Gujarat High Court
Rameshbhai Zaverbhai Prajapati vs Dahiben Wd/O Shakrabhai on 7 October, 2025
NEUTRAL CITATION
C/SA/338/2025 JUDGMENT DATED: 07/10/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 338 of 2025
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2025
In R/SECOND APPEAL NO. 338 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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RAMESHBHAI ZAVERBHAI PRAJAPATI
Versus
DAHIBEN WD/O SHAKRABHAI & ORS.
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Appearance:
MR ISHAN H RAJDEV(11634) for the Appellant(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 07/10/2025
ORAL JUDGMENT
1. Heard, learned Advocate Mr. Ishan H. Rajdev appearing on behalf of the appellant.
2. The present appeal is filed under Section-100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC"), Page 1 of 22 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:08:21 IST 2025 NEUTRAL CITATION C/SA/338/2025 JUDGMENT DATED: 07/10/2025 undefined challenging the judgment and decree dated 8th April 2025, passed by the Principal District Judge, Gandhinagar in Regular Civil Appeal No.17 of 2020, whereby, it confirmed the judgment and decree dated 11th March 2020 passed by the 10th Additional Senior Civil Judge, Gandhinagar, below Exhibit-29 in Special Civil Suit No. 32 of 2018, thereby, the plaint is rejected by the Trial Court under Order VII, Rule 11 (a) and
(d) of the CPC.
3. THE SHORT FACTS OF THE CASE APPEAR TO BE THAT:
3.1. The appellant herein is the original plaintiff, whereas, the respondents herein are the original defendants of Special Civil Suit No.32/2018 filed before Principal Senior Civil Judge, Gandhinagar, in relation to a land situated at Block Survey No.144, total admeasuring 5412.5 sq.mtr. at Village : Valad, Taluka & District : Gandhinagar (herein after referred as "suit property").
3.2. The predecessor of defendant Nos.1 to 6, namely Shakrabhai, along with his brother Vishabhai, entered into one Memorandum of Understanding (MoU) dated 27th October Page 2 of 22 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:08:21 IST 2025 NEUTRAL CITATION C/SA/338/2025 JUDGMENT DATED: 07/10/2025 undefined 1978 in relation to a land situated at Block Survey No.144, total admeasuring 10,825 sq.mtr. at Village : Valad, Taluka & District : Gandhinagar, whereby, they agreed to sell the property to the father of plaintiff namely Zaverbhai as and when requested by him.
3.3. The co-owner of the said land namely Vishabhai, who happens to be the real brother of father of the predecessor of defendant Nos. 1 to 6 i.e. Shakrabhai, executed his half share in favor of the plaintiff on 18th December 1998, whereby, the plaintiff became co-owner of the aforesaid land.
3.4. It is averred in the plaint that, pursuant to the aforesaid MoU, the plaintiff requested the predecessor of defendant Nos. 1 to 6 to execute the aforesaid sale deed in his favour on 21st/22nd December 2005. It requires to be noted here that father of defendant Nos.1 to 6 happens to be maternal uncle of plaintiff.
Further, date of MoU not mentioned in plaint, albeit gave its reference in plaint.
3.5. It is clearly stated in para-(e) of the plaint that though there was readiness and willingness on the part of the plaintiff to get the sale deed executed in his favor qua the suit property, for Page 3 of 22 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:08:21 IST 2025 NEUTRAL CITATION C/SA/338/2025 JUDGMENT DATED: 07/10/2025 undefined any reason, the predecessor of defendant Nos. 1 to 6 namely Shakrabhai, did not execute the registered sale deed, which was in fact prepared on 21st/22nd December 2005.
3.6. The defendant Nos. 1 to 6 appear to have executed registered sale deed of the suit property in favor of defendant Nos. 7 and 8 on dated 6th November 2017. Having came to know about such execution of sale deed, suit in question came to be filed.
The plaintiff asserted his right on the basis of pre-emption, placing reliance upon Section-22 of the Hindu Succession Act, 1956 (hereinafter referred to as "Act, 1956").
3.7. The plaintiff sought declaration that the plaintiff has a right of pre-emption and on this basis, sought the cancellation of the sale deed executed by defendant Nos.1 to 6 in favor of defendant Nos.7 and 8. A further declaration was also sought in the plaint as regards the execution of sale deed by defendant Nos.1 to 6 in favor of the plaintiff on deposit of the amount i.e. purchase value of the suit property received by them from defendant Nos. 7 and 8.
