1. This civil revision under Section 115 of CPC has been filed against the order dated 15/11/2010 passed by Civil Judge, Class II, Gohad, District Bhind in MJC No.10/2008, by which an application filed by respondent No.1 under Section 22(2) of the Hindu Succession Act has been allowed, and sale- deed dated 22/11/2003 has been set aside, and non-applicants No. 2 to 6 have been directed to execute a sale-deed in favour of respondent No.1 for a consideration amount of Rs.10,000/-.

2. Challenging the order passed by the Court below, it is submitted by counsel for applicant that respondent No.1 and respondents No.2 to 6 are related to each other and undisputedly, respondent No.1 has a preferential right to purchase the property in dispute. Earlier, by registered sale-deed dated 19/02/1988, Hakim Singh, who had 1/4th share after the death of his father Harvilas had sold the property in dispute to one Bashir Ahmed. Accordingly, respondent No.1 had filed a suit for declaration of title, enforcement of preferential right, and for correction of the revenue records against respondents No.2 to 6 as well as Bashir Ahmed. The said suit was decreed by judgment and decree dated 18/09/1993 passed by Civil Judge, Class-II, Gohad, District Bhind, and it was held that respondent No.1 has a preferential right to purchase the share of Hakim Singh and sale-deed dated 19/02/1988 executed in favour of Bashir Ahmed was set aside. It is submitted that thereafter respondent No.1 did not take any step to get the sale-deed executed and ultimately, Hakim Singh sold the property in dispute to applicant by registered sale-deed dated 22/08/2003 for a consideration amount of Rs.83,700/-. It is submitted that thereafter, respondent No.1 filed an application under Section 22(2) of the Hindu Succession Act for enforcement of his preferential right, and by the impugned order the Trial Court has declared the sale-deed executed in favour of applicant as null and void and has directed that respondents No.2 to 6 shall execute a sale-deed in favour of respondent No.1 on payment of a consideration amount of Rs.10,000/-.

3. Challenging the order passed by the Court below, it is submitted by counsel for applicant that initially in the year 1993, the suit filed by respondent No.1 was allowed and his preferential right to purchase the property in dispute was adjudicated in his favour. However, for the next ten years, he did not take any step. Furthermore, as required under Section 22 of the Hindu Succession Act, it was also obligatory on the part of the Trial Court to determine the cost of the property, which has not been done by the Trial Court.

4. None appears for respondents though served.

5. Heard the learned counsel for the applicant.

6. Section 22 of the Hindu Succession Act reads 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 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 proposes 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.

          (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 there are two or more heirs specified in class I of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred.

          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."

7. Thus, it is clear that Class-I heir has a preferential right to purchase the property in order to keep a stranger away from the family property. In the present case, Hakim Singh had alienated his share to one Bashir Ahmed by a registered sale-deed dated 19/02/1988. The suit filed by respondent No.1 was decreed by judgment and decree dated 18/09/1993 and the sale-deed executed in favour of Bashir Ahmed was set aside, and it was held that respondent No.1 has a preferential right to purchase the property in dispute.

8. It is the case of applicant that thereafter, respondent No.1 went in hibernation and did not take any step, and ultimately, in the year 2003 Hakim Singh alienated the property in dispute to applicant by a registered sale-deed dated 22/08/2003.

9. So far as the contention of counsel for applicant that respondent No.1 went in hibernation and did not take any step for execution of judgment and decree dated 18/09/1993 and did not take any step for execution of a sale-deed in exercise of his preferential right to purchase the property is concerned, in the considered opinion of this Court, the said submission is misconceived and is contrary to law. From the impugned order, it is clear that respondent No.1 had filed an application for execution of judgment and decree dated 18/09/1993, and during the pendency of the said execution proceedings, Hakim Singh had executed a registered sale-deed dated 22/08/2003 in favour of the applicant. Ultimately, the execution proceedings were dismissed in the year 2007. Thus, it is clear that respondent No.1 did not go in hibernation and in fact he was making every step to get the judgment and decree dated 18/09/1993 executed. A specific question was put to counsel for applicant as to when the application for execution of decree dated 18/09/1993 was filed, but counsel for applicant fairly conceded that he is not aware of the said date. As per Article 136 of the Limitation Act, the period of limitation for execution of a decree is 12 years. Since respondent No.1 was active and was already making an effort to get the judgment and decree dated 18/09/1993 executed, therefore, this Court is of the considered opinion that it cannot be said that respondent No.1 went in hibernation after obtaining the judgment and decree dated 18/09/1993.

