H.G. Mishra, J.
1. This revision is directed against order dated 28-11-1977 passed by this Additional District Judge, Sheopur whereby an application submitted by the revision applicant under Section 22(2) of the Hindu Succession Act, 1956, (Act No. 30 of 1956), (hereinafter referred to as 'the Act'), has been allowed for conversion of the application into a suit with added direction to pay ad valorem court-fees corresponding to the sale price i. e. Rs. 35,000/-.
2. Facts essential for decision of this revision are as under :--
That Shri Manik Chand, father of the applicant and non-applicant No. 2, died intestate on 6-9-1979. After his death certain immovable properties left by him were partitioned between the applicant and the non-applicant No. 2 and other heirs of Manik Chand. On 17-4-1975, the non-applicant No. 2 sold a shop under a registered sale deed for Rs. 35,000/- in favour of Hanuman Prasad non-applicant No. 1. Purporting to enforce preferential right to acquire the property the applicant herein submitted an application under Section 22 of the Act before the Additional District Judge whereby in exercise of the right created by Section 22 the applicant prayed for a direction to reconvey the suit shop to her. This application was opposed by the non-applicant No. 1 on the ground that the application is not maintainable under Section 22(2) of the Act.
3. The lower Court framed certain issues. Out of them. Issues Nos. 4, 5 and 7 are as under:--
"4. Whether this Court is competent to hear this application ?
5. Whether the application under Section 22(2) of Hindu Succession Act is maintainable ?
7. (A) Whether the applicant has valued the application properly?
(B) If not, what is the correct valuation?"
These issues were treated as preliminary issues, and arguments were heard. It appears that at the stage of arguments, the applicant submitted an application for conversion of her application under Section 22(2) of the Act into a suit. By the impugned order the application submitted by the revision-applicant has been held to be not maintainable under Section 22(2) of the Act. However conversion of the application into a suit has been ordered. It has been further held that proper valuation of the suit is Rs. 35,000/- and that ad valorem court-fees is payable thereon. Accordingly deficit court-fees has been ordered to be paid. The present revision is directed against this order.
4. In this revision Shri R. D. Jain, learned counsel for the applicant, contends (i) that the application is maintainable under Section 22(2); and (ii) that in any event, that part of the impugned order which concerns itself with the determination of valuation and court-fees payable on the suit is without jurisdic-tion.
Shri R. K. Patni, learned counsel for the non-applicant, argued in support of the impugned order.
5. Having heard the learned counsel for the parties, I have come to the conclusion that the revision deserves to be partly allowed.
6. To take up first the contention with regard to the maintainability of the application under Section 22(2) of the Act. Section 22 which creates preferential right to acquire preperty in certain case, runs as under:--
"22 (1) Where, after the commencement of this Act. 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 pro- posing 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" (Underlining by me.) In the present case, it is admitted that the sale deed proceeded the application submitted by the revision-applicant under Section 22(2) of the Act. Accordingly, the question which this revision poses for decision is whether the revision applicant has right to move an application under Sub-section (2) of Section 22 of the Act in such a situation.
7. The title of this Section indicates that it concerns itself with 'preferential right to acquire property in certain cases. In Sub-section (1) the expression used is "proposes to transfer". Accordingly, when the legislature talks of preferential right to acquire the interest "proposed to be transferred" in Sub-section (1) of Section 22. it talks of a "contemplated transfer" and not of "concluded transfer" or "transfer already effected." The right to acquire preferentially the interest is conceived as a right exercisable at a stage where one of the heirs of the deceased proposes to transfer his or her interest in the property or business left by the deceased Hindu dying intestate, Acceptance of the contention that Section 22(1) of the Act creates a preferential right to acquire the interest already transferred will involve re-writing thereof. This is not permissible on any established principle of construction of statutes.
8. Sub-section (2) of Section 22 of the Act provides for a cheap and speedy remedy for determination of 'consideration', for which any interest in the property or business of the deceased "may be transferred under the Section". The Sub-section (21 of Section 22 of the Act does not create any right wholly independent of that created by Sub-section (1) of Section 22. It is only where the other heirs of the deceased have a preferential right to acquire under Sub-section (1) of Section 22 that an application for determination of the consideration has to be moved in the Court specified in the Explanation appended to the section.
9. In view of the aforesaid discussion, an application under Section 22(2) of the Act cannot be regarded to be maintainable after 'transfer' has been effected. It is maintainable only at a stage where transferor heir proposes to transfer his or her interest in the property. A similar question fell for consideration before a Division Bench of the Kerala High Court in Valliyil Sreedevi Amma v. Subhadra Devi, AIR 1976 Ker 19 wherein the law on the point has been laid down thus (at P. 21) ;
"The object of Sub-section (1) as we understand it 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 coheirs 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-section (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. Inasmuch 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 determina- tion 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-heir in enforcement of the right conferred by Section 22(1).
We are unable to agree with the contention advanced by the learned counsel for the appellant that the aforesaid question can be legitimately gone into by the Court, even in an application filed under Section 22 of the Act. In our opinion the object of the legislature in enacting Sub-section (2) of Section 22 is only to provide a cheap and speedy remedy in cases where the property is in the hands of the co-heir who proposes to transfer the same and another co-heir is interested in acquiring the rights of the former but the parties are not able to agree about the consideration for which the former's interest in the property should be transferred to the latter. Where the property itself has been already transferred away by the co-heir first mentioned we fail to see what useful purpose will be served by an investigation conducted by the court under Sub-section (2) for determining the price at which the property may be sold by the former to the latter. In such a case an investigation under Sub-section (2) may become relevant only after the person who feels aggrieved by the transfer effected by his co-heir in contravention of the provisions of Sub-section (1) has by resort to the appropriate legal process obtained a declaration from the competent Civil Court that the sale effected by the co-heir in favour of strangers is invalid. Even in such a case, unless the co-heir who had effected the impugned alienation, again proposes to transfer his interest in the property there can be no occasion for any determination to be made by the Court about the price payable by the other co-heir under subsection (2) of Section 22."
I am in respectful agreement with the view expressed by the Kerala High Court in the aforesaid case. Accordingly, the view taken by the learned Additional District Judge that application submitted by the revision-applicant is not maintainable under Section 22(2) of the Act is correct. As such the application submitted by the revision-applicant is not maintainable under Section 22(2) of the Act.
10. This brings me to the second contention advanced by Shri R. D. Jain, learned counsel for the applicant. A suit is not before the court. The defendant has not entered into his defence and yet the Court has held that the proper valuation of the suit will be Rs. 35,000/- and that ad valorem court-fees will be payable thereon. This is 'anticipatory decision' of a plea yet to be raised by the defendant by filing his written statement. On this short ground that part of the impugned order which concerns itself with the propriety of the valuation and adequacy of court-fees payable on the suit deserves to be set aside. The question can be. and will be, gone into only after the plaint is before the Court in pursuance of the order of conversion of the application into a suit and the defendant enters into defence and takes a plea with regard to under-valuation of the suit or inadequacy of the court-fees. At the present stage adjudication on the point is premature.
11. Accordingly, the revision deserves to be partly allowed and is hereby allowed to the extent that part of the impugned order which concerns itself with proper valuation of the suit and the payability of court-fees thereon is set aside. The matter will be open and will be gone into when the defendant submits his written statement in answer to the suit. In view of the divided success of the revision I leave the parties to bear their own costs as incurred.