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CASE NO.: Appeal (civil)  2893 of 2008

PETITIONER: Ashutosh Chaturvedi

RESPONDENT: Prano Devi @ Parani Devi & Ors

DATE OF JUDGMENT: 22/04/2008

BENCH: S.B. Sinha & V.S. Sirpurkar

JUDGMENT: J U D G M E N T REPORTABLE

CIVIL APPEAL NO.  2893              OF 2008 (Arising out of SLP (C) No.6350 of 2006)

S.B. Sinha, J.

1.      Leave granted. 2.      Appellant is before us aggrieved by and dissatisfied with the judgment  and order dated 21.11.2005 passed in CR No.1532 of 2003 by the High  Court of Patna whereby and whereunder an order dated 29.8.2003 passed by  Subordinate Judge VIII, Ara in Title Suit No.58 of 1990 rejecting an  application for amendment of plaint filed by the appellant herein was  dismissed 3.      Appellant herein is the son of the original plaintiff who filed a suit for  declaration of his title and confirmation of possession as also for setting  aside a deed of sale executed by the respondent herein.  The said suit was  filed on or about 21.5.1990.  A deed of sale was executed in favour of  defendant Nos.1 and 2 on or about 8.3.1990.   An application for passing an interim order was filed in the said suit  whereupon an order of status quo was passed on 1.6.1990.  During the  pendency of the said suit, two deeds of sale were executed in favour of third  parties on 8.6.1990 and 18.6.1990. 4.      The interim order passed by the learned Trial Judge was affirmed by  an order dated 9.11.1990.  Three Miscellaneous Appeals were filed  thereagainst by the respondents.  The matters were said to be pending before  the District Judge for a long time.  However, on or about 11.6.2003, the  appellant herein moved an application for amendment to add a new relief in  one of the plaints claiming preferential right in respect of the suid property  on the premise that the plaintiff was a co-sharer of the lands in suit to the  following effect : "1.     That after 1 "Ka" of the plaint one new  relief 1 "Kha" may be added. 1’Kha’\026That if for any reason if there is any  difficulty in granting relief 1 ’Ka’ then in  that situation decree under Section 22 Hindu  Succession Act (preferential right to acquire  on same terms and conditions) be granted  and the purchaser-defendant be directed that  they should execute sale deed of the  disputed land in favour of the plaintiff as  mentioned in schedule 2, 3, 4 of the plaint  and get it registered an if for any reason the  new purchaser-defendant are not executing  the sale deed nor are getting it registered  then in that situation through Court the sale  deed may be executed and registered."

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       Respondents herein, in response thereto raised the following  conentions : "a)     The application is not maintainable, the  same being mala fide moved with the  purpose to linger the trial of the case, b)      The application is frivolous and bogus and  the same is barred under law of limitation.   Under Article 97 of the Limitation Act, 1963  for enforcement of right of pre-emption the  prescribed period of limitation is one year  from the date of sale, whereas this suit was  filed in the year 1990 and the amendment is  sought on this ground in 2003 after about 13  years of the filling of the suit, c)      The proposed amendment seeks to change  the entire nature and scope of the suit and  also the cause of action, d)      The amendment application is barred under  Order II of CPC, e)      The same is barred under law of waiver and  acquiescence, f)      That under the gift deed dated 6.9.49 which  has attained finality each donees has got  separate and defined title over their separate  shares of gift property, g)      In the past also the plaintiff has moved  several amendment applications and now  they are in perpetual habit of moving  applications seeking amendment in the  plaint, h)      That trial of case has started long back and  the application fails to disclosed any reason  why the proposed amendment was not  carried out in the past."