10. It is submitted by counsel for applicant that in such a situation respondent No.1 should have filed a separate suit and should not have filed an application under Section 22(2) of the Hindu Succession Act, but this Court is of considered opinion that the aforesaid submission cannot be accepted.

11. A Co-ordinate Bench of this Court in the case of Vishwanath Gupta and Others vs. Virendra Nath Agrawal and Others , reported in (2007) 2 JLJ 347, has held as under:

          17. On going through the provisions of section 22 of the Act it is gathered that this provision has been enacted in the said Act to keep out strangers coming into the heirs of Class I of the Schedule after coming into force of the Act. On going through this provision it is also luminously clear that the alienation of his interest by a co-heir in violation of section 22(1) is not void, but is voidable at the instance of other non-alienating co-heirs. In this regard I may profitably rely Division Bench decision of the Kerala High Court Valliyil Sreedevi Amma v. Subhadra Devi [AIR 1976 Ker 19.] wherein it has been held that if a co-heir transferring his interest in violation of section 22(1), the remedy of other co-heirs to acquire transferred interest is by way of suit and such suit is maintainable and the transfer made by co-heir of his share is voidable and not void. Thus the transfer made by defendant no. 1, who is a co-heir is voidable and the suit can be brought at the instance of other co-heirs challenging the alienation to a stranger since it is a voidable transaction. I may further add that it is the sale against the right of co-heirs that would constitute an infringement of the right conferred under section 22(1) of the Act.

          In other words, the cause of action is a sale to a third party without reference to the other co-heirs who might have purchased the property for the proper price, if it had been offered to them.

          18. On bare perusal of section 22 it is as clear like a noon day that preferential right has been accrued to a co-heir to purchase the share of alienating co-heir, and I am of the view that the burden of proof of waiver of such right is upon the purchaser to establish that other co-heir has waived his preferential right. Thus where one of the co-heirs transfers his interest in a immovable property in violation of section 22(1) of the Act the remedy of other co-heir to enforce his preferential right under the said provision is by way of filing regular civil suit.

12. From plain reading of the aforesaid paragraphs, it is clear that any alienation of interest of a co-heir in violation of Section 22(1) is not void but is voidable at the instance of other non-alienating co-heirs. Although, a feeble attempt was made by counsel for applicant by submitting that preferential right has to be exercised by the co-heir prior to execution of the sale-deed, but the said contention cannot be accepted. Any transaction would become voidable only when the transaction has come into existence. Furthermore, it is specifically held in paragraph 17 of the judgment passed in the case of Vishwanath Gupta (supra) that alienation of his interest by a co-heir in violation of Section 22(1) is not void, but it is voidable. Thus, whether the co-heir has already alienated the property or is proposing to alienate the property will not make any difference, and in either circumstances, the sale-deed or proposed act of the co-heir can be challenged under Section 22 of the Hindu Succession Act.

13. Although, it is submitted by counsel for applicant that proceedings under Section 22 of the Hindu Succession Act are summary in nature, therefore, they cannot be treated as suit, but in the considered opinion of this Court, the said submission made by counsel for applicant cannot be accepted. Accordingly, counsel for applicant was directed to draw a distinction between a regular suit and a summary suit as per the provisions of CPC.

14. Counsel for applicant fairly conceded that there is no difference between the summary suit and regular suit under Section 9 CPC.

15. By referring to judgment passed by Kerala High Court in the case of Valliyil Sreedevi Amma vs. Subhadra Devi and Others , reported in AIR 1976 Kerala 19, and the judgment passed by Co-ordinate Bench of this Court in the case of Ghewarwala Jain vs. Hanuman Prasad and Another reported in AIR 1981 MP 250, it is submitted by counsel for applicant that application under Section 22 of Hindu Succession Act was not maintainable.

