The court ruled that under Section 22 of the Hindu Succession Act, claims of preferential rights to purchase property are valid even post-partition if proper procedures are followed.

CAV ORDER

(PER: THE HON'BLE MR. JUSTICE G BASAVARAJA)

Heard the arguments of learned counsel for petitioner and learned counsel for respondent No.3.

2. The petitioner has preferred this revision petition against the order dated 10.08.2022 passed by the I Additional Senior Civil Judge, Gokak, on Issue Nos.3 and 5 in O.S.No.313/2020.

3. Brief facts leading to this revision petition are that the plaintiffs/respondents No.1 to 5 have filed suit for declaration that the plaintiffs have preferential right to purchase the suit schedule property and to declare that the sale deed dated 28.07.2020 executed by defendants No.2 and 3 in favour of defendant No.4 is void and in contravention of Section 22 of the Hindu Succession Act , 1956. The defendants appeared and denied the entire averments made in the plaint and contended that the suit is not maintainable after partition and further contended that the Court fee paid is not proper and hence, sought for dismissal of the suit.

4. Based on the pleadings, the trial Court framed as many as 07 issues. Out of them, Issue Nos.3 and 5 were treated as preliminary issues. Having heard the arguments on preliminary issues, the trial Court has answered Issue Nos.3 and 5 in the negative. Being aggrieved by this order, the revision petitioner has preferred this revision petition.

5. Learned counsel for the revision petitioner would submit that the impugned order of the trial Court is illegal, perverse, contrary to law, principles of prepositions of law and contrary to the documentary evidence on record. The whole procedure adopted and followed by the trial court is off the records and against the provisions of law. The impugned order is without application of judicious mind and without considering the material documents on record and contrary to law laid down by the Hon’ble Apex Court. The trial Court has given much weight to the say of the plaintiffs and has brushed aside the facts and circumstances of the case, which has vitiated the entire proceedings and contrary to the settled principles of law, the trial Court has committed error in law by misreading the plaint. Whereas, the respondents have filed suit for declaration and injunction claiming preferential right to purchase the suit schedule property under Section 22 of the Hindu Succession Act . The trial Court has erred in not considering that during the lifetime of Adiveppa, partitioned R.S.No.55 between the sons i.e. Basappa, Hanmant, Ramappa and Gurappa got partitioned, got 02 strips of land which are measuring 04 acres 10 guntas and 02 acres 04 guntas and said strip of lands measuring 04 acres 10 guntas and 02 acres 04 guntas are fallen to the share of Basappa/defendant No.1 and were numbered as R.S.Nos.55/2 and 55/6. The name of plaintiff and defendant No.1 came to be mutated. Hence, after partition the suit seeking preferential right under Section 22 of the Hindu Succession Act , 1956 is not maintainable. The trial Court erred in not considering that the plaintiff ought to have paid the Court fee under Section 31 of the Karnataka Court Fees and Suit Valuation Act . The trial Court has not assigned any judicious reasons for answering Issue Nos.3 and 5 in the negative and sought for allowing this petition.

6. To substantiate his arguments and the contentions, learned counsel for the petitioner has relied on the following decisions.

i) Judgment of Hon’ble Supreme Court in Bhagirathi Chhatoi vs. Adikanda Chhatoi and others , reported in AIR 1988 Orissa 285

ii) Judgment of Hon’ble Supreme Court in Krishnapada Roy alias Saha and another vs. Parimal Chandra Saha and another , reported in AIR 2000