JUDGMENT
M. Sharma, J.
1. This first appeal has been preferred by the defendants against the judgment and decree passed by Assistant District Judge, Shillong in TS (Partition) No. 12(H)/1987.
2. Plaintiffs and defendants are the joint owners of the property in dispute situated at Jail Road, Shillong measuring approximately 9689 sq. ft. covered by plot No. 10(1), pata No, 59 issued by Deputy Commissioner, United Khasi and Jaintia Hill Distict, Shillong dated 19-12-1969. Predecessor in interest of both the parties of the property was Late Raibahadur Dinesh Chandra Das who died on 18-10-(sic). According to Hindu Law of Succession then preventing, property devolved on both the parties as legal heirs and the same was jointly inherited by the successors, including the wife (acquired life interest) of the predecessors in interest who was the mother of the parties. The mother of both the suit parties died in 1973 and the property devolved to the sons and daughter in law who became the owner of the 1/6th share of the entire property. Share of the mother, who also benefited after the Hindu Succession Act came into force in 1956, devolved to the daughters, along with five some of her. After her death the five married daughters became legal heirs each having been l/10th share holder of their mother’s 1/6th share.
3. The two opposite parties as plaintiffs filed the Title suit for partition of their property together with 2/10th of the mother’s l/6th share in the said property jointly to them and by separating the same for their separate and peaceful enjoyment. Their case is that they are living outside Shillong plaintiff Debabrata Das at Tinsukia and plaintiff Satyabrata Das at Calcutta, and due to their absence from Shillong they find difficulty to full enjoyment of their shares in the property, jointly with the defendants shares and accordingly they, asked them to partition the property jointly between the two plaintiffs and separately from defendants. The plaintiffs/ opposite parties included all sisters as defendants by amending the plaint accordingly. The defendants/appellants No. 1, 2 and 3 filed written statement jointly, contested the suit on the ground that, (a) ancestral dwelling being a very small one not capable of partition and entire property should be allowed to be retained by the defendants/appellants who have been living in the property; (b) partition will cause fragmentation of the property which is barred by Govt. orders, for transfer; (c) appellants are maintaining the property since the death of their father by doing all the repairing works, paying taxes, revenues and other charges; (d) appellants have been in exclusive separate possession of the said dwelling house among themselves including mother under mutual arrangements by undertaking all repairs and the same cannot be partitioned to their prejudice, effecting their exclusive possession and enjoyment; (e) that the appellants have been regularly remitting the monthly rent to the opposite parties who have been all along enjoying the usufruct in respect thereof and this is their separate share held and enjoyed under mutual arrangement,
4. During the trial the appellants/defendants filed documents, including a general power of Attorney (Annexure-I) executed by the opposite parties/plaintiffs in favour of one Sunil Ranjan Sen, Advocate, giving power to maintain, power to lease out the, property, mortgage, sale etc. and filed also a copy of the letter (Annexure II) dated 2-11-1987 said to have been written by plaintiff No. 1 to plaintiff No. 3 in respect of plaintiff No. 3’s share in the property and some other documents, such as, challans, municipal receipts, MO receipts etc. The appellants made out a distinct case for themselves in the memo of appeal in this first appeal preferred by them, but the claim in same posture which can be decided by this Court under the same issued framed by the trial Court.
5. The main issue for consideration in this appeal is whether the appellants are entitled to claim preferential claim to purchase the property and whether the property is going to be sold to a stranger of the family? In course of argument. Mr. Das, learned counsel for the appellants submitted very fairly that the appellants had no misunderstanding to their brothers plaintiffs/opposite parties No. 1 and 2, but the general Power of Attorney executed in favour of Mr. S.R. Sen, Advocate, roused their apprehension that after the partition the property claimed by the plaintiffs would be sold to said Mr. Sen and that actual transaction, had been taken place and some amount had already been passed as consideration money between the opposite parties and Mr. Sen which was supported by Annexure-II (letter to plaintiff No. 3). From this letter it can be reasonably apprehended that if the ancestral property, is passed over to a third party, who would be inducted as alien to the inheritance of the ancestral property, would not only cause inconvenience to the appellants but also hurt the sentiments and pride of the entire legatees of late Rai Bahadur, who hold the ancestral property as the citadel of family pride and that their pride and prejudice cannot be allowed to be damaged at any cost. Further it was contended that the appellants at first did not take the case seriously and was ready to accept the partition in an amicable atmosphere. But when the general Power of Attorney came into light and the letter dated 2-11-1987 reinforced their anxiety that the much precious ancestral property is going to be alienated in the name of partition, they were alarmed and took guard to take their stand. It was alleged that by executing the Irrevocable General Power of Attorney (Annexure-I) in favour of Mr. Sen on 26-10-1987 to transfer their undivided share of property with no intention to return to Shillong. Accordingly they (appellants) filed an application under Section 22 of the Succession Act offering their option to prevent the property, so that no stranger can be inducted to the property of late Raibahadur.
