Holding

A suit for a preferential right under Section 22 of the Hindu Succession Act must be filed within the one‑year limitation period and cannot be entertained through amendment of the plaint when the claim is time‑barred.

Summary

The predecessor of the appellant filed a suit on 21 May 1990 for declaration of title, possession and setting aside a sale deed. During the pendency, two further sale deeds were executed, and an interim order of status quo was granted. Thirteen years later, on 11 June 2003, the appellant sought to amend the plaint to claim a preferential right under Section 22 of the Hindu Succession Act, asserting co‑sharer status. The trial court and the High Court rejected the amendment, holding it was barred by the one‑year limitation prescribed in Article 97 of the Limitation Act, 1963. The Supreme Court affirmed that a claim for preferential right must be filed within the statutory limitation period and that the court will not exercise its discretionary jurisdiction to allow amendment of a plaint when the claim is time‑barred. Consequently, the appeal was dismissed.

Issues considered

Whether an amendment to a plaint seeking a preferential right under Section 22 of the Hindu Succession Act can be entertained when the claim is barred by the limitation period.
Whether the long pendency of the original suit affects the limitation period for the preferential right claim.
Whether Section 22 of the Hindu Succession Act can be invoked after the sale deeds have been executed.

Legislation cited

Code of Civil Procedure, 1908s. Order VI, Rule 17
Constitution of Indias. Article 136
Hindu Succession Act, 1956s. Section 22
Limitation Act, 1963s. Article 97

Subjects

amendment of plaintlimitation periodpreferential rightHindu Succession Actpre‑emptioncivil procedureco‑sharerdeed of sale

Judgment

[2008] 6 S.C.R. 801

-
ASHUTOSH CHATURVEDI •. " A
v.
PRANO DEVI @ PARANI DEVI & ORS.
(Civil Appeal No. 2893 of 2008)
APRIL 22, 2008
B
( S.B. SINHA AND V.S. SIRPURKAR, JJ )

Code of Civil Procedure, 1908:
Or. VI, r. 17 - Amendment of plaint - Limitation - Suit for
declaration of title and possession and for setting aside a sale C
deed - Trial court granting status quo - Thereafter two more
sale deeds executed - After 13 years plaintiff filing an
application seeking to amend plaint and claiming preferential
rights over suit land as a co-sharer - HELD: - A suit claiming
preferential rights was required to be filed ordinarily within the D
prescribed period of limitation and, therefore, applicant cannot
take any benefit uls 22 of Hindu Succession Act - There is
nothing on record that during pendency of proceedings before
appellate court, there was stay of proceedings of trial Court -
Application being barred by limitation, Court would not E
exercise its discretionary jurisdiction to allow amendment of
plaint - Limitation Act, 1963 - Schedule -Article 97 - Hindu
Succession Act, 1956 - s. 22 - Practice and Procedure -
Constitution of India, 1950 - Article 136.
The predecessor-in-interest of the appellant filed on F
21.5.1990 a suit for declaration of his title to and
possession over the suit land and for setting aside the
sale deed dated 8.3.1990 executed in favour of
respondents-defendants no. 1 and 2. On an application
for interim relief, an order of status quo was passed by G
the trial court. Thereafter two sale deeds were executed
in favour of third parties. Miscellaneous appeals filed by
respondents were stated to have remained pending before
the District Judge for a long time. On 11.6.2003 the
801 H
802 SUPREME COURT REPORTS [2008] 6 S.C.R.

I< ,
A appellant filed an application for amendment of the plaint
seeking to add a new relief claiming preferential rights in
respect of the suit land on the premise that the plaintiff
was a co-sharer thereof. The respondents opposed the
proposed amendment, inter alia, on the grounds that it
B sought to change the entire nature and scope of the suit .--~

as also the cause of action; and that for enforcement of
right of preemption the period of limitation was one year
from date of the sale and the application was filed after
about 13 years of filing of the suit. The trial court rejected
c the application for amendment and the High Court
declined to interfere. Aggrieved, the successor-in-interest
of the plaintiff filed the instant appeal.
Dismissing the appeal, the Court
HELD: 1.1 A right claiming preference over a property
D
in terms of a statute ordinarily is a weak right. Limitation ..,..
Act 1963, by Article 97, provides for one year's limitation
for claiming such a right. The suit was filed in the year
1990. The sale deeds, during the pendency of the suit,
were executed on 8.6.1990 and 18.6.1990. The application
E for amendment was filed 13 years after the filing of the
suit. A suit claiming preferential right was required to be
filed ordinarily within the prescribed period of limitation.
[para 8] [807-E-F]

