This regular second appeal has been preferred by the 5th defendant in the suit O.S. No. 143/2018 on the file of Munsiff’s Court Vatakara who is also the 5th defendant in the First appeal A.S. 38/2009 of the subordinate Judge’s Court Vatakara. the parties are Hereafter referred to as per their trial Court rank.
The plaintiff filed the Suit for pre-emption for enforcing preferential right available under Section 22(1) of the Hindu Succession Act, 1956. The plaintiff and defendants 1 to 4 are the legal heirs of deceased Sankaran. The Plaint schedule property originally belonged to Sankaran, and on his Death, the property
devolved upon the plaintiff and defendants 1 to 4. The Defendants 1 to 4 assigned 1/5 of their share in the schedule property in Favour of 5th defendant as per sale deed dated 2.6.2008, for a consideration of Rs.40,000/-. According to the plaintiff, by virtue of Section 22(1) of the Hindu Succession Act, she is entitled to Preferential right to
purchase the shares of defendants 1 to 4, she being one of the co- heirs.
Opposing the plaintiff’s claim the defendants 1,2,4 and 5 has filed their written statement. They submitted that during June 2008
plaintiff along with them decided to sell that plaint schedule
property to the 5th defendant for a consideration of rupees 40,000. It was also argued by the defendants that the plaintiff was willing to sell 1/5 of her share to the 5th defendant.
The trial Court having been considered the Oral testimony of plaintiff found that the plaintiff has preferential right to purchase the share of
defendant no 1 to 4 by virtue of section 22(1) of Hindu Succession Act. But the trial Court observed that as defendant 1 to 4 had already assigned their share in the plaint schedule property to the 5th defendant by executing a registered sale deed, the plaintiff first have to pray for setting aside the sale deed , otherwise relief for pre- emption to the plaintiff can’t the granted. The trial Court had opined that the said sale deed will be treated as a valid document unless it set aside, as it is voidable in nature.
But the first appeal Court reversed the judgement of the trial Court and held that separate prayer for setting aside of sale deed is not necessary for granting right to Pre-emption.
The learned counsel for the plaintiff relied upon the decisions In Reghunath (D) by Lrs v. Radha C.Pratheep Kumar (D) through Lrs and Others, AIR 2020 SC 5026, Govindan Nair C.M and Others v.
M.Ramachandran Nair and Others, 2013 (2) KHC 229 and Ram Tari and Others v. Rattan Chand and Others, 2019 KHC 2282, in support of his argument that the right of Pre-emption can be enforced,
without a prayer for declaration. In Ram Tari (supra), the Himachal Pradesh High court held that if at the time of execution of sale deed by the co-heir section 22(1) of Hindu Succession Act ignored then
such sale deed along with other action consequential to that will be considered as illegal, null and void therefore will be quashed.
As per section 32 of Kerala Court Fees and Suit Valuation Act separate court fees has to be paid for pre-emption suits. As per the said provision :- In a suit for enforcement of right of pre-emption, computation of fee shall be on the sale deed consideration which
will be avoided by the pre-emptor or on the market value, whichever Is less.
According to the above provision suit for pre-emption is an
independent suit and payment of court fees for such suit is single and common. This Court also held that “Therefore, in the light of the above discussions it can be seen that once The plaintiff files a suit for enforcement of right of pre-emption under Section 22 (1) of the Hindu Succession Act, invalidity of The sale effected by the co- sharers will be Investigated and decided incidentally and as such a separate prayer for declaration that the said document is null and void or for setting aside the said document is not mandatory. For the same reasons, it is to be held that absence of a separate prayer
asking declaration that the said psale deed is null and void or for setting aside the said document is not a ground for non-suiting the plaintiff. That’s why the impugned judgment of the first appellate court which reversed the judgment of the trial court and uphold the right of pre-emption of the plaintiff is liable to be sustained.”
In this case plaintiff does not entered into any agreement with
defendant no 1 to 4 regarding the consideration value of their share they sold to Defendant no 5. Court after conducting necessary
enquiry as contemplated under sub-section (2) of Section 22 of The Hindu Succession Act amount of consideration to be paid to
Defendant no 1 to 4.
The first appeal Court fixed rupees 40,000 as consideration as it is shows that defendant no 1 to 4 executed sale deed in favour of
defendant 5 against such specific amount, the first appeal Court
Tn the present case the defendants 1to 4 have not opposed the consideration fixed by the first appeal Court. But the Second Appeal Court in its consideration of the entire facts and the dictum laiddown in Govindan Nair (supra), hold that to meet the ends of justice a direction to plaintiff to deposit a further sum of rupees 25000/- before the trial Court within two months from today will be appropriate.
Case Title: KULANGARA ABDUL KHADER VS.1.DHASHAYANI2. JYOTHILAKSHMI 3.NEETHRAJ 4.PRIYAMVADA RSA 363 of 2013
Judgement pronounced by the Hon’ble Justice C.Pratheep Kumar