VALLIYIL SREEDEVI AMMA Vs. SUBHADRA DEVI

JUDGEMENT

(1.) This appeal has been preferred against the order of the Subordinate Judge, Tirur dismissing a petition O. P. No. 511 of 1970 filed by the appellant herein under Section 22 (2) of the Hindu Succession Act, 1956 (30 of 1956) hereinafter referred to as the Act. The petition was dismissed by the Court below on the basis of a preliminary finding arrived at by it that an application under Section 22 (2) of the Act for determination of the value of the share of a co-heir is not maintainable if such share has been already transferred by the co-heir to a stranger and that in such cases the remedy available to a party seeking to enforce the right conferred by Section 22 (1) of the Act is only to institute a regular suit for specific performance.

(2.) The properties described in the petition filed before the Court below, excepting a residential building situated thereon, belonged to one Jayapala Menon. In respect of the residential building the saiJ Jayapala Menon had only an undivided share. Jayapala Menon died intestate on 26-5-1965. Under the provisions of the Act the only heirs entitled to succeed to the estate of the deceased are his mother and his widow, both of whom are Class I heirs under the Act. The appellant before us who figured as the petitioner in the lower Court is the mother of the deceased Jayapala Menon. The widow of the deceased was impleaded as 1st respondent before the Court below and she is the 1st respondent in this appeal also. On 31-8-1968 the 1st respondent executed a registered sale deed transferring her undivided half share in the petition schedule properties in favour of respondents Nos. 2 to 4 for a consideration of Rs. 10,500/-. It was shortly thereafter that the appellant filed the petition under Section 22 (2) of the Act on 13-11-1968 praying that the value of the 1st respondent's half right in the property may be determined by the Court and that the said right may be directed to be transferred to her on payment of the value so determined, ignoring the sale in favour of respondents Nos. 2 to 4. The petition, was originally presented to the District Court, Kozhikode and had been numbered there as O. P. No. 368 of 1968; subsequently it was transferred to the Subordinate Judge's Court, Tirur where it was renumbered as O. P. No. 511 of 1970.

(3.) Respondents Nos. 2 to 4 who contested the matter before the lower Court raised a preliminary objection that Section 22 (2) of the Act does not contemplate any application for fixation of price after the concerned property has already been sold away by the co-heir whose share is sought to be evaluated and that in any event the prayers for the grant of a declaration of invalidity of the sale effected in favour of respondents Nos. 2 to 4 and for a direction for transferring the share of the 1st respondent to the petitioner on payment of the value to be determined by the Court are wholly outside the scope of a petition preferred under Section 22 (2) of the Act.