F 1.2 Execution of the two deeds of sale stated to be in
violation of the order of injunction cannot be a ground for
allowing the amendment of the plaint. If the deeds of sale
are held to be bad in law, that would not mean that by
reason thereof, the co-sharer of the plaintiff would
propose to execute a sale deed giving a cause of action
G
for filing a fresh suit. Plaintiff was required to exercise his
right under Section 22 of the Hindu Succession Act within
the period prescribed therefor. The said deeds of sale -+ "
either would be declared valid or invalid. In either way,
the appellant cannot take any benefit of the provisions of
H
ASHUTOSH CHATURVEDI v. PRANO DEVI @ PARANI 803
DEVI & ORS. [S.B. SINHA, J.)
~ :>\
Section 22 of the Hindu Succession Act. [para 9] [807-G- A
,
... H; 808-A-B]
TN. Alloy Foundry Co. Ltd. v TN. Electricity Board and
Ors. (2004) 3 sec 392; and L.J. Leach and Company Ltd. v.
Jardine Skinner and Co. 1957 SCR 438; State Bank of
~~'f- Hyderabad v Town Municipal Council 2006 (13) SCALE 332; B
- relied on.
2. It cannot be said that the appellant could not file
an application for amendment of plaint as the matters had
been pending in the court of the District Judge for a long
period. There is nothing on record to show that the
c
District Judge granted an order of stay. The application
being barred by limitation, the Court would not exercise
its discretionary jurisdiction to allow the amendment of
the plaint. [para 10, 15 and 16] [808-C-D; 811-F-H]
D
Bhola Nath Rastogi and Ors. v Santosh Prakash Arya
-'!'
and Ors. AIR 1975 Patna 336; and Muralidhar Das v.
Bansidhar Das and Ors. AIR 1986 Orissa 119 - referred to.
Valliyil Sreedevi Amma v Subhadra Devi and Ors. AIR
1976 Kerala 19 - cited. E
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
2893 of 2008.
From the final Judgment and Order dated 21.11.2005 of
the High Court of Judicature at Patna in C.R. No. 1532 of 2003. F
"* Akhilesh Kumar Pandey and Sushanshu Saran for the
Appellant.
Shishir Pinaki, Anju Prakash, Biju Shankar and Sanjay Jain
for the Respondents.
G
The Judgment of the Court was delivered by
;... --t· S.B. SINHA, J. 1. Leave granted.
2. Appellant is before us aggrieved by and dissatisfied
with the judgment and order dated 21.11.2005 passed in CR H
804 SUPREME COURT REPORTS [2008] 6 S.C.R.