3.8. The defendant Nos.7 and 8 being subsequent purchasers, appeared in the suit and filed impugned application below Page 4 of 22 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:08:21 IST 2025 NEUTRAL CITATION C/SA/338/2025 JUDGMENT DATED: 07/10/2025 undefined Exhibit 29 under Order VII, Rule 11 (a) and (d) of CPC.
According to the case of the defendants, the suit is time-barred, inasmuch as the cause of action to file such suit to get the sale deed executed in favor of plaintiff by defendant Nos.1 to 6 or from their predecessor accrued in the year 2005 and so also, there is no right of pre-emption available to plaintiff. It is also stated that there is no cause of action to file such suit seeking cancellation of the sale deed executed by defendant Nos.1 to 6 in favor of defendant Nos.7 and 8.
3.9. After hearing the parties, the Trial Court allowed the impugned application, whereby, rejected the plaint. Accordingly, Regular Civil Appeal No.17 of 2020 came to be filed by the original plaintiff before the Appellate Court, which also met with the same fate. Hence, the present appeal.
4. SUBMISSIONS OF THE APPELLANT-PLAINTIFF:
4.1. Learned Advocate Mr. Rajdev would respectfully submit that both the courts below have concurrently erred in arriving at a conclusion that the suit filed by the plaintiff is time-barred. It is respectfully submitted that the execution of the sale deed dated 6th November 2017 by defendant Nos.1 to 6 in favor of Page 5 of 22 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:08:21 IST 2025 NEUTRAL CITATION C/SA/338/2025 JUDGMENT DATED: 07/10/2025 undefined defendant Nos.7 and 8 and the suit came to be filed on 16th February 2018, thereby, the suit was not barred by the law of limitation.
4.2. Learned Advocate Mr. Rajdev would submit that as per the MoU executed between the predecessor of plaintiff and defendant Nos.1 to 6, as and when the predecessor or as the case may be plaintiff called upon him to execute the sale in his favor, the predecessor of defendant Nos.1 to 6 was supposed to execute the sale deed. It is submitted that when the terms of such MoU were breached by defendant Nos.1 to 6, having executed sale deed in favor of the third party, right accrued in favor of the plaintiff to file suit seeking cancellation of such sale deed, as well as seeking declaration to the effect that as per the right of pre-emption, the plaintiff has right to get the sale deed executed in his favor.
4.3. Learned Advocate Mr. Rajdev would submit that the issue of limitation is always considered to be a mixed question of law and fact and could not have been gone into by the Trial Court while adjudicating the impugned application.
4.4. Learned Advocate Mr. Rajdev would further submit that the Page 6 of 22 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:08:21 IST 2025 NEUTRAL CITATION C/SA/338/2025 JUDGMENT DATED: 07/10/2025 undefined Appellate Court has erroneously considered the scope and ambit of Section-22 of the Act 1956, thereby, committed serious error of law, which requires to be corrected by this Court while exercising its appellate jurisdiction.
4.5. Making the above submissions, learned Advocate Mr. Rajdev would request this Court to allow the present appeal.
5. No other and further submissions are made.
6. The present second appeal is filed by the original plaintiff against the concurrent finding of facts recorded by the Trial Court, as well as the Appellate Court, having allowed the impugned application filed under Order VII, Rule 11 (a) and
(d) of the CPC by defendant Nos.7 and 8 and so also dismissing the Regular Civil Appeal filed by the plaintiff against such rejection of the plaint. As such, when there is a concurrent finding and observations made against the appellant herein neither erroneous nor perverse, this Court would not like to re-appreciate the facts and evidence on record while exercising its appellate power under Section-100 of the CPC. The appellate power of this Court while adjudicating a second appeal filed under section-100 of CPC is very limited Page 7 of 22 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:08:21 IST 2025 NEUTRAL CITATION C/SA/338/2025 JUDGMENT DATED: 07/10/2025 undefined inasmuch as only in a case where any substantial question of law arise in the second appeal, otherwise this Court should not entertain such appeal.
