Co-Parceners Have A Preferential Right Under Section 22 Of Hindu Succession Act: Bombay High Court

The Bombay High Court held that the co-parceners have a preferential right under Section 22 of the Hindu Succession Act, 1956 (HSA).

The Aurangabad Bench was deciding two Appeals emanating from the decision of the Trial Court, which decreed a suit.

A Single Bench of Justice Shailesh P. Brahme observed, “It is not made clear as to when Keshav died. He died intestate and it is assumed that on his death partition opens. The plaintiffs and defendant nos. 8 and 9 would inherit share of the deceased Balkrushna. They would fall in the category of sons of predeceased son, which is included in class-I. If the partition opens as per Section 6 of the Act, the plaintiffs are entitled to have 1/3rd share per strip along with defendant no. 6 and 7. The plaintiffs are the co-parceners having birth right and their status is akin to their uncles, defendant nos. 6 and 7. In my considered view that have a preferential right under Section 22 of the Act. Both Courts below have rightly recognized their right as contemplated under Section 22 of the Act.”

The Bench explained that the right under Section 22 of the HSA is exercisable by heirs of Class I and if there are more than one deceased person dying intestate in the undivided family, then the difficulty arises as to who would be the Class I heirs.

Advocate S.S. Kazi represented the Appellants, while Advocate Shrikant Kulkarni represented the Respondents. Nahush Sham Selukar was the party-in-person.

Factual Background

The case was related to the joint family properties and right of pre-emption under Section 22 of HSA. The Respondent Nos. 1-3 were the original Plaintiffs and sons of Balkrushna. The Respondent Nos. 6 and 7 were their real uncles and the Respondent Nos. 8 and 9 were their step brothers. The Appellants were the purchasers of the joint family property vide four distinct sale deeds. The Plaintiffs had filed a suit when they learnt about alienations and when their peaceful possession was allegedly obstructed by the Defendants-purchasers. It was contended that the Defendants fraudulently alienated the suit lands and hence, suit was filed seeking relief of declarations and perpetual injunction asserting right of pre-emption under Section 22 HSA.

The purchasers contested the suit, contending that they were tenants and in occupation of the suit lands even prior to execution of sale deeds. The suit proceeded ex-parte and thereafter, the Trial Court decreed the suit. It declared that the sale transactions are void due to the fraud played by the vendors and declaring that they have right of pre-emption which should be exercised by depositing the amount of consideration. Being dissatisfied, the Plaintiffs challenged this and the Defendants preferred cross objection. Both were dismissed and the Trial Court’s Judgment was marginally modified. Hence, Second Appeals were preferred before the High Court.

Reasoning

The High Court in the above context of the case, said, “A preferential right under Section 22 of the Act is available to Class I heirs. … The question which needs consideration is as to whether the plaintiffs and the defendant nos. 8 and 9 can be treated to be Class-I heirs and as to their status in juxtaposition with Keshav or Balkrishna.”

The Court laid down the following few factors which are required to be taken into consideration for recognizing the Class I heirs –

(i) The status of property and the family.

(ii) The time of death.

(iii) Time as to when the partition opens for devolving the interest.

(iv) Inter se relationship and the degree.

(v) Manner in which the interest devolves as per Section 6 of the Act.

(vi) If there is co-parcenary or birth right.

The Court said that no evidence is placed on record to make out a case that Plaintiffs had opportunity to purchase the suit lands but they did not avail and hence, the submission that Plaintiffs are estopped from challenging the sale transaction is meritless.

“Though defendant nos. 1 to 5 purchased the suit lands, which were undivided shares of vendors in the year 1989 by distinct sale-deeds, till this date no endeavour has been made to seek partition. They are entitled to enforce partition as per Section 44 of the Transfer of Property Act. They are not having separate possession in pursuance of the sale transactions. Hence, it cannot be said that they have perfected title and possession over the suit lands. There is no question of granting any protection under Section 44 of the Transfer of Property Act”, it noted.

The Court observed that the possession is already with the Plaintiffs and hence, the interest will be acquired by the Plaintiffs no sooner than the payment of purchase money is made by them.

Conclusion

“The purport of not specifically requiring to seek any declaration of setting aside the sale transaction would be that the property remains to be undivided joint family property. The plaintiff has vested right which gets restored only on payment of purchase money. There is no need to issue any declaration of setting aside the sale-deeds. Both Courts below have rightly passed the decree”, it further noted.

The Court, therefore, concluded that the Plaintiffs have failed to make out a case of fraud and neither is there any adequate material on record to infer fraud.

Accordingly, the High Court dismissed the Second Appeals, confirmed and modified the impugned Judgment, and directed that the Plaintiff shall deposit the amount of purchase price prescribed in the decree with simple interest @6% p.a. within 90 days.

Cause Title- Tukaram & Ors. v. Sham Balkrishanrao Selukar & Ors. (Neutral Citation: 2025:BHC-AUG:29647)

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