Consideration of property shall only pass to a stranger in the absence of a heir having a preferential right u/S 22 of the HSA, 1956: Calcutta High Court

An interesting, important and significant point was raised in the instant appeal as to whether the gift of an immovable property to a stranger to the exclusion of the other heirs of Class-I can be regarded as a transfer before the High Court in the matter of Pabitra Kumar Maity v Shyamali Manna [F.A.T 661 OF 2017]. The bench of Harish Tandon J. and Kausik Chanda J. extensively dealt with the provisions under Section 22 of the Hindu Succession Act, 1956.

The plaintiff/appellant filed suit for declaration, permanent injunction and preferential right to acquire the property in the 2nd Court of the Civil Judge. Originally, the larger property comprised in Schedule ‘Kha’ belong to Subhendu Kumar Maity , Joykrishna Maity and Ajay Krishna Maity. On the death of the respective owners, the heirs and legal representatives inherited the said “Kha” Schedule Property and subsequently executed a partition deed being no. 7515 on 19.7.2002. Subsequently, a deed of gift bearing no 2118 was executed and registered on 16.4.2015 by the Defendant no. 2 in favour of the Defendant no. 1 bequeathing some other properties, described in Schedule ‘Ka/1’ to the plaint with an intent to avoid the right of pre-emption. The Trial Court held the nature of the transfer contemplated under Section 22 of the said Act is not applicable to the transaction of gift which is without consideration and negatived the claim of the plaintiff in this regard.

The case of Madanlal Vs. Prema Das AIR 2008 was referred to wherein it was held that the interpretation of the said expression involved the incident of the underlying legislative intent. The Court held that it is imperative upon the co-sharer proposing to transfer his share in the immovable property to the outsider to offer the same to the other co-sharer first before embarking its journey by selling his share to the outside.

Section 2 should be interpreted when the court deprives a stranger to the property acquiring an interest by way of a gift and such right is being vested upon the heir specified in Class-I of the Schedule. It is anomalous when a co-sharer who gifted the property and the donee who received the property shall not be entitled to any consideration if the property by the operation of the law is directed to be given to the co-sharer or the heir is specified in Class-I of the Schedule.

The proper meaning which can be assigned to sub-Section(2) of Section 22 is the moment the Court finds that an heir is entitled to a preferential right under sub-Section(1), in absence of any agreement, the consideration so determined shall pass to the stranger purchaser. Any other interpretation would render the provision otiose and redundant. The word ‘transfer’ has to be given a pragmatic meaning and not in conjunction with the consideration appearing in subSection(2) of Section 22 of the Act. If any restrictive meaning of the word transfer is given, it would be a premium to the heir divesting his right by way of a gift to wriggle out of mischief of the provision contained in sub-Section(1) of Section 22 of the Act.

The court held that, “So far as the concluded transfer is concerned, we do not find any restriction having put under Section 22 to have its restricted applicability in case of proposed transfer if the transfer has been affected without his knowledge, still the heir can maintain the proceeding invoking the preferential right enshrined under Section 22 of the Act.”

Thus the decree was modified of the Trial Court to the extent that plaintiff has a preferential right in respect of the schedule property.

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