7. At this stage, it is profitable to rely upon the Constitution Bench decision of the Hon'ble Supreme Court of India on such an issue in the case of Sir Chunilal V. Mehta And Sons Limited Versus Century Spinning And Manufacturing Company Limited, reported in 1962 SCC; 1962 (0) AIJEL-SC 5258 , wherein, para-
3 and para-6, it has been held that:-
"3. The next question is whether the interpretation of a document of the kind referred to above raises a substantial question of law. For, Art. 133(1) provides that where the judgment, decree or final order appealed, from affirms the decision of the court immediately below in any case other than a case referred to in sub-cl. (c) an appeal shall be to this Court if the High Court certifies that the appeal involves some substantial question of law. To the same effect are the provisions of sec. 110 of the Code of Civil Procedure. In the old Judicial Commissioner's Court of Oudh the view was taken that a substantial question of law meant a question of general importance. Following that view its successor, the Chief Page 8 of 22 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:08:21 IST 2025 NEUTRAL CITATION C/SA/338/2025 JUDGMENT DATED: 07/10/2025 undefined Court of oudh, refused to grant a certificate to one Raghunath Prasad Singh whose appeal it had dismissed. The appellant, therefore, moved the Privy Council for special leave on the ground that the appeal raised a substantial question of law. The Privy Council granted special leave to the appellant and while granting it made the following observation in their judgment:
"Admittedly here the decision of the Court affirmed the decision of the Court immediately below and, therefore, the whole question turns upon whether there is a substantial question of law. There seems to have been some doubt, at any rate in the old court of Oudh, to which the present court succeeded as to whether a substantial question of law meant a question of general importance. Their Lordships think it is quite clear-and indeed it was conceded by Mr. De Gruyther-that that is not the meaning but that "substantial question of law" is substantial question of law as between the parties in the case involved."
Then their Lordships observed that as the case had occupied the High Court for a very long time and on which a very elaborate Judgement was delivered the appeal on its face raised as between the parties a substantial question of law. This case is reported in 54 Ind App 126 :
Page 9 of 22 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:08:21 IST 2025NEUTRAL CITATION C/SA/338/2025 JUDGMENT DATED: 07/10/2025 undefined AIR 1927 PC 110. What is a substantial question of law as between the parties would certainly depend upon the facts and circumstances of every case. Thus, for instance, if a question of law had been settled by the highest court of the country the question of law however important or difficult it may have been regarded in the past and however much it may affect any of the parties would cease to be a substantial question of law. Nor, again, would a question of law which is palpably absurd be a substantial question of law as between the parties. The Bombay High Court, however, in their earlier decision already adverted to have not properly appreciated the test laid down by the Privy Council for ascertaining what is a substantial question of law. Apparently the Judgement of the Privy Council was brought to their notice for, though they do not make a direct reference to it, they have observed as follows :
"The only guidance that we have had from the Privy Council is that substantial question is not necessarily a question which is of public importance. It must be a substantial question of law as between the parties in the case involved. But here again it must not be forgotten that what is contemplated, is not a question of law alone; it must be a substantial question. One can define it negatively. For Page 10 of 22 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:08:21 IST 2025 NEUTRAL CITATION C/SA/338/2025 JUDGMENT DATED: 07/10/2025 undefined instance, if there is a well established principle of law and that principle is applied to a given set of facts, that would certainly not be a substantial question of law. Where the question of law is not well settled or where there is some doubt as to the principle of law involved, it certainly would raise a substantial question of law which would require a final adjudication by the highest Court."
One of the points which the learned judges of the Bombay High Court had to consider in this case was whether the question of the construction to be placed upon a decree was a substantial question of law. The learned Judges said in their Judgement that the decree was undoubtedly of a complicated character but even so they refused to grant a certificate u/s. 110 of the Code of Civil Procedure for appeal to the Federal Court because the construction which the Court was called upon to place on the decree did not raise a substantial question of law. They have observed that even though a decree may be of a complicated character what the Court has to do is to look at its various provisions and draw its inference therefrom. Thus according to the learned Judges merely because the inference to be drawn is from a complicated decree no substantial question of law would arise. Apparently in coming to this conclusion they omitted to attach sufficient Page 11 of 22 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:08:21 IST 2025 NEUTRAL CITATION C/SA/338/2025 JUDGMENT DATED: 07/10/2025 undefined weight to the view of the Privy Council that a question of law is "a substantial question of law" when it affects the rights of the parties to the proceeding. Further the learned Judges seem to have taken the view that there should be a doubt in the mind of the Court as to the principle of law involved and unless there is such doubt in its mind the question of law decided by it cannot be said to be "a substantial question of law" so as to entitle a party to a certificate under S. 110 of the Code of Civil Procedure. It is true that they have not said in so many words that such a doubt must be entertained by the Court itself but that is what we understand their Judgement to mean and in particular the last sentence in the portion of their Judgement which we have quoted above.
