Case Note & Summary
The case involves a dispute over a suit property (Plot No.21, Laxmi Nagar, Nagpur) originally purchased by late Kashinath Subhedar in the name of his wife Sushilabai in 1962. Kashinath and Sushilabai had four sons: Sunil, Anil, Subhash, and Nishikant. Kashinath died in 1987 and Sushilabai in 2001, both leaving separate Wills. The plaintiffs (Sumati @ Asha, Devdatt, and Nishikant) claimed a right of pre-emption under Section 22 of the Hindu Succession Act, 1956, alleging that defendant Nos.1 to 4 (legal heirs of Sunil and Subhash) sold their shares to strangers (defendant Nos.5 and 6) without offering them to the plaintiffs. The trial court dismissed the suit and decreed the counterclaim for partition filed by defendant Nos.1 to 3. The first appeal was also dismissed. In second appeal, the High Court framed substantial questions of law regarding the applicability of Section 22, the effect of testamentary succession, and the maintainability of the partition counterclaim. The Court held that since the property devolved by testamentary succession (Wills), Section 22 does not apply. Additionally, defendant No.4 had made offers to the plaintiffs to purchase his share, which were not responded to, extinguishing any pre-emption right. The Court also upheld the partition decree, noting that a co-owner can seek partition even after selling his share. The second appeal was dismissed, confirming the trial court and first appellate court decisions.
Headnote
A) Hindu Succession Act - Right of Pre-emption - Section 22 - Applicability - The right of pre-emption under Section 22 of the Hindu Succession Act, 1956 applies only to property that devolves by intestate succession, not testamentary succession. Since the suit property devolved upon the parties through Wills executed by late Kashinath and late Sushilabai, Section 22 is not attracted. (Paras 5, 6) B) Hindu Succession Act - Class-I Heirs - Schedule - Section 8 - The Schedule under Section 8 of the Hindu Succession Act, 1956 applies to succession of a Hindu male dying intestate. It does not apply to property of a Hindu female dying intestate. For claiming pre-emption, the plaintiff and defendant must be Class-I heirs under the Schedule. (Para 5) C) Pre-emption - Conditional Right - Offer to Co-heir - The right of pre-emption under Section 22 is a conditional preferential right, not absolute. A co-heir proposing to transfer his share must offer it to other co-heirs. If the co-heir fails to respond to a valid offer, the right of pre-emption is lost. In this case, defendant No.4 made offers to plaintiffs which were not replied, extinguishing any pre-emption right. (Paras 4, 5) D) Partition - Counterclaim - Maintainability - A decree for partition can be passed in favour of a co-owner even after he has sold his undivided share to a stranger, as the purchaser steps into the shoes of the seller and the right to seek partition is a continuing right. The counterclaim for partition by defendant Nos.1 to 3 was rightly decreed. (Para 3, Issue 5)
Issue of Consideration
Whether the plaintiffs have a right of pre-emption under Section 22 of the Hindu Succession Act, 1956 when the suit property devolved by testamentary succession (Will) and not by intestate succession; whether the defendants' counterclaim for partition is maintainable despite sale of shares to strangers.
Final Decision
Second Appeal No. 547 of 2019 is dismissed. The judgment and decree of the First Appellate Court (District Judge-10, Nagpur) in Regular Civil Appeal No.409 of 2007 dated 25.06.2019, confirming the trial court decree dismissing the suit and decreeing the counterclaim for partition, are upheld.
Law Points
- Section 22 of Hindu Succession Act
- 1956 applies only to intestate succession
- not testamentary succession
- right of pre-emption is conditional and not absolute
- co-heir must be Class-I heir under Schedule
- offer to sell must be made to co-heirs before transfer to stranger
- failure to respond to offer extinguishes pre-emption right
- partition decree can be passed even after sale of undivided share by co-owner.
