjk 8
vfHkfu/kkZfjr % /kkjk 22¼1½ ds vfrØe.k esa lg&mÙkjkf/kdkjh }kjk mlds fgr dk vU; laØke.k ugha fd;k gS] ‘kwU;dj.kh; gSA ---- ;fn dksbZ lg&mÙkjkf/kdkjh /kkjk 22¼1½ ds vfrØe.k esa viuk fgr varfjr djrk gS] varfjr fgr vftZr djus ds fy, vU; lg&mÙkjkf/kdkfj;ksa dks mipkj okn }kjk gS vkSj ,slk okn pyus ;ksX; gS rFkk lg&mÙkjkf/kdkjh }kjk fd;k x;k varj.k ‘kwU;dj.kh; gS] ‘kwU; ughaA eSa vkxs ;g vkSj tksM+uk pkgw¡xk fd lg&mÙkjkf/kdkfj;ksa ds vf/kdkj ds fo:) foØ; }kjk vf/kfu;e dh /kkjk 22¼1½ ds v/khu iznÙk vf/kdkj dk vfrya?ku gksxkA , vkb vkj 1976 dsjy 19 voyafcrA ¼iSjk 17
¼2½ fganw mÙkjkf/kdkj vf/kfu;e] 1956 && /kkjk 22 && LFkkoj laifÙk esa vius va‘k ds foØ; dk mÙkjkf/kdkjh dk vk‘k; && vU; lg&mÙkjkf/kdkfj;ksa dh mldk izLrko djus ds fy, og drZO;kc) foØ; dj ldrk gSA , vkb vkj 2000 enzkl 516 voyafcrA , vkb vkj 1981 e-iz- 250 izHksfnrA ¼iSjk 22
¼3½ lk{; vf/kfu;e] 1872 && /kkjk 134 && eq[; ijh{kk esa fd, x, dFku dh izfrijh{kk ugha dh xbZ && ml fcanq ij dFku vuk{ksfir cuk jgsxkA ¼iSjk 25
1. This appeal under section 96 CPC has been filed by appellants who are the legal representatives of original plaintiff Jagannath Prasad Gupta, against the judgment and decree dated 20.7.1995 passed by learned 4th Additional District Judge, Sagar in Civil Suit No.1-A/90.
2. The pedigree of plaintiff as pleaded in para 1 of the plaint is as under :
Baijnath Prasad Gupta died on 24.2.1965
|----------------------------|------------------------|-----------------------------|
Ladli Bahu Jagannath Prasad Shambhu Nath Virendranath
(wife died son (plaintiff) died died in the year defendant No.1
in the year during the pendency 1974
1978. of the suit. Appellants
are his LRs.
3. The suit has been filed for declaration that the registered sale-deed dated 20.11.1986 which is the half portion of yellow, red, green and without colour shown in the plaint map and which has been sold by defendant No.1 to defendants No.2 and 3 is illegal and ineffective with a further relief that defendants be restrained from interfering with the possession of the plaintiff and plaintiff may not be dispossessed. In the alternative it has also been prayed that in case defendant No.1 is found to be the owner of half portion of the suit house, it be sold to the plaintiff for a consideration of Rs.1,25,000/- after deducting Rs.1,00,000/- as this amount was incurred by the plaintiff in reconstruction of the house as the same was ablaze in the riots of 1984 on account of assassination of Smt. Indira Gandhi and thus it has been prayed that defendant No.1 be directed to obtain Rs.25,000/- towards consideration and the sale-deed be effected in favour of plaintiff since he (defendant No.1) sold the suit property for a consideration of Rs.1,25,000/- to defendants No.2 and 3.
4. Certain admitted facts which borne out from the record are as under :
(i) On 8.5.1961 vide EX.P-21 registered partition took place between Baijnath Prasad and his sons including plaintiff and defendant No.1 and also Ladli Bahu, wife of Baijnath Prasad;
(ii) the property was owned by one Baijnath Prasad, who died on 24.2.1965;
(iii) the present dispute is in regard to dwelling house only, in which according to the plaint averments and the plaint map, portion shown in yellow colour came in the share of father Baijnath;
(iv) red portion shown in the plaint map fell in the share of Ladli Bahu, wife of Baijnath Prasad;
(v) green portion shown in the plaint map fell in the share of Shambhunath, son of Baijnath Prasad;
(vi) blue portion shown in the plaint map fell in the share of Virendranath (defendant No.1), who is son of Baijnath Prasad;
(vii) Shambhunath died unmarried in the year 1974; and
(viii) Ladli Bahu, wife of Baijnath Prasad died in the year 1978.
On the basis of the pleadings made in the plaint it has been submitted by learned senior counsel Shri M.L. Jaiswal that since Shambhunath, son of Baijnath Prasad Gupta died unmarried, therefore, Ladli Bahu being mother of unmarried son Shambhunath will inherit the property as she being the only heir of Class I to section 8 of Hindu Succession Act, 1956 (in short "the Act"). After the death of Ladli Bahu in the year 1978, the portion of Shambhunath which was inherited by her (Ladli Bahu) would be divided equally and would go to defendant No.1 Virendranath and plaintiff Jagannath Prasad.
5. Baijnath Prasad died on 24.2.1965 and, therefore, yellow portion which he got in the partition in the disputed dwelling house would be inherited by Ladli Bahu being widow, virendranath (defendant No.1), Jagannath Prasad (plaintiff) and Shambhunath being sons equally and thus portion of Baijnath Prasad (Yellow portion) devolved in these four heirs and each of them became owner of 1/4th share. The defendant No.1 Virendranath sold his portion along with the other portion which he inherited in the suit house to defendants No.2 and 3 vide registered sale-deed dated 20.11.1986 (Ex.D-1) for a consideration of Rs.1,25,000/-.
6. According to the plaintiff he is residing in the entire