6. We are in general agreement with the view taken by the Madras High Court and we think that while the view taken by the Bombay High Court is rather narrow the one taken by the former High Court of Nagpur is too wide. The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and, substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally, settled by Page 12 of 22 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:08:21 IST 2025 NEUTRAL CITATION C/SA/338/2025 JUDGMENT DATED: 07/10/2025 undefined this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest Court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
(emphasis supplied)
8. Keeping in mind the ratio of the above referred decision, I would like to appreciate the submissions of learned advocate Mr. Rajdev. The facts which are observed hereinabove are not in dispute. The case of the plaintiff as averred in the plaint, if taken on its face value, would clearly suggest that pursuant to the aforesaid MoU referred hereinabove, executed between the predecessor of plaintiff and the defendant Nos.1 to 6 in the year 1978, on calling upon the predecessor of defendant Nos. 1 to 6 by the plaintiff, he could have obtained registered sale deed from him qua his share i.e. Suit property. The plaint disclosed the fact that the co-owner of the land in question namely Vishabhai, who happens to be the brother of the predecessor of defendant Nos.1 to 6, already executed sale deed by selling his Page 13 of 22 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:08:21 IST 2025 NEUTRAL CITATION C/SA/338/2025 JUDGMENT DATED: 07/10/2025 undefined share in favor of the plaintiff in the year 1998.
9. Further, it is specifically averred in para-(e) of the plaint that plaintiff called upon the predecessor of defendant Nos.1 to 6 in the year 2005 to execute his share i.e. sell of the suit property by execution of registered sale deed. As per plaint, all procedural formalities, including the purchase of the stamp and other writing, were prepared by the plaintiff. Nonetheless, for any reason, there would not be any execution of registered sale deed by the predecessor of defendant Nos.1 to 6 in favor of the plaintiff. This fact is disclosed in the plaint itself.
10. If such would be the case, as per Article 58 or Article 54 as the case may be of the Limitation Act, 1963, a cause of action accrued in favor of the plaintiff to file suit seeking declaration in the year 2005 itself, thereby, he could have filed suit within three years from such refusal of execution of sale deed by the predecessor of defendant Nos. 1 to 6 in favor of the plaintiff.
11. Undisputedly, the suit in question came to be filed only in the year 2018. So, in light of the aforesaid peculiar facts and circumstances of the present case, the Trial Court has correctly observed in its impugned order that the suit is barred by the Page 14 of 22 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:08:21 IST 2025 NEUTRAL CITATION C/SA/338/2025 JUDGMENT DATED: 07/10/2025 undefined law of limitation. As such, one cannot find any error, much less any jurisdictional error, either in the order passed by the Trial Court or by the Appellate Court while dismissing the appeal.
12. The other facet of the case would be a claim of the plaintiff on the basis of pre-emption. The plaintiff has placed reliance upon Section-22 of the Act 1956 and claimed his right to get the execution of the sale deed by defendant Nos.1 to 6 qua suit property on this basis.
13. Such a right is available only to Class-I legal heirs of a Hindu and it is not inheritable right. To better understand, I would like to refer to Section-22 of the Act 1956, which 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 Page 15 of 22 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:08:21 IST 2025 NEUTRAL CITATION C/SA/338/2025 JUDGMENT DATED: 07/10/2025 undefined 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."
14. It is not the case of the plaintiff that he would fall within the Class-I legal heir of the predecessor of defendant Nos.1 to 6 i.e. Shakrabhai. Prima facie, in view of the aforesaid, the right of pre-emption as claimed by the plaintiff would not be available to him. Even aforesaid MoU executed between predecessor of plaintiff and defendant No.1 to 6 then also, no right survived in favour of plaintiff to claim pre-emption on basis of such MoU as right of pre-emption is not inheritable right. As such, the Appellate Court correctly observed that no benefit of Section-
22 of the Act 1956 would available to plaintiff.