6. From the course of argument of the counsel for the appellant and also from the memo of appeal it appears that a strong sentiment has been prevailed against the partition proposal alleging that Mr. Sen, in furtherance of their secret deal, at his risk instituted the Title Suit No. 12(H)/87 in the court of the Asstt. District Judge, Shillong in the name of respondents No. 1 and 2 against the appellants for separate and peaceful enjoyment of their share of the ancestral property with the object of selling their so separated property. Appellants further allegation is that after executing the Irrevocable General Power of Attorney and filing the Title Suit No. 12(H)/87 the respondents left Shillong and respondent No. 1 wrote a letter
to the appellant No. 3 from Tinsukia, his
permanent residence, asking her to join them
and sell the share of her property and under
took the responsibility to arrange the sale on
her behalf assuring that, if she sell her property, she would get Rs. 63,000/- in cash as
consideration even before signing any document. This letter was marked as Annexure-II.
It was further disclosed in that letter that “the
gentleman who had purchased our shares will
be entitled to get portion now occupied by
Madhu with his family as part of our
share…….”
7. On the basis of these facts and circumstances the appellants/defendants filed an application (Annexure-III) under Section 22 of the Hindu Succession Act 1956 read with Section 151, CPC in the aforesaid title suit stating that the transfer or allotment of the said property or any part of it to any stranger, i.e. constituent attorney of respondents Nos. 1 and 2 shall effect the privacy of the family of the appellants and to preserve thier ancestral house they must be allowed to retain the same at the same valuation negotiated and settled as per the letter (Annexure II). Objection was raised by the respondents on the ground that the provisions under Section 22(i) of the Hindu Succession Act was not applicable in the case and that sale of immovable property cannot take place without prior permission of the State Government in normal area of Shillong town and that to obtain relief on that ground regular suit was to be filed. Trial Court refused the said petition (Annexure-III) holding that so far Section 22(i) of the Act is concerned the remedy lies by a regular suit and not by a mere application under Section 22 of the Act (Annexure-IV). Accordingly as a step for precaution appellants filed a suit being Title Suit No. 1 (Sh)/90 for enforcement pf preferential right of the appellants in view of the proposed sell/transfer as evident from the letter (Annexure-II) and against the Irrevocable Power of Attorney (Annexure-1) and also challenged other issues which established the deal. Allegation was that these submissions of the appellants were not considered at all by the trial court. It was further, contended that declared policy of the Government to the effect that the holdings are not be disintegrated/fragmented were not considered. With all these submissions suit for preferential right was filed and also the petition under Section 22 was agitated upon in this appeal also challenging the validity of the order of partition by the trial court.
8. It is to be mentioned that the said Title Suit No. 1/90 is pending before the trial Court. The respondents appeared in the suit and submitted application under Section 10, CPC for stay of the suit which was allowed by the trial court. Appellants also filed an application under Section 10, CPC to stay the proceedings in Title Suit No. 12(Sh)/87 as the matter involved in Title Suit No. 1 (Sh)/ 90 related to right of preference of plaintiffs/ appellants to purchase the undivided shares of defendants/ respondents at the rate quoted by them in the letter (Annexure-II). This petition was rejected and the appellants/plaintiffs in Title Suit No. 1(Sh)/90 filed Civil Revision No. 24(Sh)/92 before the High Court. The pro forma respondent Nos. 1 to 5 through their counsel relinquished and surrendered their shares in favour of the appellants with an intention to keep the ancestral home disintegrated or fragmented by any partition suit.
9. This court after hearing both the revisions together directed simultaneous trial from the stages where they were. Accordingly argument was heard in the earlier suit, i.e. Title Suit No. 12(Sh)/87 which was at argument stage and directed for partition of the property in the way prayed for by the plaintiffs.
