JASWANT AND OTHERS Vs. SMT. BASANTI DEVI

JUDGEMENT

(1.) IN pursuance of my order dated February 21, 1969, with the concurrence of my Lord the Chief Justice, this case was referred to a larger Bench and that is how it has been placed before us.

(2.) THE facts of this case are set out in the referring order and I am reproducing the same from that order: -

(3.) IF this section is literally interpreted, these difficulties do crop up, but then this provision will become otiose and its very purpose will be defeated by a surreptitious transfer or an open transfer before a division to transfer it is known. In my opinion, the words' proposes to transfer' include a completed transfer. Once this interpretation is placed, Section 22 would work and become operative. When this was pointed out to the learned Counsel for the Appellants, he contended that Sub -section (2) of Section 22 will become otiose because in the case of a completed transfer, there would be no question of the Court stepping in and fixing the price of the property in case there is an honest and a valid contract. This would not be so. If proper market value has been paid no question to determine the price will arise. In any case, there is nothing in the Sub -section which prevents the coheir to accept the stipulated price. But in case the price fixed is fictitious, the Courts will determine the price under the Sub -section. There are other types of transfers such as gifts and exchanges. In such types of transfers, even if complete, the Sub -section will come into play. Therefore, it is idle to suggest in every case Sub -section (2) will present difficulty when it is being sought to be applied to a completed transfer.