16. However, this Court is of considered opinion that the judgment passed by Co-ordinate Bench of this Court in the case of Ghewarwala Jain (supra) and judgment passed by Kerala High Court in the case of Valliyil Sreedevi Amma (supra) cannot be read contrary to what has been held by the Co-ordinate Bench of this Court in the case of Vishwanath Gupta (supra) , because in the case of Vishwanath Gupta (supra) both the aforementioned judgments have been taken note of. Thus, it is held that the challenge to the sale-deed by filing an application under Section 22 of Hindu Succession Act is maintainable.

17. It is further submitted that the trial Court has not adjudicated the price money or the consideration amount of the land in dispute, and therefore, the order under challenge is bad in law.

18. The aforesaid submission made by counsel for applicant is misconceived and is hereby rejected. The trial Court, by the impugned order dated 15/11/2010, has specifically stated that respondents No.2 to 6, who are the legal representatives of Hakim Singh, shall execute the sale deed in favour of respondent No. 1 for a consideration amount of Rs.10,000/-. The amount of Rs. 10,000/-, which was adjudicated by the trial Court, was based on the consideration amount for which Hakim Singh had alienated the property to Bashir Ahmed i.e., earlier sale-deed.

19. So far as the question of determination of the market value of the property in dispute is concerned, counsel for applicant is right that respondents No.2 to 6 should not have been directed to execute the sale-deed for a consideration amount of Rs.10,000/-. Admittedly, the sale-deed in favour of Bashir was executed in the year 1988 and the sale-deed in question which has been executed in favour of applicant is dated 22/08/2003. The applicant had purchased the property for a consideration amount of Rs.83,700/- and the subject matter of the dispute was the sale-deed executed by Hakim Singh in favour of applicant and, therefore, under these circumstances, this Court is of considered opinion that the Trial Court should have taken consideration amount of Rs.83,700/-, for which the sale-deed dated 22/08/2003 was executed in favour of applicant, as the market value of the property in dispute and instead of directing that the respondents No.2 to 6 should execute a sale-deed in favour of respondent No.1 for a consideration amount of Rs.10,000/- should have directed that respondents No.2 to 6 shall execute a sale-deed in favour of respondent No.1 for consideration amount of Rs.83,700/-. Now, once respondents No.2 to 6 have already received an amount of Rs.83,700/- from the applicant and the sale-deed executed in favour of applicant has been set aside only on the ground that the respondent No.1 had preferential right to purchase the property, therefore, it is directed that the amount of Rs.83,700/- to be paid by respondent No.1 shall be credited in the account of applicant and the respondents No.2 to 6 shall execute the sale-deed in favour of respondent No.1 for a consideration amount of Rs.83,700/-.

20. So far as, the stamp duty is concerned it shall be payable in accordance with law by the respondent No.1 and therefore, whether the stamp duty is payable on the existing market price or is payable on the amount of Rs.83,700/- shall be decided by the competent authority under the Stamp Act, but the sale-deed shall be executed for a consideration amount of Rs.83,700/- which shall be directly credited in the account of applicant.

21. Respondent No.1 is directed to deposit an amount of Rs.83,700/- in the Trial Court, and applicant shall be entitled to withdraw the said amount from the Trial Court. The amount shall be deposited by respondent No.1 within a period of two months from today. The respondents No.2 to 6 shall also be under obligation to execute the sale-deed in favor of the respondent No.1 immediately after the amount of Rs.83,700/- is deposited in the Trial Court. In case if respondents No.2 to 6 fails to execute the sale-deed in favor of respondent No.1, then respondent No.1 shall be entitled to get the sale-deed executed through the Court. Since the sale-deed executed in favor of applicant on 22/08/2003 has already been set aside by the Trial Court, therefore, applicant will not be required to sign the sale-deed to be executed in favor of respondent No.1 as a consenter.

22. With aforesaid observation, this civil revision is partially allowed, and order dated 15/11/2010 passed by Civil Judge, Class II, Gohad, District Bhind in MJC No.10/2008 is modified and instead of Rs.10,000/-, it is directed that the sale-deed in favor of respondent No.1 shall be executed for a consideration amount of Rs.83,700/-.

23. With aforesaid observation, the civil revision succeeds in part and is disposed of accordingly.