15. It would be apt to observe that this Court had an occasion to Page 16 of 22 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:08:21 IST 2025 NEUTRAL CITATION C/SA/338/2025 JUDGMENT DATED: 07/10/2025 undefined decide such issue germane in this appeal, wherein, after considering the decision of the Honorable Apex Court and other High Courts, it reaches to the conclusion that right of pre-emption is not inheritable right. The relevant observation of the decision of this Court in the case of Yogeshbhai Bachubhai Solanki V/s. Partners of Aditya Infra Partnership Firm, Junagadh & Ors. reported in 2025 (3) GLR 1866: 2025 SCC OnLine Guj 762: 2025 LawSuit(Guj) 203, reads as under:
"16. Now to appreciate the real controversy so germane in the matter, it is apt to refer to and rely upon the ratio of decision of Hon'ble Supreme Court of India in the case of Sham Sundar and Ors. V/s. Ramkumar and Ors. reported in (2001) 8 SCC 24, wherein in para 10, it has held as under:-
"[10] An analysis of the aforesaid decisions referred to in first category of decisions, the legal principles that emerge are these:
1. The pre-emptor must have the right to pre-empt on the date of sale, on the date of filing of the suit and on the date of passing of the decree by the Court of the first instance only.
2. The pre-emptor who claims the right to pre-empt the sale on the date of the sale must prove that such right continued to subsist till the passing of the decree of the first Court. If the claimant loses that right or a vendee improves his right equal or above the right of the claimant before the adjudication of suit the suit for pre-emption must fail.
3. A pre-emptor who has a right to preempt a sale on the date of institution of the suit and on the date of passing of decree, the loss of such right subsequent to the decree of Page 17 of 22 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:08:21 IST 2025 NEUTRAL CITATION C/SA/338/2025 JUDGMENT DATED: 07/10/2025 undefined the first Court would not affect his right or maintainability of the suit for pre-emption.
4. A pre-emptor who after proving his right on the date of sale, on the date of filing the suit and on the date of passing of the decree by the first Court, has obtained a decree for pre-emption by the Court of first instance, such right cannot be taken away by subsequent legislation during pendency of the appeal filed against the decree unless such legislation has retrospective operation."
(emphasis supplied)
21. As per the plain reading of section 22 of the Hindu Succession Act, it would apply to Class -I legal heirs of deceased. Admittedly, the plaintiff and defendant nos.1 and 2 are not fall within Class-I heir of said Gokulbhai Kalabhai, then considering the aforesaid provision, plaintiff would not entitle to claim any pre-emptory right over the suit property, which admittedly owned by his uncle and succeeded in favour of his Class-I legal hears i.e., defendant Nos.1 and 2. Thus, ratio of decision in the case of Babu Ram (supra) would not apply to the facts of the case.
23. The plaintiff is claiming right of pre- emption as per the aforesaid consent decree dated 08.09.1951 drawn in favour of his father along with other brothers of his father. The trial court has believed that such right of pre-emption as available to father of plaintiff is inherited by plaintiff, even though, two brothers of plaintiff who are joined as defendant no.4 (4/1 and 4/2) as well as Page 18 of 22 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:08:21 IST 2025 NEUTRAL CITATION C/SA/338/2025 JUDGMENT DATED: 07/10/2025 undefined defendant No.5, have not claimed it. Such an approach on the part of the trial court is erroneous as prima facie, right of pre-emption would not be an inheritable right in favour of successor in interest of deceased.
24. It is apt and also profitable to rely upon the observations made by Punjab and Haryana High Court in the case of Kamal Goel vs. Purshotam Dass (Deceased by Lrs) reported in AIR 1999 P&H 258; 1999 LawSuit (P&H) 1979, wherein held as under:- Para 11 to 13 and 14.
"[11] From a reading of above Section, it is clear that it confers a right on Class-I heir only to seek the transfer of property in his or her name when the other co-heir proposes to sell the property. This Section is also applicable to the interest already transferred, but the intention of enacting the Section is to see that the property will remain in the hands of co-heirs only and to prevent the] strangers from acquiring any interest of the coheir. Further it is clear that the provisions of this Section are confined only to Class-I heirs specified in the Schedule. It is only a personal right given to one or other of the co-heirs. That right is neither transferable nor inheritable. In such cases, the common law maxim actio personalis moritur-cum persona (a personal right of action dies with the person).
[12] Admittedly, Chalti Devi died during the pendency of the suit. Therefore, the right to have the property transferred in her name and to get the sale deed executed by the defendants in favour of the appellant set aside also ceased to exist. Her other son namely the 1st respondent cannot have any right to continue the suit since he has no right and the right of his mother Chalti Devi cannot be inherited by him. It is further to be noticed that all other Class-I heirs except Chalti Devi sold their share of the property to the appellant. When Chalti Devi died before a decree was passed in her favour, the right to continue the suit will not survive. Since the right conferred under Section 22 of the Succession Act is a Page 19 of 22 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:08:21 IST 2025 NEUTRAL CITATION C/SA/338/2025 JUDGMENT DATED: 07/10/2025 undefined personal one, it is extinguished by the death of Chalti Devi. Therefore, the suit filed by her stands abated as she died before the adjudication of her right.