)< x
A No.1532 of 2003 by the High Court of Patna whereby and
whereunder an order dated 29.8.2003 passed by Subordinate
Judge VIII, Ara in Title Suit No.58of1990 rejecting an application
for amendment of plaint filed by the appellant herein was
dismissed
B 3. Appellant herein is the son of the original plaintiff who _,..- ..
filed a suit for declaration of his title and confirmation of
possession as also for setting aside a deed of sale executed
by the respondent herein. The said suit was filed on or about
21.5.1990. A deed of sale was executed in favour of defendant
c Nos.1 and 2 on or about 8.3.1990.
An application for passing an interim order was filed in
the said suit whereupon an order of status quo was passed on
1.6.1990. During the pendency of the said suit, two deeds of
sale were executed in favour of third parties on 8.6.1990 and
D 18.6.1990.
~
4. The interim order passed by the learned Trial Judge
was affirmed by an order dated 9.11.1990. Three Miscellaneous
Appeals were filed thereagainst by the respondents. The matters
E were said to be pending before the"District Judge for a long
time. However, on or about 11.6.2003, the appellant herein
moved an application for amendment to add a new relief in one
of the plaints claiming preferential right in respect of the suid
property on the premise that the plaintiff was a co-sharer of the
lands in suit to the following effect :
F
"1 .. That after 1 "Ka" of the plaint one new relief 1 "Kha" >-
•
may be added.
1'Kha'-That if for any reason if there is any difficulty in
granting relief 1 'Ka' then in that situation decree under
G Section 22 Hindu Succession Act (preferential right to
acquire on same terms and conditions) be granted and
the purchaser-defendant be directed that they should
+'""
execute sale deed of the disputed land in favour of the
plaintiff as mentioned in schedule 2, 3, 4 of the plaint and
H get it r~gistered an if for any reason the new purchaser-
I
ASHUTOSH CHATURVEDI v. PRANO DEVI @ PARANI 805
DEVI & ORS. [S.B. SINHA, J.]
--,. .,._
defendant are not executing the sale deed nor are getting A
it registered then in that situation through Court the sale
I
deed may be executed and registered."
-<
_, Respondents herein, in response thereto raised the
following conentions :
,._ .._, B
"a) The application is not maintainable, the same being
mala fide moved with the purpose to linger the trial
of the case,

b) The application is frivolous and bogus and the same
is barred under law of limitation. Under Article 97 of c
the Limitation Act, 1963 for enforcement of right of
pre-emption the prescribed period of limitation is
one year from the date of sale, whereas this suit was
filed in the year 1990 and the amendment is sought
· on this ground in 2003 after about 13 years of the D
->t: filling of the suit,
c) The proposed amendment seeks to change the entire
nature and scope of the suit and also the cause of
action,
E
d) The amendment application is barred under Order II
of CPC,
e) The same is barred under law of waiver and
~ acquiescence,
F
~

~
f) That under the gift deed dated 6.9.49 which has
•
attained finality each donees has got separate and
defined title over their separate shares of gift property,
g) In the past also the plaintiff has moved several
amendment applications and now they are in G
perpetual habit of moving applications seeking
... ..,. amendment in the plaint,
h) That trial of case has started long back and the
application fails to disclosed any reason why the
H
806 SUPREME COURT REPORTS [2008] 6 S.C.R.

>c ,-
A proposed amendment was not carried out in the past."

5. By reason of a judgment and order dated 29.8.2003,
the learned Trial Judge dismissed the said application for
amendment of the plaint opining that the same, if allowed, would
change the nature of the suit.
B
The High Court, by reason of the impugned judgment has
.,.. ..
affirmed the said view of the learned Trial Judge.

6. Mr. Akhilesh Kumar Pandey, learned counsel appearing
on behalf of the appellant, would submit that the learned Trial
c Judge as also the High Court wrongly proceeded on the basis
of Section 22 of the Hindu Succession Act, 1956 was not
attracted in the instant case as the deeds of sale have already
been executed. It was submitted that the word 'proposed'
occurring in the said section must be given a wider meaning so
D as to bring within its purview a right of a co-sharer to file a civil
suit in the event a deed of sale has been executed. Strong
reliance in this behalf has been placed on Val/iyil Sreedevi ""
Amma v. Subhadra Devi and Ors. [AIR 1976 Kerala 19].
7. Mr. Shishir Pinaki, learned counsel appearing on behalf
E
of the respondent, on the other hand, would submit that this Court,
in a case of this nature, need not go into the said question as
admittedly the appellant having waited for a period of 13 years
to claim his purported preferential right in terms of Section 22
of the Hindu Succession Act, the same was not maintainable
F being barred by limitation.
~
.
Section 22 of the Hindu Succession Act reads. thus :
"Section 22.-Preferential right to acquire property
in certain cases-(1) Where, after the commencement
G of this Act, 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, devolve upon
-+ ...
to two or more heirs specified in class I of the Schedule,
and any one of such heirs proposes to transfer his or her
H interest in the property or business, the other heirs shall
ASHUTOSH CHATURVEDI v. PRANO DEVI @ PARANI 807
DEVI & ORS. [S.8. SINHA, J.]
''! ;>\
have a preferential right to acquire the interest proposed A
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,
,./'t be determined by the court on application being made to B
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.
c
(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.-ln this section, "court" means the court within D
_.,. 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."
8. A right claiming preference over a property in terms of a E
statute ordinarily is a weak right.
Limitation Act 1963, by Article 97, provides for one year's
limitation for claiming such a right. The suit was filed in the year
1990. The sale deeds, during the pendency of the suit, were F
~.
executed on 8.6.1990 and 18.6.1990. The application for
amendment was filed 13 years after the filing of the suit. A suit
claiming preferential right was required to be filed ordinarily
within the prescribed period of limitation ..
9. Contention of Mr. Pandey that two deeds of sale were G
executed in violation of the order of injunction and in that view of
the matter, the deeds of sale must be held to be invalid in law, in
~--+
our opinion, cannot be a ground for allowing the amendment of
the plaint. If the deeds of sale are held to be bad in law, that
would not mean that by reason thereof, the co-sharer of the H
808 SUPREME COURT REPORTS [2008] 6 S.C.R. .

