Kawdu Sitaram Waghmare vs Waman Sitaram Waghmare And ...
2016 Latest Caselaw 3601 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                          
              CIVIL APPELLATE JURISDICTION




                                                  
                       Second Appeal No.202 of 2014


    Kawdu Sitaram Waghmare,




                                                 
    Aged about 65 years,
    Occupation - Cultivator,
    R/o Pawnar, Tq. and Dist. Wardha.             ... Appellant/
                                                  Ori. Plaintiff




                                       
         Versus              
    1. Waman Sitaram Waghmare,
       Aged about 70 years,
                            
       Occupation - Cultivator.

    2, Shankar Suryabhan Waghmare,
       Aged 40 years,
      


       Occupation - Cultivator.
   



         Both residents of Pawnar, 
         Tq. And Dist. Wardha.                    ... Respondents/
                                                  Ori. Defendants





    Shri Kunal Nalamwar, Advocate for Appellant.
    Shri S.A. Radke, Advocate for Respondents.





        Coram : R.K. Deshpande, J.

th Dated : 5 July, 2016

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Oral Judgment :

1. Regular Civil Suit No.30 of 2004 was decreed by the Trial Court on 24-9-2009 recognizing the right of pre-emption existing in the plaintiff in respect of the property in the hands of the

defendant No.1-Waman s/o Sitaram Waghmare. Th lower Court has set aside the decision of the Trial Court in Regular Civil

Appeal No.209 of 2009 on 27-1-2014 and the suit has been dismissed. Hence, the original plaintiff is before this Court in this

second appeal.

2. The substantial question of law involved in the matter is as under :

Whether the right of pre-emption, as contemplated under Section 22 of the Hindu Succession Act, 1956, remains with the plaintiff in respect of the suit property, which had

fallen to the share of the defendant No.1 by way of family arrangement dated 2-3-1987?

3. Admit. Shri Radke, the learned counsel, waives service of notice for the respondents. By consent of the learned counsels for the parties, the appeal is heard finally.

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4. Undisputedly, one Sitaram Waghmare, the father of the

plaintiff and defendant No.1, divided the property amongst his two sons - the plaintiff and the defendant No.1 - by way of family arrangement dated 2-3-1987. Accordingly, the plaintiff

and the defendant No.1 are enjoying their separate share independently in terms of such family arrangement. The

defendant No.1 proposed to sell the property which had fallen to his share, for an amount of Rs.2,00,000/- to the defendant No.2,

and that was the stand taken in the written statement. However, subsequently, the defendant No.1 changed the stand and

expressed that he does not want to sell the said property. However, the question remains as to whether the plaintiff has got

a right of pre-emption under Section 22 of the Hindu Succession

Act to purchase the suit property in the event if the defendant proposes to sell it or transfer in favour of any third person.

5. Section 22(1) of the Hindu Succession Act runs 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

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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."

In terms of the aforesaid provision, where an interest in any immovable property of an intestate 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, th

other heirs shall have a preferential right to acquire the interest proposed to be transferred.

6. In the present case, the interest in the immovable property was divided amongst the plaintiff and the defendant No.1, the Class I heirs of the deceased Sitaram Waghmare, by way of

family arrangement dated 2-3-1987. It is not possible to agree with the proposition of law on the aforesaid provision that the right of pre-emption can be exercised only in cases where the

partition of property is incomplete, based upon the decision of Chhattisgarh High Court in the case of Ghanshyam v.

Sanghmitra Datta and Anr., reported in AIR 2011 Chhattisgarh 117, the reason being that the sale of

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property would only be after demarcation of shares and in terms

of the aforesaid provision. The fact that the partition has already

been taken place, would not take away the preferential right acquired by the other legal heirs.

7. In view of above, the lower Appellate Court has committed an error of law in holding that the plaintiff had no

preferential right to purchase the property under Section 22 of the Hindu Succession Act. The judgment and decree passed by the

Lower Appellate Court cannot, therefore, be sustained. The same will have to be quashed and set aside and the decree passed by

the Trial Court will have to be restored.

8. In the result, the appeal is allowed. The judgment and

order dated 27-1-2014 passed by the lower Appellate Court in Regular Civil Appeal No.209 of 2009, is hereby quashed and set aside. The decree dated 24-9-2009 passed by the Trial Court in

Regular Civil Suit No.30 of 2004 is restored. No order as to costs.

Judge.

Lanjewar