KRUSHNA MALLIK Vs. BISHNU MOHAN DAS AND

JUDGEMENT

(1.) The defendants 11 and 12 are in appeal against the decision of the appellate Court modifying the judgment and decree passed by the trial Court in a suit in which the plaintiffs claimed for partition and allotment of their shares and also to purchase the share of their brother (defendant No. 9) which had been alienated, in exercise of their right Under Section 22 of the Hindu Succession Act, 1956 (herein - after to as 'the Act')

(2.) IN order to know the relationship of the plaintiffs with defendants 9 and 10 and also for an easy grasp over the dispute between the parties, the following genealogy may be usefully noted : Parikhita Das (dead)| - - - - - - - - - - - - - - - - - - - - - - - - -| |Gopal Bhikari (alive)(died in 1970) | | | - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Ramachandra| | | (D. 10)Bhagaban Bishnumohan Harekrushna(P. 1) (P. 2) (P. 3)

(3.) DEFENDANTS 11 and 12 only have contested the suit In their joint written statement, they averred that the land measuring Ac 106 declaims was reclaimed not by Gopala but by Parikhita along with Mohan. Saturi and Guruprasad and in course of time those co -owners ' Partitioned the said property, by metes and bounds and possessed their respective shares. After the death of Parikhita. his share was tioned by metes and bounds between Gopala and Bhikari equally and after the death of Gopal. his share came to be divided amongst the plain tiff and defendant 9 equally by metes and bounda. DefendanJ 10 got the share of Bhikari by an ore, gift. Thus while defendant 9 was 1/24th interest in the entire acquired land, defendant 10 had i/8th of the previous partition by metes and bounds not only the sons and grandsons of Parikhita, the suit for partition was misconceived. After stating the issues and findings of courts belwo ,, it is held; 8. The second contention undoubtedly raises an important question regarding the interpretation and scope of Section 22 of the Act. This requires me to determine whether the words immovable property of an intestate occurring therein include agricultural land of an intestate or not . To examine this question , it will be use full to read Section 22(1) of the Act and Entry no. 18 in List II (State List and Entry Nos. 5 and 6 contained in List II ( Concurrent List ) of the Seventh Schedule to the constitution . Section 22(1) of the Act is as under: '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 soley or in conjunction with others, devolves upon two or more heirs specified in Class 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 nave a preferential right to acquire the interest proposed to be trans - ferred. (2) to (3) xxx xxx xxx 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.' The aforesaid entries read as under : 'List -II Entry No. 18 : Land, that is to say, right in or over land, land tenures including the relation of landlord and tenant ; and the collection of rents, transfer and alienation of agricultural land ; colonization.' 'List -III Entry No. 5 : Marriage and divorce ; infants and minors ; adoption ; wills, intestacy, succession ; joint family and partition ; all matters in respect of which parties in judicial proceedings were immediately before the commencement of this Constitution subject to their personal law.''Entry No. 6 ; Transfer of property other than agricultural land ', registration of deeds and documents'.