JASWANT ETC. Vs. SHRIMATI 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 consideration for which any interest in the property of the deceased may be transferred under this Section shall, in the absence of any agreement between the parties, be determined by the Court on application being made to it in 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 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 decision 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 co -heir 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 that in every case Sub -section (2) will present difficulty when it is being sought to be applied to a completed transfer.