NAGAMMAL Vs. NANJAMMAL

JUDGEMENT

(1.) THIS second Appeal raises an interesting problem in the application of Section 22 of the Hindu Succession Act, The problem has been rendered difficult by the absence of clear legislative guidance. Mulla in his principles of Hindu Law, 12th Edition, remarks on the section:The section requires more explicit and stringent language.

(2.) TO state the facts of the case in brief : The suit properties, lands with wells, belonged to one Bomma Naicken who, on his death in August 1958, left surviving his widow and four daughters. Under the Hindu Succession Act, as Class I heirs the four daughters and the widow share the properties equally, each taking a l/5th share. Plaintiffs 1 to 3 in the suit are the three daughters and the 1st defendant is the other daughter. Without reference to her co-heirs, the 1st defendant, under the original of the sale deed Exhibit A-5, dated 11th December, 1959, sold her share in the suit properties to one Pappa Naicken, the 2nd defendant in the suit, for a consideration of Rs.1,000. The suit has been instituted on 12th July, 1960 in assertion by the plaintiffs of their preferential right to purchase her l/5th share under Section 22 of the Hindu Succession Act. During his lifetime, Bomma Naicken had created a mortgage over his properties for Rs.2,000 in favour of the 1st plaintiff as evidenced by Exhibit A-l dated 21st May, 1952. The widow, the other co-heir, had, with reference to her share, executed two sale deeds, Exhibit A-2 in favour of the 1st plaintiff and Exhibit A-3 in favour of the 2nd plaintiff, directing them to discharge the mortgage due by the estate and the dispute is confined to the alienation, Exhibit A-5 in favour of the stranger. The Courts below have rejected the plaintiff's claim and dismissed the suit. The Lower Appellate Court inter alia remarks that Section 22 does not provide as to what is to happen if one of the co-heirs sells his or her interest without informing the other co-heirs who have preferential right, the section not providing for any notice being given.

(3.) IN Black v. Fife Goal Co., Ltd. L.R.(1912) App. Cases.149 at 165, Lord Kinnear observed:If the duty be established, I do not think there is any serious question as to the civil liability.IN Gutter v. Wandsworth Stadium Ltd. (1949) App. Cas.398 at 407, Lord Simonds said:For instance, if a statutory duty is prescribed but no remedy by way of penalty or otherwise for its breach is imposed, it can be assumed that a right of civil action accrues to the person who is damnified by the breach.Thus for there is no difficulty. The next question is to define the legal basis on which, the right could be enforced against the stranger purchaser. When interpreting the section, one can properly assume that Parliament had in mind the practice of" pre-emption present in the country and the several pre-emption laws. A Legislature may be deemed to be conversant with the laws current within its territory. But that will not permit the adoption of the incidents of pre-emption recognised or provided for in other pre-emption laws, and in the Muslim law of pre-emption.