Dismissed

G. Jayaraman v. R. Vasudevan

Madras HC27 Sept 2021SA/44/2008

Case brief

AI extract

What is this about?

The High Court of Madras dismissed the second appeal filed by defendants asking for a right of pre-emption. The Court held that since the appellants filed no separate suit to enforce the right and the transferor and transferee did not initiate partition proceedings, the statutory conditions for pre-emption under the Hindu Succession Act were not met.

What did the court decide?

Second appeal dismissed with no costs; judgments and decrees of courts below upheld.

G. Jayaraman Vs R. Vasudevan — Succession and Inheritance | Madras HC (2021)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED : 27.09.2021

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CORAM

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THE HONOURABLE MRS.JUSTICE R.HEMALATHA

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S.A.NO.44 OF 2008

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1. G.Jayaraman ...1

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2. Shanmuganathan ...2

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3. Balashanmugavel (died) 4. Gurusamy Nadar

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...1st Appellant/1st Appellant/10th Defendant

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...2nd Appellant/2nd Appellant/14th Defendant
3. Balashanmugavel (died)
4. Gurusamy Nadar
...3rd Appellant/12th Respondent/9th Defendant
5. Sasirekha, B.

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6. Venkatraj, B.

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...5th & 6th Appellants/
LRs of the Deceased 6th Defendant

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Appellants 5 and 6 brought on record as LRs of the deceased 3rd
appellant viz., Balashanmugavel vide court order dated
19.07.2021 made in CMP No.10728 of 2021.

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Vs.

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1. R.Vasudevan 2. Ravikumar 3. Viswanathan ...Respondents 1 to 3/Respondents 1 to 3/Plaintiffs

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4. U.S. Arumugam
...4th Respondent/4th Respondent/1st Defendant
5. Vadivu (deceased)
6. Gurulakshmi
...6th Respondent/6th Respondent/3rd Defendant
7. M. Balasubramaniam
...7th Respondent/7th Respondent/4th Defendant
8. Uma alias Amirthavalli
...8th Respondent/8th Respondent/5th Defendant
9. Thilagavathi
...9th Respondent/10th Respondent/7th Defendant

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https://hcservices.ecourts.gov.in/hcservices/

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10. Vijayalakshmi

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...10th Respondent/11th Respondent/8th Defendant

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11. Danalakshmi
12. Bhoopathi
13. Guruchinnappa
...Respondents 11 to 13/13 to 15th Respondents/
11 to 13th Defendants

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Prayer : Second Appeal filed under Section 100 of CPC, 1908
against the decree and judgment dated 14.03.2006 passed in A.S.
No.8 of 2005, on the file of the Principal District Judge,
Erode, upholding the decree and judgment dated 10.08.2004
passed in O.S. No.95 of 2002, on the file of the Subordinate
Court, Tharapuram.

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JUDGMENT

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The appellants in the present second appeal are the
defendants 6,9,10 & 14 in O.S.No.95 of 2002 on the file of the
Subordinate Judge, Dharapuram, Thiruppur District.

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 2. For the sake of convenience, the parties are
referred to as per their ranking in the trial court and in
appropriate places, their ranking in the present appeal would
also be indicated.

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 3. The case of the plaintiffs is as follows:

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The suit property originally belonged to Palaniappa
Chettiar through a registered sale deed dated 02.05.1918
(Ex.A1). Palaniappa Chettiar had six children namely
Chinnammal, Kamatchi Ammal, Muthu Raja, Gurusamy, Chinnasamy and
Valliammal. The first daughter Chinnammal and her husband
Marudamuthu died intestate without any issues. Palaniaapa
Chettiar died on 08.04.1967 intestate and his wife pre-deceased
him. Therefore the suit property devolved upon Kamatchi Ammal,
Muthu Raja, Gurusamy, Chinnasamy and Valliammal, each entitled
to 1/5 share in the suit property. The plaintiffs purchased 1/5
undivided share from Valliammal on 27.10.1999 through a

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registered sale deed (Ex.A2). He also purchased 1/15 share from
Rajaratinammal and others through a registered sale deed dated
29.08.2001(Ex.A3). Before purchasing the same, the first
plaintiff was a tenant in the suit premises by running a shop.
Since the plaintiffs could not enjoy the suit property in common
with the other legal heirs of late Palaniappa Chettiar, they
demanded for amicable partition from the defendants by issuing a
notice dated 09.10.2001 (Ex.A4). The defendants 9,10,13 & 14
sent a reply with a false allegation that the suit property was
purchased by Palaniappa Chettiar from out of the income derived
from his ancestral properties and therefore, the sale in favour
of the plaintiffs is not valid. The plaintiffs therefore, filed
a suit for partition of the suit property into 15 equal shares
and to allot 8 such shares to them.

