Let us first see the provisions of the Transfer of Property Act 1882 and the Hindu Succession Act 1956.
Section 22 of The Hindu Succession Act 1956
Section 22 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 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 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.- In this section, “court” means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may, by notification in the Official Gazette, specify in this behalf.”
Smt. Laxmi Debi v. Surendra Kumar Panda and Others
by the High Court of Orissa.
In this case the submission that Section 22 of the Act would not cover succession in respect of agricultural lands was rejected.It was observed and held that “It is clear that the Parliament had omitted the phrase “save as regards agricultural land” from item No. 5 of the Concurrent List in order to have a uniform personal law for Hindus throughout India, and accordingly, it necessitated the enlargement of Entry No. 5. We have no doubt, therefore, that in view of the change in law, the Act will apply to agricultural lands also, and the decision in AIR 1941 FC 72 (K) would no longer hold good.”
The High Court of Judicature at Allahabad, in Smt. Prema Devi vs. Joint Director of Consolidation (Headquarter) at Gorakhpur Camp and Ors. held:- In List 2, Entry No. 18 is as follows:– “Land, that is to say, right in or over land, land tenures including the relation of landlord and tenant, and the collection of rents; transfer and alienation of agricultural land; land improvement and agricultural loans; colonization.” This entry which is in the exclusive jurisdiction of the State Legislature is in the widest term. All laws relating to land and land tenures are therefore, within the exclusive jurisdiction of the State Legislature. Even personal law can become applicable to land tenures if so provided in the State Law, but it cannot override State legislation”.
The decisions rendered by various High Courts show divergent views on the issue. Some High Courts have held that the provisions of Section 22 of the Act would apply to agricultural lands and in the process have followed the reasoning that weighed with the Orissa High Court in Laxmi Debi . On the other hand, some High Courts have held the contrary
Finally In Babu Ram vs Santok Singh Supreme Court considered the matter with the following three illustrations:-
- a) Three persons, unrelated to each other, had jointly purchased an agricultural holding, whereafter one of them wished to dispose of his interest. The normal principle of pre-emption may apply in the matter and any of the other joint holders could pre-empt the sale in accordance with rights conferred in that behalf by appropriate State legislation.
- b) If those three persons were real brothers or sisters and had jointly purchased an agricultural holding, investing their own funds, again like the above scenario, the right of pre-emption will have to be purely in accordance with the relevant provisions of the State legislation.
In this case questions regarding the scope and applicability of Section 22 of the Hindu Succession Act, 1956 (hereinafter referred to as the Act), and particularly, whether preferential right given to an heir of a Hindu under said Section 22 will be inapplicable if the property in question is an agricultural land.
Section 44 in The Transfer of Property Act, 1882
- Transfer by one co-owner.—Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.
Previously Partition Act, of 1893 was in force.
A question came up before Supreme Court whether Section 4 of the Partition Act, 1893 (hereinafter referred to as ‘the Act’) can be pressed in service in execution proceedings arising out of a final decree for partition, by one of the co-owners of a dwelling house belonging to an undivided family against a stranger transferee of a share therein belonging to another erstwhile co-owner of the said dwelling house.
Let us see provisions of Section 4 of the Partition Act 1893
Section 4 in The Partition Act, of 1893
- Partition suit by the transferee of share in dwelling-house.—
(1) Where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf.
(2) If in any case described in sub-section (1) two or more members of the family being such shareholders severally undertake to buy such share, the court shall follow the procedure prescribed by sub-section (2) of the last foregoing section.
Mahipatsinh Himatsinh Jadeja vs Pannalal Khemchand Modi And Ors.
Dorab Cawasji Warden vs Coomi Sorab Warden & Ors
Essential ingredients of Para-2 of Section 44 of the Transfer of Property Act, are following:
(i) Section 44, Para 2 of the Transfer of Property Act, which came into force in 1882, conferred a privilege on the shareholders of a dwelling-house, belonging to an undivided family, by providing that a transferee of a share of the dwelling-house will not be entitled to joint possession or other common or part enjoyment of the house so long as the undivided status of the family continued. The principle of subrogation, which is embodied in Section 44 of the Transfer of Property Act, is not-extended to a dwelling-house in all its amplitude. Section 4 of the Partition Act is merely an extension of that privilege.
(ii) The property in question, therefore, must be (a) belonging to an undivided family and (b) an attempt is being made to transfer such share to an outsider by another member of the family must be discouraged as an outsider in a dwelling-house belonging to an undivided family would cause irreparable hardship and would frustrate the object of protecting the members of undivided family in a dwelling-house to their detriment.
(iii) The principle underlying the provision in para 2 of Section 44 is that it is inequitable to permit a stranger to intrude upon a privacy of an undivided family residence. But Section 44 of the Transfer of Property Act left the stranger purchaser free to have his share carved out in a suit for partition. It is this mischief that was sought to be prevented by Section 4 of the Partition Act. The object underlying Section 4 aforesaid is to prevent the transferee of a share in the family house, who is an outsider, from forcing his way into the dwelling-house in which other members of his transferor’s family have a right to live.
(iv) The object of this provision is to prevent the intrusion of strangers into the family residence which is allowed to be possessed and enjoyed by the members of the family alone in spite of the transfer of a share to a stranger. The factual position then is that it is still an undivided dwelling-house, the possession and enjoyment of which are confined to the members of the family, the stranger transferee being debarred, by law, from exercising his right to joint possession which is one of the main incidents of co-ownerships of property. Such a dwelling-house can still be looked upon as a dwelling-house belonging to an undivided family, because the members of the family have not divided it amongst themselves and are in sole enjoyment and possession of it to the exclusion of the stranger transferee who has only a right to partition. And so long as the house has not been completely alienated to strangers as was the case in. Vaman Visht Basudeo Norbhal, successive transfers by other co-sharer members of the family do not alter the factual position in this respect, because the remaining member or members of the family have the right to hold exclusive possession to the exclusion of the stranger alienees. So long as that situation lasts, the dwelling-house continues to be a dwelling-house belonging to an undivided family.
(v) However, in case partition of an undivided dwelling-house has taken place amongst the members or the possession of different part of undivided dwelling-house is in every respect separate and not joint, it cannot be said to be an undivided dwelling-house and secondly the members of the family have no right to seek protection under Section 44(2) of the said Act.
30 DECEMBER 2022