)<_ ~

A plaintiff would propose to execute a sale deed giving a cause
of action for filing a fresh suit. Plaintiff was required to exercise
his right under Section 22 of the Hindu Succession Act within
the period prescribed therefor. The said deeds of sale either
would be declared valid or invalid. In either way, the appellant
B cannot take any benefit of the provisions of Section 22 of the
Hindu Succession Act. :r- "
10. It is also idle to contend that as the matters had been
pending in the court of the District Judge for a long period, the
appellant could not file an application for amendment of plaint.
c Even if the records had been called for by the learned District
Judge, the same would not have come in the way of the appellant
for filing an application for amendment of the plaint. A Trial Court,
despite requisitioning of the records by the Appellate Court
maintains a supplementary record. There is nothing on record
D to show that the learned District Judge granted an order of stay.
11. In TN. Alloy Foundry Co. Ltd. v. TN. Electricity Board 1'

and Ors. [(2004) 3 SCC 392], this Court, upon taking into
consideration its earlier decisions in L.J. Leach and Company
Ltd. v. Jardine Skinner and Co. [1957 SCR 438], held that as a
E rule, the Court will decline to allow amendment for a fresh suit
on the amended claim if it had become barred by limitation on
the date of application. {See also State Bank of Hyderabad v.
Town Municipal Council [2006 (13) SCALE 332]}

F 12. In Bhola Nath Rastogi and Ors. v. Santosh Prakash
Arya and Ors. [AIR 1975 Patna 336], L.M. Sharma, J (as the
learned Chief Justice of India then was), opined :
"The general rule of survivorship applying to Hindu
Mitakshara families still holds good subject of course to
G cases which are covered by the provisions of Section 6 of
the Act. The provision of proviso to Section 6 will be
applicable only to such cases where the deceased left :.,.- _.,
bE(hind him surviving a female relative specified in class
I of the Schedule or a male relative specified in that class
H who claims through such female relatives. It is not
ASHUTOSH CHATURVEDI v. PRANO DEVI @ PARANI 809
DEVI & ORS. [S.S. SINHA, J.]

suggested by the appellants in the present case that A
Dhanu Lal died leaving behind any heir other than his two
sons. I am, therefore, of the opinion that the proviso to
Section 6 does not apply to the present case so as to
defeat the rule of survivorship being applied to the parties.
When Dhanu Lal died, his two sons took the entire interest s
by survivorship and as is admittedly the case now there
has been separation between the two sons before the
sale deed by defendants 25 to 28 was executed.
Defendant No.1 or his sons, therefore, cannot be permitted
to invoke the benefit of Section 22 of the Act. c
9. There appears to be another difficulty in the way of
the appellants in raising this question. Sub-section
(2) of Section 22 of the Hindu Succession Act
indicates that a party can enforce a right of pre-
emption by making an application to that effect in a D
Court which has been explained in the Explanation
to this Section. If a party intending to take the benefit
of the right given under Section 22(1 ), files an
application, the Court has to determine the amount
of consideration for the intended transfer and the E
party is again given an option to get such a transfer
from the co-sharer on such consideration or to refuse
the same. If the party declines to purchase the
property for the same amount, he has to bear the
cost of the proceeding. No such application has ever F
been filed by any of the parties anywhere. This plea
' ~.
was not even raised in the Court below. It was for the
first time in this appeal that the appellants have raised
this point. Even in this Court no application has been
filed for enforcement of such a right. In t.hese G
circumstances, the plea has to be rejected."
13. In Muralidhar Das v. Bansidhar Das and Ors. [AIR
1986 Orissa 119], upon taking into consideration the decisions
of the Calcutta and Kerala High Court, stated the law in the
following terms : H
810 SUPREME COURT REPORTS [2008] 6 S.C.R.