[13] The learned Counsel for the appellant and respondents are not able to draw my attention to any reported decision on the question whether the right conferred Under Section 22 of the Hindu Succession Act survives on the death of Class-I heir instituted the suit claiming the said right, but I am able to lay my hands on an analogous principle in Mohummudan Law. The right of pre-emption was available to a Sunni of Hanifi Sect. That right was known as Shaffa. It signifies the becoming of proprietor of lands sold for the price at which the purchaser has purchased them. A person claiming the right of a sort of pre-emption is called Shafee. The right of Shaffa (the right of like pre-exmption) is available to a co- sharer in the property of the land sold. Under the Muslim Law if the Shafee i.e. the person claiming the right of pre- exmption dies, his right of Shaffa becomes extinct. It is an express condition of Shaffa that a man be firmly possessed of the property from which he derives his right of Shaffa at the time when the subject of it is sold, a condition which does not hold on the part of the heirs. It is moreover a condition that the property of the Shafee remains firm until the decree of the Kazee be passed as this does not hold on the part of the deceased shafee, the shaffa is not established in respect to any of his descendants because of the failure of its conditions. Relying on the passages of Baillie's Mohummudan Law in Hamilton's Hadaya by Grady, 2nd. Edition page 560 and Baillie's Mohummudan Law, 2nd Edition at page 505, Tagore Law Lecturers 1873 (Shama Charan Sarear) page 534, Tagore Law Lecturers 1884 (Ammer Ali) 2nd. Edition, Vol. I, page 603, a Division Bench of the Allahabad High Court in Muhammad Hussain v. Niamat-Un-Nissa, (1898) ILR 20 All 88 held as follows:--
The short point which we have to decide is ........ did the right of pre-emption determine upon the death of Muhammad Hasan? All the authorities of which we are aware show that it did; that the right of pre- emption is gone when the pre-emptor is a Sunni of the Hanifi sect and has not obtained his decree during his lifetime and that the right to sue docs not survive to his heirs."
(emphasis supplied)
25. Thus, in view of the aforesaid, prima Page 20 of 22 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:08:21 IST 2025 NEUTRAL CITATION C/SA/338/2025 JUDGMENT DATED: 07/10/2025 undefined facie, plaintiff could not have claimed right of pre-emption so available to his father, which would not survived in favour of plaintiff after death of his father. The Trial Court has not considered such vital aspect of the case thereby erroneously held in favour of the plaintiff that he has inherited right of pre- emption from his father.
26. As per the decision of Hon'ble Apex Court in the case of Sham Sundar (Supra), the right of pre-emptor should survive not only on the date of sale, but it should also requires to be survived on the date of filing of the suit and further requires to subsist till passing of the decree by the court of first instance. The pre- emptor who claims the right to pre-empt on the date of sale must prove that such right continued to subsist till passing of the decree of the first court. If he fails to do so, suit for pre-emption must fail.' (emphasis supplied)
16. Thus, in view of said position of law stand as on date and so also in light of the aforesaid facts and circumstances of the case, I am of the view that neither the Trial Court nor the Appellate Court has committed any error of law much less jurisdictional error, which requires to be any interference by this Court in the present appeal. As such I am in complete Page 21 of 22 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:08:21 IST 2025 NEUTRAL CITATION C/SA/338/2025 JUDGMENT DATED: 07/10/2025 undefined agreement with a view taken by the Courts below. Accordingly, I am also of the view that plaint neither disclosed any cause of action nor filed within period of limitation, thus, correctly rejected by the trial Court as per provision of Order VII rule 11
(a) & (d) of CPC, which confirmed by the Appellate Court.
17. Thus, having so discussed aforesaid and due to foregoing reasons, no substantial question of law made out by appellant-
plaintiff in this second appeal. I am of the view of that so called substantial question of law framed in the appeal would not be considered as substantial question of law.
18. In view of the aforesaid conclusion, the present Second Appeal bereft of any merit, requires to be rejected, which is hereby rejected. No order as to costs.
19. As a sequel, Civil application is also disposed of accordingly.
(MAULIK J.SHELAT,J) NILESH Page 22 of 22 Uploaded by MR. NILESHKUMAR RAMESHBHAI PARMAR(HCD0068) on Fri Oct 10 2025 Downloaded on : Sat Oct 11 10:08:21 IST 2025