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Title of the case: Ganeshappa Since Dead By His Lrs. ...

Krishnamma And Ors

Citation: AIR 2005 Kant 160

Facts: The appellants are the L.Rs of the deceased plaintiff, filed a suit
for declaration that the sale deeds executed by the first defendant in
favour of the defendants No. 2 to 4 is void and in
contravention Section 22 of the Hindu Succession Act, 1956. Further
pray for determination of the value of the suit properties and
thereafter to direct the defendants to execute the sale deed in respect
of the suit property by receiving the sale value determined by the

2. One Venkataramanappa is the propositus, died several years prior

to 1962. One Ganeshappa and the plaintiff and one Chinnappa
(husband of the first defendant) are the only heirs of
Venkataramanappa. The husband of the first defendant Chinnappa
died in the year 1966.

The first defendant filed a suit in O.S.No. 317/1966 against the

plaintiff herein seeking partition of the share of her husband.
Provisions of law: sec 22.

Preferential right to acquire property in certain cases.—

(1) 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.

Conclusion: The provisions of the Section declare that when the

interest in the immovable property devolved by intestate succession
upon two or more heirs specified in Class I of the schedule then it is
between the Class I heirs inter se they have right of preemption. In the
present case, the succession for the first time opened after the death of
propositus Venkataramanappa. His sons as Class-I heirs succeeded to
the property. The first defendant did not succeed to the property as
Class-I heir of Venkataramanappa along with the plaintiff and his
brothers. The first defendant succeeded to the property only after the
death of her husband, who is the brother of the plaintiff. The plaintiff
could have invoked right of preemption, if Chinnappa his brother had
sold the property. But in the instant case, it is the widow of
Chinnappa, who inheriting the property after the death of her
husband sells the property. Therefore, in between the plaintiff and
first defendant the question of right of preemption would not arise
and provisions of Section 22 of the Hindu Succession Act do not apply.
In that view, the claims of right of preemption is untenable. The
finding of the Trial Court is sound and proper. Accordingly, the appeal

One R.Rajagopal had seven children, so to say, the plaintiff and
defendants 2 to 7. D1 is the widow of deceased Rajagopal who died in
the year 1992 leaving behind the plaintiff and the defendants as his
legal heirs. The defendants 1 to 3 entered appearance and filed their
written statement.
Ultimately the trial Court dismissed the suit for partition on the sole
ground that the plaintiff being a female member cannot ask for
partition of a dwelling house in the occupation of a male heir as
per Section 23 of the Hindu Succession Act. However, the lower Court
ordered accounts to be furnished to the plaintiff relating to the income
derived from the house, as a portion of the house was rented out to
tenants. Being aggrieved by and dissatisfied with the judgment of the
lower Court, this appeal has been filed on various grounds, the gist
and kernel of them would be to the effect that the trial Court should
have ordered partition as the true purport of Section 23 of the Hindu
Succession Act would not be a bar for seeking partition in the facts
and circumstances of the case, as part of the property was already let
out to the tenants and it is not in the exclusive possession of the male
At the hearing, the learned counsel for the appellant appropriately and
appositely, correctly and convincingly drew the attention of this Court
to the recent amendment to the Hindu Succession (Amendment) Act,
2005 (39 of 2005) deleting Section 23 of the Act. No doubt the
amendment Act shall have prospective effect, but practically if the
matter is viewed, it is clear that as per the Hindu Succession
(Amendment) Act, 2005 the plaintiff is entitled to partition of the
dwelling house property also and such an amendment has come into
vogue during the pendency of the appeal. The appeal is deemed to be
in continuation of the suit proceedings. It would be a mere hyper
technicality if the appellant/plaintiff is driven to the extent of filing a
fresh suit invoking the said recent Hindu Succession (Amendment)
Act 2005 (39 of 2005) and in such a case, I am having no hesitation in
construing that in this case the erstwhile Section 23 is having no
application and accordingly partition could be ordered in respect of
the 1/8th share of the plaintiff.
Accordingly, preliminary decree is ordered to be passed lower Court in
set aside. It is quite obvious and apparent that the said Rajagopal died
leaving behind his seven children and his widow and as such, each one
is entitled to 1/8th share. Accordingly, this appeal is disposed of.

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