A "Sub-section (2) provides for determination of
consideration when there is a difference between the
parties, namely, the one intending to acquire and the other
proposing to transfer. The provision does not go any further.
S. 22 does not lay down any other procedure. The scope
B of the application is limited and hence the jurisdiction of
the Court. The section does not lay down the procedure
for the enforcement of the right conferred under sub-section
(1 ). Only one aspect of the controversies that might arise
pursuant to the right conferred by sub-section (1) has been
c taken care of and no other. The provision being clear and
categorical and there being no ambiguity in it, it is not
open to the Court to so interpret the provision which would
amount to legislating on its part. Ordinarily the Courts do
not make law but interpret it."
D 14. The decision of the Kerala High Court also provides
for a right upon a co-sharer to file a suit for enforcing such a
right, stating :
"The object of sub-section (1) as we understand it is that
in cases where by virtue of intestate succession under the
E Act any interest in immovable property has devolved upon
two or more heirs specified in Class I of the Schedule and
any one of such heirs proposes to transfer his interest in
the property the other heirs should have a preferential
right to acquire the interest which is so proposed to be
F transferred. The said intention of Parliament can be
effectuated only if we consider the section as conferring
an enforceable right on the heirs other than the one who
proposes to transfer his interest. The section confers on
such co-heirs a preferential right to acquire the interest
G which is proposed to be transferred by the other co-heir.
In case the proposed transfer is effected by one of the co-
heirs in violation of the right conferred on his co-heirs by
sub-s.(1) the latter cannot certainly be without a remedy
because every legal right must necessarily carry with it a
H remedy for enforcing the same. The remedy of the non-
ASHUTOSH CHATURVEDI v. PRANO DEVI @ PARANI 811
DEVI & ORS. (S.B. SINHA, J.]

alienating co-heirs, in such circumstances, will, in our A
opinion, be to seek the intervention of the Court to enable
them to acquire the right wh.ich has been transferred away
by the other co-heir in violation of sub-section (1) of Section
22. In as much as the section does not provide any special
procedure for seeking the said remedy, the ordinary B
procedure for enforcement of any civil right has to be
resorted to by the co-heirs who wish to enforce their rights
under Section 22(1 ); in other words the remedy is by way
of a regular civil suit before the competent court. Where
the properties have been already alienated in favour of c
strangers there is all the more reason why there should be
a full and fair adjudication of the entire matter in a suit tried
before a competent civil Court because various factual
questions are bound to arise for determination in such a
suit wherein the principal issue would be whether the D
transfer complained of was effected in violation of sub-
section (1) of Section 22. The main purpose of such a suit
instituted by the co-heir will necessarily be the enforcement
of the right conferred by .Section 22(1) of the Act. The
question of invalidity of the transfer effected by the other
co-heir in favour of strangers becomes relevant in such an E
action as an incidental matter which has necessarily to be
gone into for the purpose of determining whether the
plaintiff is entitled to the relief sought by him against his
co-heirs in enforcement of the right conferred by Section
22(1)." F
15. The only remedy which was, thus, available to the
appellant might be to file a suit. But as the same itself being
barred by limitation, we are of the opinion that the Court would
not exercise its discretionary jurisdiction to allow the amendment G
of the plaint.
16. There is, thus, no infirmity in the impugned judgment.
Appeal is dismissed. No costs.
R.P Appeal dismissed
H