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4. The suit was resisted by the defendants 2,5,6,7,9,10
&14 on the following grounds:

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(1)The suit property was purchased from out of the income derived from the ancestral properties of Palaniappa Chettiar.

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(2)The sale deeds Ex.A2 and Ex.A3 executed by Valliammal and the children of Kamatchiammal are not valid as the daughters cannot claim any right in the ancestral properties.

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(3)Since no partition is effected among the co-sharers, the co-sharers are entitled to a right of pre-emption in the dwelling house which is the suit property.

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5. On the basis of the above pleadings, the trial court
framed necessary issues and after full contest decreed the suit.
A preliminary decree dated 10.08.2004 for partition was passed
dividing the suit property into 15 equal shares and to allot 8
such shares to the plaintiffs on the following grounds:

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(1)The defendants did not adduce any
documentary evidence to show that the suit
property was purchased from out of the
income derived from the ancestral properties
of late Palaniappa Chettiar.

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(2)In fact the defendants did not prove the existence of any ancestral properties.

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(3)The defendants did not also exercise their right to purchase the shares sold in favour of the plaintiffs.

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6. Aggrieved over the same, the defendants 10 & 14 filed
an appeal in A.S.No.8 of 2005 before the Principal District
Judge, Erode. The Principal District Judge, Erode after
analyzing the evidence on record upheld the findings of the
Trial Court.

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7. Aggrieved over the same, now the second appeal is
filed by the appellants.

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8. Notice of motion was ordered in the second appeal and
after several adjournments the matter is posted today for final
hearing.

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9. Mr.T.S.Baskaran, learned counsel appearing for the
appellants fairly conceded that both the Courts below had
rightly held that the suit property is a self acquired property
of late Palaniappa Chettiar. However, he contended that as per
Section 22 of the Hindu Succession Act, the appellants have the
right of pre-emption to purchase the shares which were sold to
the strangers (the plaintiffs herein). His specific contention
is that both the Courts below did not deal with this aspect
properly.

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10. Per contra Mr.Raghavachari, learned counsel for the
respondents contended that since the decree and judgment was not
challenged by the 6th defendant (since deceased) and the 9th
defendant, they cannot file the second appeal seeking for a
right of pre-emption. He would also contend that the right of
pre-emption should be exercised within the period of one year as
per Article 97 of the Limitation Act,1963 and therefore the
appellants have lost their right.

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11. The Trial Court had clearly held that the defendants
did not exercise their right of pre-emption to purchase the
shares sold in favour of the plaintiffs. It is pertinent to

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mention that the first appeal was filed by the defendants 10 &
14 who are the sons of Gurusamy Nadar (the 9th defendent in the
suit). The first appellate Court had observed in his judgment
dated 14.03.2006 thus;

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"The suit property is the self acquired property
of Palaniappa Chettiar. As such the defendants
10 and 14 cannot claim any right as co-parceners
when their father the 9th defendant Gurusamy is
still alive. At best, the defendants 10 and 14
viz., the appellants herein can claim share in
the suit property only after the death of
defendant No.9 Gurusamy. Till then, they are not
entitled for any right in the suit property. As
such they cannot construed as co-heirs and hence
they are not entitled for the right of pre-
emption as contemplated under Section 22 of Hindu
Succession Act. Since it is not disputed that
the father Gurusamy is alive, and since we have
decided in point 1 that the property is the self
acquired property of Palaniappa Chettiar then the
present appellants/defendants 10 and 14 cannot be
construed as co-heirs along with Valliammal and
the heirs of Chinnasamy from whom the plaintiffs
have purchased a portion of the suit property
through Ex.A.2 and A.3. sale deeds.

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Until defendant No.9 is alive and if at
all they want to adjudicate, they have no agitate
by filing a separate suit and they cannot agitate
the sale effected by Valliammal and the heirs of
Chinnasamy by seeking recourse to Section 22 of
Hindu Succession Act."

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12. Section 22 of the Hindu Succession Act reads as
follows:

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22. Preferential right to acquire property in
certain cases.

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"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

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https://hcservices.ecourts.gov.in/hcservices/

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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.

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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.

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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."

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As per Section 22 of the Hindu Succession Act, the
conditions necessary for invoking the same is,

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An interest in any immovable property of an
intestate or in any business devolves upon
two or more heirs specified under clause 1
of the schedule, any one of such heirs
proposes to transfer his / her interest in
the property or business, in that case, the
other heirs shall have preferential right to
acquire the interest proposed to be
transferred.

