In this legal notes, I wish to critically examine the legal provisions of the Limitation Act, 1963 (hereinafter referred to as ‘LT Act’ in this regard) which are applicable in bringing forwards a suit and/or an application by a Class I Legal Hair for claiming the legal right to acquire any interest in immovable property under Pre-Emptive/Preferential Rights given in S. 22 of the Hindu Succession Act, 1956 (hereinafter referring to as ‘The Act’ in this regard) from any other Class 1 legal heirs of the Joint Hindu Family who are intested in transferring their shares in such property not to the claimant but to outside purchasers.
The full text of S.22 is as follows:-
Section 22 Preferential Right to Acquire Property in Certain Cases:
1) Where, after the commencement of the Act, an interest in any immovable property of an intestate, or in any business can on by him or her, whether solely or in a junction with others, devolves upon two more heirs specified in Class I of the Schedule, and any of the such heirs proposed transfer his or her interest in the property or business, the other heirs, shall have preferential right to acquire the interest proposed to be transferred.
2) the consideration for which any interest in the property of the deceased to be transferred under this section shall be absence of any agreement between the parties, be determined by the Court on application being made to it is 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.
I can locate only one ruling of the Calcutta High Court in Tarak Dash Ghosh1 appeal regarding the application of L.T. Act, 1963 to any claim brought under S. 22 of the Act.
The respondent argued that the application under S. 22 (2) of the Act was filed beyond the period of limitation but the appellant argued that it was not so.2
In the lower Court, the Sub-Judge declared that as “the right given in S. 22 was a right of PRE-EMPTION” he was inclined to apply “Article 97 of L.T. Act, 1963” in giving his order that “the application was filed beyond the period of limitation”3 in dismissing the claim.
But in the 1st appeal, the Dist. Judge has declared that “as it was a preferential right to acquire property in certain4 cases” he has applied “Article 137 of L.T. Act, 1963” to declare that “the application was not filed beyond the period of limitation5 in allowing the appeal.
Hon’ble Justice Sri J.D Chakravarti in High Court confirmed the order of Sub-Judge. his Lordship said that “the right in question is a right of pre-emption when one or several persons on whom an interest in any immovable property devolves on teh death of a person dying intestate as heirs specified in class I and when any one of such heirs proposes to transfer his or her interest in the property, the other heirs are given a preferential right to acquire the interest proposed to be transferred. Here the right in question is one enabling a person to purchase the property in preference to others”6.
Therefore the respondent was successful in his argument that Art. 97 of Lim. Act, 1963 has to be applied to the facts of this case.
The Sub-Judge applied Art. 977 as “it applies to enforce a right of pre-emption whether the right is founded in law or general usage or on special contract” in coming to his decision. The High court too came to the same opinion.
Article 97 gives “one year” as the period of limitation in bringing legal claims before Court.
On the other hand, the Dist. Judge “appeared to have been influenced by the Title to S. 22 and thought it was a Preferential Right but not Pre-emptive Right” to go in for Art. 137 in coming8 to his decision.
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