5.      By reason of a judgment and order dated 29.8.2003, the learned Trial  Judge dismissed the said application for amendment of the plaint opining  that the same, if allowed, would change the nature of the suit.  The High Court, by reason of the impugned judgment has affirmed the  said view of the learned Trial Judge. 6.      Mr. Akhilesh Kumar Pandey, learned counsel appearing on behalf of  the appellant, would submit that the learned Trial Judge as also the High  Court wrongly proceeded on the basis of Section 22 of the Hindu Succession  Act, 1956 was not attracted in the instant case as the deeds of sale have  already been executed.  It was submitted that the word ’proposed’ occurring  in the said section must be given a wider meaning so as to bring within its  purview a right of a co-sharer to file a civil suit in the event a deed of sale  has been executed.  Strong reliance in this behalf has been placed on Valliyil  Sreedevi Amma v. Subhadra Devi and Ors.  [AIR 1976 Kerala 19]. 7.      Mr. Shishir Pinaki, learned counsel appearing on behalf of the  respondent, on the other hand, would submit that this Court, in a case of this  nature, need not go into the said question as admittedly the appellant having  waited for a period of 13 years to claim his purported preferential right in  terms of Section 22 of the Hindu Succession Act, the same was not  maintainable being barred by limitation.   Section 22 of the Hindu Succession Act reads, thus : "Section 22.\027Preferential right to acquire  property in certain cases\027(1) Where, after the  commencement of this Act, 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, devolve upon to two

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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.\027In 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."

8.      A right claiming preference over a property in terms of a statute  ordinarily is a weak right.   Limitation Act 1963, by Article 97, provides for one year’s limitation  for claiming such a right.  The suit was filed in the year 1990.  The sale  deeds, during the pendency of the suit, were executed on 8.6.1990 and  18.6.1990.  The application for amendment was filed 13 years after the filing  of the suit.  A suit claiming preferential right was required to be filed  ordinarily within the prescribed period of limitation.   9.      Contention of Mr. Pandey that two deeds of sale were executed in  violation of the order of injunction and in that view of the matter, the deeds  of sale must be held to be invalid in law, in our opinion, cannot be a ground  for allowing the amendment of the plaint.  If the deeds of sale are held to be  bad in law, that would not mean that by reason thereof, the co-sharer of the  plaintiff would propose to execute a sale deed giving a cause of action for  filing a fresh suit.  Plaintiff was required to exercise his right under Section  22 of the Hindu Succession Act within the period prescribed therefor.  The  said deeds of sale either would be declared valid or invalid.  In either way,  the appellant cannot take any benefit of the provisions of Section 22 of the  Hindu Succession Act. 10.     It is also idle to contend that as the matters had been pending in the  court of the District Judge for a long period, the appellant could not file an  application for amendment of plaint.  Even if the records had been called for  by the learned District Judge, the same would not have come in the way of  the appellant for filing an application for amendment of the plaint.  A Trial  Court, despite requisitioning of the records by the Appellate Court maintains  a supplementary record.  There is nothing on record to show that the learned  District Judge granted an order of stay. 11.     In T.N. Alloy Foundry Co. Ltd. v. T.N. Electricity Board and Ors.  [(2004) 3 SCC 392], this Court, upon taking into consideration its earlier  decisions in L.J. Leach and Company Ltd. v. Jardine Skinner and Co. [1957  SCR 438], held that as a rule, the Court will decline to allow amendment for  a fresh suit on the amended claim if it had become barred by limitation on  the date of application. {See also State Bank of Hyderabad v. Town  Municipal Council [2006 (13) SCALE 332]} 12.     In Bhola Nath Rastogi and Ors. v. Santosh Prakash Arya and Ors.  [AIR 1975 Patna 336], L.M. Sharma, J (as the learned Chief Justice of India  then was), opined : "The general rule of survivorship applying to  Hindu Mitakshara families still holds good subject

