SACHINDRA NATH BANERJEE Vs. HARI BHUSAN BANERJEE
LAWS(CAL)-1963-3-11
HIGH COURT OF CALCUTTA
Decided on March 22,1963

SACHINDRA NATH BANERJEE Appellant
VERSUS
HARI BHUSAN BANERJEE Respondents

JUDGEMENT

- (1.)THIS is a petition under section 115 of the Code of Civil Procedure against an order on an application under section 22 of the Hindu Succession Act. The first Court held that the petition under section 22 of the Hindu Succession Act was misconceived. Against that, there was an appeal and the Appeal Court held that the appeal would not lie but still expressed an opinion on the merits of the appeal which was completely unnecessary. However, I agree with the appellate court that an appeal would not lie, because no provision has been referred to me which would show that an order under section 22 of the Hindu Succession Act would be deemed to be a decree or would be appeal-able under any provision of law. Therefore, I would consider the judgment of the Trial Court. The Trial Court has not considered much except that the application was misconceived. Section 22 of the Hindu succession Act says, "where, after the commencement of this Act, an interest in any immoveable 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 law of pre-emption refers to sale already effected either under section 4 of the Partition Act or under any cither law. There has been no right to file an application before the transfer actually takes effect. Section 22 goes a hit further which says there would be a right to pre-empt as soon as there is a proposal for transfer and even before a transfer is actually effected. Therefore, the right of pre-emption would not cease because the proposal has merged into a transaction. If by a proposal there is a right of pre-emption, by the transaction it is proved. To do otherwise would be to act against the principles for which the section was enacted and the purpose of the section would be defeated if an interpretation is made that the right of pre-emption is available as long as there is the proposal but lost as soon as the proposal comes into effect and a transaction is achieved. Such a construction should not be made for the simple reason that such construction would defeat the purpose of the Act. Therefore, the order of the trial court is set aside and the matter is sent back to the trial court to consider the petition on merits. The order of the appellate court is bad, as I have stated already, and is also set aside. There will be no order as to costs. Further costs will be in discretion of the Courts below.


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