Dhanno v Radhey Shyam and others

IN THE HONBLE HIGH COURT OF PUNJAB AND HARYANA

Case concerning, Preferential Right on acquire Property.

Dhanno
(Appellant)
Vs.
Radhey Shyam and others
(Respondent)

On submission to the Honble HIGH COURT OF PUNJAB AND HARYANA

Memorandum on behalf of the Respondent

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Dhanno v Radhey Shyam and others

TABLE OF CONTENTS

1. INDEX OF AUTHORITIES -------------------------------------3

LIST OF CASES.....................................................................3
STATUES AND CHARTERS..................................................3
LIST OF BOOKS.....................................................................3

2.
3.
4.
5.
6.
7.

ABBREVIATIONS -------------------------------------------------4
STATEMENTS OF FACTS --------------------------------------5
ISSUES RAISED ---------------------------------------------------6
SUMMARY OF ARGUMENTS ---------------------------------7
ARGUMENTS ADVANCED -------------------------------------8
PRAYER ----------------------------------------------------------11

________________________________________________________________

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Dhanno v Radhey Shyam and others

INDEX OF AUTHORITIES
LIST OF CASES

Smt Kusum Kumaria & ors Vs S.P Kumaria and Anr - AIR 1968 Mh 261

Jeewanram v/s Lichmadav -AIR 1981 Raj 16.

Muralidhar Das vs Bansidhar Das and Ors, AIR 1983 Ors. 163

Valliyil Sreedevi Amma v. Subhadra Devi, AIR 1976 Ker 19

Tarak Das Ghosh v. Sunil Kumar Ghosh, AIR 1980 Cal 53

STATUES AND CHARTERS

Sections- 22 Hindu Succession Act (1956)

LIST OF BOOKS Satyajeet A Desai, Mulla, Hindu Law , 21 Edn. Lexis Nexis
2010.

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LIST OF ABBREVIATION
1. A.I.R.

: All India Reporter

2. Accord.

: According.

3. App.
4. Approx.
5. Cal
6. Ed.
7. Esp.
8. Etc.
9. Honble
10. Ker
11. MP
12. MPLJ
13. No.
14. Ori
15. Ors.
16. P&H
17. pg.
18. Pun LR
19. Res.
20. SC
21. SCC
22. SEC
23. v.

: Appellant
: Approximately
: Calcutta
: Edition.
: Especially
: etcetera
: Honorable
: Kerala
: Madhya Pradesh
: Madhya Pradesh law journal
: number
: Orissa
: Other
: Punjab & Haryana
: page
: Punjab law journal
: Respondent
: Supreme Court
: Supreme Court Cases
: Section
: Versace

Statement of facts

Ram Singh was the owner and in possession of agricultural land, situated within, District
Panipat.

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Dhanno v Radhey Shyam and others

After death of Ram Singh, his widow Rukmani, daughters Chandro, Dhanno, Shanti,
Premo & Santosh and sons Hawa Singh, Balbir Singh & Jagira inherited the property in

question in natural succession.

Dhanno along with her sister had already transferred her share in respect of the suit
property in favor of Jagira, Balbir and Chandro, through the medium of judgment and
decree dated 8.1.1990 (Ex.D2 and Ex.D3) respectively. The mutation bearing No.2394
has already been sanctioned by the revenue officer, the plaintiff has left with no right in

the joint property and she cannot invoke the provisions of Section 22 of the Act.
The other inherits wants to sell their part of land to Defendant 1, Radhey Shyam.
Defendant No.2 to 11 were entered into an agreement dated 28.1.1990 to sell the land
measuring 24 kanals 0 marla, out of land measuring 31 kanals 2 marlas in dispute with

defendant No.1.
The plaintiff claimed that she is successor and co-owner of the property with the
defendants, and she has a preferential right to acquire the disputed property but she had
already transferred her share of property in favor of 3 defendants, so, she is no more a co-

sharer and has left with no interest in the property in dispute.

The Trial Court dismissed the suit of the plaintiff, by virtue of impugned judgment and

decree dated 18.8.2009.

Aggrieved by the decision of the trial Court, the plaintiff filed the appeal, which was
dismissed, by the 1st Appellate Court, by way of impugned judgment and decree dated

23.2.2010.
After hearing the learned counsel for the parties, going through the record with their
valuable help and after considering the entire matter deeply, stated that, there is no merit

in the present appeal in this context.

The plaintiff has left with no right in the joint property and she cannot invoke the
provisions of Section 22 of the Act.

CONTENTIONS RAISED

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Whether the plaintiff has any preferential right to acquire the share of
defendants no.2 to 6 which they intended to transfer in favor of
defendant no.1 vide agreement to sell dated 28.1.1990.?

Whether the suit filed by the plaintiff is maintainable or not?

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Summary of Pleadings
Whether the plaintiff has any preferential right to acquire the share of
defendants no.2 to 6 which they intended to transfer in favor of defendant
no.1 vide agreement to sell dated 28.1.1990.
It is humbly submitted that, the plaintiff Smt. Dhanno was the co-sharer of the property as by
natural succession along with her brothers and sisters. On 8.1.1990 Dhanno and her sister
transferred their share in favor of Jagira, Balbir and Chandro and it has been sanctioned by the
revenue officer. The remaining co-sharer of the property wants to sell their property to the
defendant no. 1, she is seeking a decree for possession by way of preferential right to acquire the
share of defendant 2 to 6. Now at the time of selling the property, plaintiff has left with no right
in the joint property and she cannot invoke the provisions of Section 22.