10. Keeping in view the details of the appellants case, the point for consideration is whether the appellants are entitled to preferential rights over the property of the co-sharers of the ancestral property, and whether from the facts and circumstances of the case a separate suit is necessary.
11. Admitted position that the appellants and respondents are the Class I inheritors of the predecessors in interest. It is also admitted fact that the property was in two parts — its bigger part consists of six rooms in which the present appellants are residing and the other part of the property, which is a cottage, has been under the occupation of the tenants. The respondent No. 1 settled in Tinsukia and respondent No. 2 in Calcutta. Whenever they come to Shillong they used to stay in the house where appellants are staying at Shillong. It is also admitted by the appellants that in an oral arrangement at the time of their mother’s shradha ceremony, that the ancestral property would be enjoyed by all the brothers and sisters and that the house rent of the cottage would be remitted to the plaintiffs by postal money order regularly month by month on the basis of half and half share and this arrangement was working regularly till the filing of the suit. Necessary minor repair were made by the appellants and the expenditure were deducted from the monthly rent and the balance was remitted. Once proportionate premium for fire insurance was deducted. AH taxes of the premises and repair charges of the main building were and are paid by the appellants. On the basis of the said arrangement the main dwelling house is in occupation and possession of the defendants and the rent realised from the cottage was being sent to the respondents to their respective addresses. The Exts. 1 to 50 are the rent receipts. Exts-51 to 54 are some letters written between the brothers relating to the property. It is also the case of the appellants that no part of the rent from the cottage was utilised for the purpose of repair of the main dwelling house or for payment of taxes etc. Insurance for the entire holding Was taken out and once proportionate premium was deducted from the cottage rent. Admittedly the ancestral property was divided into two part’s – – main spacious house being in the occupation and possession of the appellants and the cottage part in the occupation of the respondent through the tenants. The Ext. 52, the map of the entire property, indicates two parts of the building and cottage situated in two distinct portions separately and independently. The main building is bigger and occupies bigger portion of the entire land with spacious rooms.
12. In para 7 of the written statement the defendant/appellants stated that as per oral agreement between the parties the main dwelling house fell to the share of the appellants (defendants 1, 2 and 3) while cottage is given to the plaintiff to whom rent has been sending regularly. This arrangement as stated therein was “made by mutual arrangement. Learned Counsel for the respondents submitted that in the suit as well as in this appeal plaintiff was ready to accept the cottage part if this is given together with a proportionate adjoining land in the holding, In deposition of the defendant No. 2 it was also stated that he had no objection if the Commissioner allowed it to be partitioned.
13. The appellants in this appeal has
taken the stand that in face of arrangement
made for sell as evident from power of
attorney and the letter the appellants are
legally, equitably competent to exercise their
preferential right of purchase of the undivided
share of the plaintiffs in the ancestral house at
the rate mentioned in the petition under
Section 22(i) of the Hindu Succession Act,
1956. The aim and objection of such legislation is to keep the ancestral dwelling house
intact for peaceful use and occupation, of
property by the co-sharers. It is further; the
stand of the appellants that after partition of
the property co-sharers will not be entitled to
exercise their preferential right of purchase as
envisaged in Section 22(i) of Hindu Succession Act, and therefore, the petition under
Section 22(i) of the Act ought to be considered in this appeal itself.
14. Issue No. 9 deals with the claim of the appellants regarding the preferential claim The appellants, are out to exercise their preferential right of purchase of the undivided share of the plaintiffs against Mr. Sen, who alleged to be the actual purchaser in disguise constituted attorney of the plaintiffs/ respondents. Appellants’ contention was that they do not dispute the right of the co-sharers to partition of property, but partition of shall holding measuring 9689. sq. ft. in area amongst ten co-sharers cannot be conveniently made for peaceful and comfortable use and occupation by all co-sharers of the property. If the entire property is partitioned by metes and bounds each co-sharer, ten in number, will not get even 1800 sq. ft. of land for their separate and convenient use after partition.
15. In deciding the issue No. 9 the court
below came to the decision that there was oral
partition between the co-sharers of the property. In this appeal the appellants denied the
oral partition or agreement for any oral
partition but submitted that there was an oral
arrangement at the instance of the plaintiff/
respondent No. 1 for use, occupation and
enjoyment of the undivided property by the
co-owners.