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of course to cases which are covered by the  provisions of Section 6 of the Act.  The provision  of proviso to Section 6 will be applicable only to  such cases where the deceased left behind him  surviving a female relative specified in class I of  the Schedule or a male relative specified in that  class who claims through such female relatives.  It  is not suggested by the appellants in the present  case that Dhanu Lal died leaving behind any heir  other than his two sons.  I am, therefore, of the  opinion that the proviso to Section 6 does not  apply to the present case so as to defeat the rule of  survivorship being applied to the parties.  When  Dhanu Lal died, his two sons took the entire  interest by survivorship and as is admittedly the  case now there has been separation between the  two sons before the sale deed by defendants 25 to  28 was executed.  Defendant No.1 or his sons,  therefore, cannot be permitted to invoke the benefit  of Section 22 of the Act. 9.      There appears to be another difficulty in the  way of the appellants in raising this question.  Sub- section (2) of Section 22 of the Hindu Succession Act  indicates that a party can enforce a right of pre-emption  by making an application to that effect in a Court which  has been explained in the Explanation to this Section.  If  a party intending to take the benefit of the right given  under Section 22(1), files an application, the Court has to  determine the amount of consideration for the intended  transfer and the party is again given an option to get such  a transfer from the co-sharer on such consideration or to  refuse the same.  If the party declines to purchase the  property for the same amount, he has to bear the cost of  the proceeding.  No such application has ever been filed  by any of the parties anywhere.  This plea was not even  raised in the Court below.  It was for the first time in this  appeal that the appellants have raised this point.  Even in  this Court no application has been filed for enforcement  of such a right.  In these circumstances, the plea has to be  rejected."

13.     In Muralidhar Das v. Bansidhar Das and Ors. [AIR 1986 Orissa 119],  upon taking into consideration the decisions of the Calcutta and Kerala High  Court, stated the law in the following terms : "Sub-section (2) provides for determination of  consideration when there is a difference between  the parties, namely, the one intending to acquire  and the other proposing to transfer.  The provision  does not go any further.  S. 22 does not lay down  any other procedure.  The scope of the application  is limited and hence the jurisdiction of the Court.   The section does not lay down the procedure for  the enforcement of the right conferred under sub- section (1).  Only one aspect of the controversies  that might arise pursuant to the right conferred by  sub-section (1) has been taken care of and no  other.  The provision being clear and categorical  and there being no ambiguity in it, it is not open to  the Court to so interpret the provision which would  amount to legislating on its part.  Ordinarily the  Courts do not make law but interpret it."

14.     The decision of the Kerala High Court also provides for a right upon a  co-sharer to file a suit for enforcing such a right, stating : "The object of sub-section (1) as we understand it

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is that in cases where by virtue of intestate  succession under the Act any interest in  immovable property has devolved upon two or  more heirs specified in Class 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.  The said intention  of Parliament can be effectuated only if we  consider the section as conferring an enforceable  right on the heirs other than the one who proposes  to transfer his interest.  The section confers on  such co-heirs a preferential right to acquire the  interest which is proposed to be transferred by the  other co-heir.  In case the proposed transfer is  effected by one of the co-heirs in violation of the  right conferred on his co-heirs by sub-s.(1) the  latter cannot certainly be without a remedy  because every legal right must necessarily carry  with it a remedy for enforcing the same.  The  remedy of the non-alienating co-heirs, in such  circumstances, will, in our opinion, be to seek the  intervention of the Court to enable them to acquire  the right which has been transferred away by the  other co-heir in violation of sub-section (1) of  Section 22.  In as much as the section does not  provide any special procedure for seeking the said  remedy, the ordinary procedure for enforcement of  any civil right has to be resorted to by the co-heirs  who wish to enforce their rights under Section  22(1); in other words the remedy is by way of a  regular civil suit before the competent court.   Where the properties have been already alienated  in favour of strangers there is all the more reason  why there should be a full and fair adjudication of  the entire matter in a suit tried before a competent  civil Court because various factual questions are  bound to arise for determination in such a suit  wherein the principal issue would be whether the  transfer complained of was effected in violation of  sub-section (1) of Section 22.  The main purpose  of such a suit instituted by the co-heir will  necessarily be the enforcement of the right  conferred by Section 22(1) of the Act.  The  question of invalidity of the transfer effected by  the other co-heir in favour of strangers becomes  relevant in such an action as an incidental matter  which has necessarily to be gone into for the  purpose of determining whether the plaintiff is  entitled to the relief sought by him against his co- heirs in enforcement of the right conferred by  Section 22(1)."

15.     The only remedy which was, thus, available to the appellant might be  to file a suit.  But as the same itself being barred by limitation, we are of the  opinion that the Court would not exercise its discretionary jurisdiction to  allow the amendment of the plaint.   16.     There is, thus, no infirmity in the impugned judgment.  Appeal is  dismissed.  No costs.