Whether the suit filed by the plaintiff is maintainable or not?

It is respectfully submitted that, It is a settled fact in Dist Court as well as Appellate Court that
the property was already transferred by the plaintiff dated 8.1.1990 to the rest of the co-sharers.
So she has already lost her rights over the property.
Secondly the learned co-council has not presented any new grounds or witnesses on which the
suit should be allowed to continue in the High Court.

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WRITTEN SUBMISSION
Whether the plaintiff has any preferential right to acquire the share of
defendants no.2 to 6 which they intended to transfer in favor of defendant
no.1 vide agreement to sell dated 28.1.1990.
It is humbly submitted the section 22 Clause (1) of Hindu Succession Act 1956 1 Preferential
right to acquire property An interest in any immovable property of an intestate, or in any
business carried on by him or her, whether solely or in conjunction with others, devolves upon
two or more heirs specified in class I of the Schedule, and any one of such heirs propose to
transfer his or her interest in the property or business, the other heirs shall have a preferential
right to acquire the interest proposed to be transferred.
The plaintiff Smt . Dhanno is the daughter of Ram Singh. After death of
Ram Singh his daughters Chandro, Dhanno, Shanti, Premo & Santosh and sons Hawa Singh,
Balbir Singh & Jagira inherited the property as in natural succession. Defendant Nos.2 to 11
were stated to have entered into an agreement dated 28.1.1990 to sell the land measuring 24
kanals 0 marla, share out of land measuring 31 kanals 2 marlas in dispute with defendant No.1.
Dhanno along with her sister had already transferred her share in respect of the suit property in
favour of Jagira, Balbir and Chandro, through the medium of judgment and decree dated
8.1.1990 (Ex.D2 and Ex.D3) respectively. The mutation bearing No.2394 has already been
sanctioned by the revenue officer, the plaintiff has left with no right in the joint property and she
cannot invoke the provisions of Section 22 of the Act. She were having a preferential right to
acquire the property of an intestate and raise question on selling the property coming from the
father if she was not transferred her share in respect of the suit property in favor of her brother
and sister. Now at the time of selling the property plaintiff has left with no right in the joint
property and she cannot invoke the provisions of Section 22 of the Act.

1 Section 22 of Hindu Succession Act 1956 preferential right to acquire property.

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In the case of Smt Kusum Kumaria & ors Vs S.P Kumaria and Anr, 2 the intestate is
one late Mr. R.R. Kumaria on 22.5.1962 leaving behind 5 class 1 heir, widow sons and daughter
Savitri, Kusum, Nirmala, S.P Kumaria, Sudarshan Kumaria respectively. The daughter Nirmala
and Kusum have relinguished their entire property in favor of their brothers. Sudarshan also died
leaving behind his widow Urmila and Son Mohit. When the Property was selling by S.P.
Kumaria3 the sisters also wants their share under section 22 of preferential right on the acquired
property. So the court held that the plaintiff has no right in the joint property and she cannot ask
for the share, she is no more a co-sharer of the property.
In the case of Muralidhar Das vs Bansidhar Das and Ors 4, the
petitioner became an heir specified in Class 1 of the Schedule to the Hindu Succession Act along
with opposite parties 1 to 4 in respect of certain property by virtue of intestate succession under
the Act. Opposite parties 1 to 4 having transferred their interest in the property which devolved
upon all of them by intestate succession, the court held that they are no more a co-sharer of the
property after transfer of their share. Division Bench decision of the Orissa Court in the case
5

which has been followed in a single judge decision of the Calcutta High Court in the case of

Tarak Das Ghosh v. Sunil Kumar Ghosh.

2 Smt Kusum Kumaria & ors Vs S.P Kumaria and Anr AIR 1968 mah 261
3 Jeewanram v/s Lichmadav & 1981 Raj 16.
4 Muralidhar Das vs Bansidhar Das and Ors, AIR 1983 Ors. 163
5 Valliyil Sreedevi Amma v. Subhadra Devi, AIR 1976 Ker 19
6 Tarak Das Ghosh v. Sunil Kumar Ghosh, AIR 1980 Cal 53

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Whether the suit filed by the plaintiff is maintainable or not?

The trial Court dismissed the suit of the plaintiff, by virtue of impugned judgment and decree
dated 18.8.2009. The plaintiff filed the appeal, which was dismissed by the Ist Appellate Court,
by way of impugned judgment and decree dated 23.2.2010.
Learned lower court has rightly concluded that the plaintiff has no cause
of action and the suit seems to have been filed by defendants no.2 to 11 in collusion with the
plaintiff in order to get the judgment and decree obtained by defendant no.1 in a suit for specific
performance of agreement set aside.
It is a settled fact in Dist Court as well as Appellate Court that the
property was already transferred by the plaintiff dated 8.1.1990 to the rest of the co-sharers. So
she has already lost her rights over the property. As proved from the above arguments.
Secondly the learned co-council has not presented any new grounds or
witnesses on which the suit should be allowed to continue in the High Court.

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PRAYER
Wherefore, in the light of the issues raised, arguments advanced, reasons given and authorities
cited, this Honble Court may be pleased to:

1. Upheld the judgment delivered and the decree passed by the Honble Trial court and
Appellate Court.
2. The appeal to be dismissed.
And any other relief that the Honble Court may be pleased to grant in the interest of equity,
justice and good conscience.

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AND FOR THIS THE RESPONDENTS SHALL FOREVER PRAY.

Counsel on behalf of respondents

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