- (1.) C.M. No. 398-C of 2014 For the reasons stated in the application, delay of 10 days in filing the appeal is condoned. Application is allowed. RSA No. 171 of 2014 The second appeal is against the order of rejection of plaint by the trial Court and the confirmation of the said order by the Appellate Court. The suit was in purported exercise of a preferential right to secure certain property under Section 22 of the Hindu Succession Act by the plaintiff seeking to exercise that right. The suit was admittedly filed more than a year after the transaction and the objection taken was that Article 97 of the Limitation Act applied and the suit was barred by law. This contention was accepted by both the Courts below by making reference to Article 97 which deals with the right to enforce a right of pre-emption whether the right is founded on law or general usage or on special contract. The contention of learned counsel appearing on behalf of the plaintiff-appellant is that Section 22 of the Hindu Succession Act employs a language that allows for a person having a preferential right in the property to approach the Court only through an application and therefore, the application cannot be treated as a suit. The learned counsel refers me to Section 2(1) of the Limitation Act of 1963 which defines a suit as not including an appeal or an application. This, according to him, would mean that only Article 137 must be applied which provides for a period of three years and consequently the suit must be taken as within time.
(2.) The fundamental error obtains in assuming that a person that sues for enforcement of a preferential right under Section 22 does not file a suit but files only an application. There is nothing in Section 22 to make such an inference. The decision would hinge upon the interpretation to Section 22 and thus, the Section would require to be reproduced:- "22. Preferential right to acquire property in certain cases. (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 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.
(3.) Clause (1) deals with the right in an immovable property which devolved on two or more heirs and a preferential right of a person to acquire the interest proposed to be transferred. Clause (2) deals with the consideration for which interest in the property may be transferred and in that context it says if any person proposed to acquire an interest, the Court may on an application made it on behalf of it liable to pay of costs or antecedent to the application. The application which clause (2) talks about is an application for determination of the consideration in the property. The expression suit is not mentioned, for, a determination of consideration is one of several preparatory reliefs which have to be considered before the ultimate decree is passed. The application here must, therefore, be taken as an interlocutory application in suit for a right to enforce the preference that is guaranteed under clause (1) of the said Section. It is only in the mistaken assumption that the whole enforcement of the right obtains through an application that the present contention is raised. If we must give a meaning to the application for what it is meant to be as an interlocutory relief determined then the argument that Article 137 has application and not 97 cannot have any legal force. The suit before the Court is not an application in any sense. It is only a regularly instituted suit. This point has also not without precedent and Courts have considered that a suit for enforcement of the right under Section 22 of the Hindu Succession Act is governed by Article 97 and not Article 137. (P1. see Ashutosh Chaturvedi v. Prano Devi @ Parano Devi and others, 2008 15 SCC 610 that has dealt with applicability of Article 97 to a suit filed in exercise of preferential right of purchase. This Court has itself dealt with the issue on the same lines in Surender Kumar Jain v. Madhu Gupta and others,2010 157 PunLR 186. The Madras High Court has also adopted the same reasoning in Kulasekaran Chettiar (Deed.) v. Meenakshi Aammal, 2002 2 MadLJ 95. There is no substantial question of law involved for fresh consideration in this appeal. The law has already been established and it requires no further determination or reiteration. The second appeal is dismissed.;