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13. The object of Section 22 (1) is that in cases where
by virtue of intestate succession under the Act any interest in
an immovable property has devolved upon two or more heirs
specified in clause I of the schedule and any one of such heirs
proposes to transfer his interest in the property, the other
heirs should have a preferential right to acquire the interest
which is so proposed to be transferred.

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14. In the decision in Gautam Paul Vs. Debi Rani Paul
[(2000(8) SCC 330] it has been held thus,

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"There is no law which provides that co-sharer
must only sell his/her share to another co-
sharer. Thus strangers/outsiders can purchase
shares even in a dwelling house.Section 44of
the Transfer of Property Act provides that the
transferee of a share of a dwelling house, if
he/she is not a member of that family, gets no
right to joint possession or common enjoyment of
the house. Section 44adequately protects the
family members against intrusion by an outsider
into the dwelling house. The only manner in which
an outsider can get possession is to sue for
possession and claim separation of his share. In
that case, Section 4of the Partition Act comes
into play. Except forSection 4of the Partition
Act there is no other law which provides a right
to a co-sharer to purchase the share sold to an
outsider. Thus before the right of pre-emption
under Section 4is exercised, the conditions laid
down therein have to be complied with. As seen
above, one of the conditions is that the outsider
must sue for partition.Section 4does not
provide the co-sharer a right to pre-empt where
the stranger/outsider does nothing after
purchasing the share. In other words,Section
4is not giving a right to a co-sharer to pre-
empt and purchase the share sold to an outsider
anytime he/she wants. Thus even though a liberal
interpretation may be given, the interpretation
cannot be one which gives a right which the
legislatures clearly did not intend to confer.
The legislature was aware that a partition Suit

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would result in a "decree for partition". The
legislature only provided for such right when the
"transferee sues for partition". The intention of
the legislature only provided for such right when
the "transferee sues for partition". The
intention of the legislature is clear. There had
to be initiation of proceedings or the making of
a claim to partition by the stranger/outsider.
This could be by way of initiating a proceeding
for partition or even claiming partition in
execution. However, a mere assertion of a claim
to a share without demanding separation and
possession (by the outsider) is not enough to
give to the other co-sharers a right of pre-
emption. There is a difference between a mere
assertion that he has a share and a claiming for
possession of that share. So long as the
stranger-purchaser does not seek actual division
and possession, either in the suit or in
execution proceedings, it cannot be said that he
has sued for partition."

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In the decision in Srinivasamurthy, P. Vs Leelavathi,P.
(2000(CTC325), this Court has held that since Section 22 does
not provide for any special procedure for seeking the said
remedy, the co- sharer has to seek enforcement of such right
under Section 22 (1) by way of a regular civil suit before a
competent Court.

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15. As far as the present case is concerned, the
appellants, till date, did not file any separate civil suit for
exercising their right under Section 22 of the Hindu Succession
Act. Even in the suit filed by the respondents/plaintiffs
seeking for a partition of their shares in the suit property,
they did not file any petition under Section 4 of the Partition
Act, 1893. Article 97 of the Limitation Act provides one year
limitation for claiming such a right and the defendants having
failed to exercise their right under Section 22 of the Hindu
Succession Act in the manner known to law, cannot claim such a
right in the present second appeal. I therefore find no
substantial question of law involved in the present second
appeal.

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 16. In the result,

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i. the second appeal is dismissed. No costs.

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ii.the decree and judgment dated 14.03.2006 passed in A.S. No.8 of 2005, on the file of the Principal District Judge, Erode, and the decree and judgment dated 10.08.2004 passed in O.S. No.95 of 2002, on the file of the Subordinate Court, Tharapuram, are upheld.

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Sd/-

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Assistant Registrar(CS-IX)

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// True Copy //

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Sub Assistant Registrar

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bga

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To

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1. The Principal District Court, Erode.

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2. The Subordinate Court, Tharapuram.

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Copy To

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 The Section Officer,
 VR Section,
 High Court, Madras.

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+1cc to Mr.T.S.Baskaran, Advocate, S.R.No.50297

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+1cc to Mr.V.Raghavachari, Advocate, S.R.No.49988

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S.A.No.44 of 2008

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GJ(CO)
RLP(09/11/2021)

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G. Jayaraman v. R. Vasudevan

Case brief

What is this about?

What did the court decide?

G. Jayaraman v. R. Vasudevan

Case brief

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What did the court decide?

What the court decided

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