This article examines the redundancy arising from the overlap between Section 4 of the Partition Act, 1893 and Section 22 of the Hindu Succession Act, 1956. The author argues that applying both provisions to HJF Property creates unnecessary dual protection for dwelling houses, amounting to a complete bar on alienation of the property.

Introduction

In a recent case, the Kerala HC has ruled that in a pre-emption lawsuit under the Hindu Succession Act, 1956 [“HSA”], the court can investigate the validity of a prior sale by the co-heirs as part of the case, and a separate prayer to set aside the sale deed is not mandatory. In this case, the plaintiff could not exercise her pre-emption right under Section 22 of the HSA because the defendants had already sold their shares to an outsider. While the court’s approach was correct, an easy way out under the current legal framework for the plaintiff would have been to use Section 4 of the Partition Act, 1893 [“Partition Act”] once the outsider sued for partition. However, this article argues that the current legal framework in so far as it allows the opportunity of pre-emption twice is problematic.

Section 22 of the HSA accords the co-owners of a joint property a right of pre-emption to acquire a co-owner’s interest ‘proposing to transfer’ their interest. Section 4 of the Partition Act provides a similar right of pre-emption for dwelling houses. It states that where an interest in the dwelling house has already been transferred to a stranger (who is not a member of the undivided family), members of the undivided family have a right of pre-emption over others if the stranger ‘sues for partition’.

This paper argues that applying Section 4 of the Partition Act in cases where the HSA is already applicable violates Section 10 of the Transfer of Property Act, 1882 [“TPA”] and the maxim alienation rei prefertur juri accrescendi (law favours alienation to accumulation) in general. To that end, the first part briefly introduces and contextualises the Partition Act with the relevant provisions of the HSA and the TPA. The second part demonstrates how Section 4 of the Partition Act when coupled with Section 22 of the HSA unnecessarily extends dual protection to a dwelling house. The third part explains how this dual protection undermines the right to alienation. The final part concludes.

An Analysis of the Provisions on Pre-emption

The right of pre-emption under Section 22 of the HSA is not restricted to dwelling houses alone. However, as the section indicates (by using the phrase ‘proposes to transfer’), it can be exercised only before the transfer is complete. Once transfer is complete, a co-owner cannot claim his right under Section 22. While some High Courts have ruled that the section can still apply in cases of complete transfer, this is an anomaly. The section is clear that it is not applicable after a transfer is complete unless the transfer violates Section 22(1). The provision was incorporated to ensure the peaceful enjoyment of the joint family property and protect privacy.

Section 4 of the Partition Act has the same objective. It is an extension to Section 44 of the TPA which further protects an undivided family’s privacy by prohibiting strangers from taking possession of his interest in a joint property. If such an intrusion does occur, the proper recourse for the stranger is to ‘sue for partition’ under Section 4 of the Partition Act which grants other co-owners the right of pre-emption. However, it differs from Section 22 of the HSA in two ways. Firstly, Section 22 pertains to any joint property, whereas Section 4 of the Partition Act is limited to dwelling houses only. Secondly, Section 22 applies only to individuals listed in Section 2 of the HSA, while Section 4 is a secular provision and applies irrespective of religion.

The right of pre-emption is an exception to Section 10 of the TPA which bars the imposition of absolute restraints that hinder the transferee from relinquishing or disposing of his interest. However, applying Section 4 of the Partition Act where the HSA is already applicable gives a dwelling house dual protection to an unnecessary extent. The next part demonstrates how this is the case.

The Dual Application of Section 22 (HSA) and Section 4 (Partition Act)

Before delving into how this dual protection violates Section 10 of TPA or alienation in general, it is important to understand how it works. Suppose an HUF owns a joint property. One of the co-owners ‘A’, decides to sell his interest in the dwelling house (which was jointly owned by the HUF) to an outsider ‘S’. Under Section 22 of the HSA, other co-owners have a preferential right to acquire A’s interest who is ‘proposing to transfer’ to S. Now, if none of the co-owners exercise their right under Section 22 and A transferred his share to S, Section 4 of the Partition Act comes into play. When S ‘sues for partition’, the co-owners again have a right to pre-empt S and buy his interest. This is how the dual protection works.

Dwelling House does not Require Additional Protection In Contemporary Times

One may argue that a dwelling house by its very nature warrants more privacy, and hence, an additional layer of pre-emption is justified. However, this fails for three reasons. First, joint families have mostly diminished from the Indian landscape. According to the 2011 census, only 20% of Indian households are joint, and scholars believe this trend is likely to continue. Thus, the issue of privacy in this context is bound to diminish. In these times, when two brothers often form two independent households even within the same city (even when the ancestral property is not partitioned), this dual application impacts the right of alienation. Consider the above illustration in this context; with A and B as brothers. Here, B would have pre-emption right (that too twice) even when he’s not even living in the JFP and the privacy issue does not arise.

Additionally, the Hindu Code Bill was initially introduced to create a comprehensive code for Hindus, simplifying the need to refer to multiple statutes. Allowing dual application of the right of pre-emption (a very weak right as demonstrated below) would contradict this purpose.

Additional Protection under HSA is unreasonable and Violative of Article 14

The dual protection creates a distinction between people governed by HSA and those governed by other laws. Even if one argues that the special protection given is to achieve some object of the legislature, no justification has been given as to why those governed by HSA are entitled to dual protection for dwelling houses. The SC has also consistently held that, apart from Section 4 of the Partition Act, no other law entitles a co-owner to purchase a share sold to an outsider. It is apparent that the application of Section 4, when Section 22 of the HSA is already applicable is an anomaly, ignored by both the legislature and the courts.

In the case of Atam Prakash v State of Haryana, Section 15 of the Punjab Pre-emption Act was deemed unconstitutional as it was discriminatory towards women and their relatives. Similarly, applying Section 4 of the Partition Act where the HSA is already applicable is discriminatory. As held in John Vallamottam v UOI, personal laws need to satisfy the test of reasonable classification under Article 14. It held that the legislature cannot restrict the Christians’ right to dispose of property upon death without a reasonable basis, especially when no other religions have such a restriction. Similarly, giving special protection to those governed by HSA fails the reasonable classification test. It is neither based on any intelligible differentia nor does it have an object to achieve (but a mere anomaly); let alone having any rational nexus to such object. Thus, it violates Article 14.

The next part will argue that the redundant provisions additionally create a loophole around the Limitation Act, and adversely impact the right of the owners to alienate the property, and hence, must be amended accordingly.

This article has been written by Ritesh Raj from NLSIU. The article has been edited & coordinated by Hamza Khan and posted by Abhishek Sanjay from the Student Editorial Board.