16. Issued No. 9 was framed as follows, “whether the property is capable of being partitioned in any form?” First point taken by appellants was that there was a bar for fragmentation of the land and produced some documents in support of this. But the court below after examining PW’ 3 one Rasamay Dhar that there was no legal bar in fragmentation of holding. I agree with lower courts view that partition of property does riot mean transfer. (Relied on AIR 1966 SC 432 and AIR 1965 SC 866).
17. As discussed above the admitted position is that the respondents are enjoying and occupying the cottage through tenants and admittedly appellants have by their conduct accepted the fact that, either by oral arrangement, or oral partition, the respondents are possessing that part ,of the property through the tenants and accordingly getting the rent. Respondents have claimed separation of their share in the holding which devolved on them after the death of their father. From the Ext.-52 it appears that the entire holding comprised about 9689 sq. ft. Ext.-52 clearly shows that if the cottage and the main big house is divided into two parts then bigger portion with the main house will comprise about more than 6137 sq. ft’. The plaintiff/respondents claim 2/6th share with 2/10th share of the 1/6th share of their late mother (322 sq. ft. for two). So the total area on the cottage part would be about 3552.62 sq. ft. From the evidence on record both oral and documentary, I hold that the property can conveniently be partitioned. The claim of the plaintiff in the suit for partition of the property in two parts was allowed and decree was accordingly passed for partition of the suit property into two parts.
18. In the evidence of respondent Nos. I and 2 it was categorically denied that there was any proposal to sell the property to a third party or to Mr. Sen. Further the interpretation of the letter (Annexure-II) by the appellants is also denied by the plaintiff/ respondents in their evidence. In the affidavit in opposition the respondents categorically denied these allegations. But even if such proposal or intention is established whether the claim for partition can be evaded. Appellants claimed preferential right after coming to the proposal of transfer of the property of their share to third party from the Annexures-I and II and immediately during the proceeding of the Title suit No. 12 (Sh)/87 filed an application under Section 22(i) of the Hindu Succession Act. As the maintainability of the application was disputed, after hearing of the parties at length, the trial court held that right for preferential claim could be made not by application under Section 22 but must be claimed by a separate suit.
19. Under Section 22 of the Act preferential right can be claimed by heirs of intestate property mentioned in class I on whom the immovable property or business devolves, when any one of them proposes to transfer his interest. The preferential right is to be enforced only at the proposal stage, but right of the heir being a statutory incident of property runs with the land and binds even a stranger who purchase that property, and therefore, the words “propose to transfer” include a complete transfer When an application is filed under Section 22 after the transfer is effected the proper remedy is a separate suit to set aside the sale, as the sale is voidable at the instance of the co-heirs. In this case the appellants had filed a suit. But as the facts established on evidence on record no such transfer has been effected as alleged. In that view of the matter, petition under Section 22 is maintainable in the suit. Though the court below held that claim for preferential right shall be sustainable through a suit the evidence on record proved that there was no such proposal for transfer and this stand was taken by the respondents both in the evidence and in the appeal by filing affidavit. There-fore, I hold that the application under Section 22 of the case is sustainable in the suit instituted by the plaintiff/respondents.
20. The main object of Section 22 is to prevent the heirs other than the transferor from being compelled to be in joint enjoyment of property with a stranger or other person with whom they, do not wish to associate themselves. Respondents in this case did not propose to transfer property as transpires from the stand taken in the suit and in the appeal. In this case the intestate property is two dwelling houses in a distinct and separate property which is capable of partition. Therefore, the claim for preferential right is not sustainable from the facts and circumstances of the case.
21. Mr. B. Das, learned counsel for the appellants fairly submitted that the other issues were not pressed as the appellant is pressing the issue No. 9, to be decided by this court to consider the preferential rights of the appellants. Mr. Sen, learned counsel for the respondent also expressed the same view.
22. In view of my above discussion I hold that the respondents/plaintiffs claim was for partition of the intestate property of their father in two parts. These two parts are existing as distinct and can be conveniently partitioned. One, part consisting of 2/6th share plus 2/10th share of their mother’s 1/6th share jointly to the two respondents and the rest of the property to the appellants and pro forma respondents Nos. 1 to 5. I further hold that the Appellant (petitioner) cannot claim preferential right under Section 22 of the Act till the property is proposed to be sold or when the property for partition is distinct and separate and independent.
23. In the result the appeal is dismissed.