The main legal point established in the judgment is that for claiming preferential right under Section 22(1) of the Hindu Succession Act, the interest of an intestate must devolve on the legal heirs and one of them must propose to transfer his or her interest in the property.

A.S. Chandurkar, J.

1. This appeal under Section 100 of the Code of Civil Procedure has been filed by the plaintiffs who are aggrieved by the judgment of the first appellate Court allowing the appeal preferred by the original defendants and dismissing the suit filed by the plaintiffs.

2. One Lahanu Idre was the common ancestor who was married with one Sitabai. From said wedlock they had three sons, Anandrao (plaintiff No. 1), Pandhari, son of Nathu their second son (plaintiff No. 2) and Gajanan-defendant No. 1. According to plaintiffs, their father was having agricultural land and house property. The ancestral property was partitioned after the death of Lahanu in the year 1957. As per said partition, field Survey Nos. 94/6 and 93/5 (new 482) went to the share of defendant no. 1. Field Survey No. 94/7 (new 485) went to the share of Nathu-the father of plaintiff no.2 and field Survey Nos. 94/3 and 93/3 (new 484) went to the share of plaintiff No. 1. The defendant no.1 sold field Survey No. 482 for consideration of Rs. 66,500/- on 27.02.1996 to the defendant no. 2. According to plaintiffs, they had preferential right to purchase said field bearing Survey No. 482. Hence, on the basis of said right of pre-emption the plaintiffs issued notice dated 03.10.1996 to the defendants. Thereafter present suit for declaration of right of pre-emption and mandatory injunction came to be filed.

3. The defendants in their written statement took the stand that the plaintiffs had no right of pre-emption to purchase aforesaid suit field. It was further pleaded that the plaintiffs were not ready and willing to purchase said property and hence they were not entitled to any relief what so ever. As the defendant no.1 was the absolute owner of the suit property, he was legally entitled to sell the same to the defendant no. 2.

4. The trial Court after considering the evidence on record held that the plaintiffs had proved that the defendant no. 1 had sold the suit property to defendant no.2 without giving any notice. It was further held that the plaintiffs had proved that they were ready and willing to purchase aforesaid property. On that basis, the trial Court decreed the suit by holding that the plaintiffs had preferential right to purchase the same and hence directed the defendant no. 2 to accept the amount of sale consideration and execute sale deed in favour of plaintiff no. 2.

5. The first appellate Court while considering the appeal filed by the original defendants held that the plaintiffs had no preferential right to purchase the suit property. It further held that the grant of relief in favour of plaintiff no.2 was totally unjustifiable. It, therefore, allowed the appeal and set aside the decree passed by the trial Court.

6. While admitting the second appeal the following substantial question of law was framed:

As to whether under the provisions of Section 22 of Hindu Succession Act, the plaintiffs were entitled to have preferential right to purchase the suit land and whether they had complied with the provisions of Section 22 of the said Act?

7. Shri C. M. Samarth, learned counsel appearing for the appellants submitted that the first appellate Court erred in allowing the appeal filed by the original defendants. He submitted that under Section 22 of the Hindu Succession Act, 1956 (for short the said Act) the plaintiffs had preferential right to purchase aforesaid property. The defendant no.1 however without making any offer and without disclosing his intention sold the same to the defendant no.2. Relying upon the decision in the case of Ganesh Chandra Pradhan Vs. Rukmani Mohanty and others AIR 1971 Orissa 65, it was submitted that the plaintiffs being co-heirs were entitled to be offered aforesaid land by the defendant no.1. Reliance was also placed on the judgment of learned Single Judge in Bharat Machindra Parekar and another Vs. Anjanabai w/o Babarao Thaware and another 2007(6) Maharashtra Law Journal 706 to submit that even if the defendant n