Whether the gift of a immovable property to a stranger to the exclusion of the other heirs of Class-I can be regarded as a transfer ?

There is no ambiguity that the gift is a transfer without consideration. The legislature never conceptualised the gift for consideration or adequate consideration but it is a gratuitous transfer out of love and affection and sometimes for the spiritual benefit of the donor. It is incongruous to say that the gift is not a transfer. It has all the incident of transfer and the right, title and interest of the donor passes to the donee upon execution, registration and acceptances thereof.

The element of “transfer” divest the executant of the deed of all his right which came to be vested upon the recipient thereof may be by way of a gift which does not contain the consideration. Such right of the recipient cannot be taken without the payment of the consideration and precisely for such reason sub-Section(2) has been incorporated. The vested right can only be divested by well recognised mode of transfer. The hypothetical example can be made in this regard when ‘A’ gifted his immovable property to ‘B’ out of love and affection. B in turn wanted to sale the said property to any stranger as such deed of gift is not conditional one. He is entitled to receive the consideration although he acquired the right, title and interest by way of a gift which admittedly does not contain consideration.

In the light of the above, Section 2 should be interpreted when the court deprives a stranger to the property acquiring an interest by way of a gift and such right is being vested upon the heir specified in Class-I of the Schedule. It is anomalous when a co-sharer who gifted the property and the donee who received the property shall not be entitled to any consideration if the property by the operation of the law is directed to be given to the co-sharer or the heir is specified in Class-I of the Schedule. The proper meaning which can be assigned to sub- Section(2) of Section 22 is the moment the Court finds that an heir is entitled to a preferential right under sub-Section(1), in absence of any agreement, the consideration so determined shall pass to the stranger purchaser. Any other interpretation would render the provision otiose and redundant. The word ‘transfer’ has to be given a pragmatic meaning and not in conjunction with the consideration appearing in sub- Section(2) of Section 22 of the Act. If any restrictive meaning of the word transfer is given, it would be a premium to the heir divesting his right by way of a gift to wriggle out of mischief of the provision contained in sub-Section(1) of Section 22 of the Act.

We, thus, held that even a gift being the transfer comes within the ambit of Section 22 of the Act and the heir coming within Class-I of the Schedule is entitled to preferential right.

So far as the concluded transfer is concerned, we do not find any restriction having put under Section 22 to have its restricted applicability in case of proposed transfer if the transfer has been affected without his knowledge, still the heir can maintain the proceeding invoking the preferential right enshrined under Section 22 of the Act. We thus modifying the decree of the Trial Court to the extent that plaintiff has a preferential right in respect of Ka(1) Schedule Property.

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION
HARISH TANDON & KAUSIK CHANDA, JJ.
C.A.N 11623 OF 2017 IN F.A.T 661 OF 2017
Judgment On: 08.04.2021
Pabitra Kumar Maity Vs. Smt. Shyamali Manna & Ors

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