The right of pre-emption under the Hindu Succession Act is contingent upon the property being that of a Hindu male who dies intestate, which was not applicable in this case.

JUDGMENT :

1. This appeal is preferred against the Judgment and decree passed by learned District Judge-10, Nagpur in Regular Civil Appeal No. 409 of 2007, dated 25.06.2019. The said first appeal was preferred against the Judgment and decree passed by learned Joint Civil Judge, Senior Division, Nagpur in Special Civil Suit No.126 of 2006 dated 02.05.2007.

2. Brief facts of the plaintiffs case are as under :

(i) The plot No.21 in Block No. Q, total area admeasuring 8000 sq.fts. (743.21 sq.mtrs.), situated at Scientific Co-operative Housing Society Limited, Nagpur which is portion out of the Khasra Nos. 4/1, 4/2, 7/2, 25, 26/1, 1-4 of Mouza Ajni City, Survey No.359, Sheet No.34 having Municipal Corporation house No.321, situated at Laxmi Nagar, Ward No.75, is the suit property.

(ii) The suit property was purchased by Late Kashinath Subhedar in the name of his wife Sushila Kashinath Subhedar by sale-deed dated 09.08.1962. A house was constructed on some part of it. The plaintiffs are residing in it. Sunil, Anil, Subhash and Nishikant are the sons of late Kashinath and late Sushilabai. They were residing jointly there. Kashinath died on 09.11.1987 and Sushilabai died on 15.12.2001. They executed their separate Wills of the suit property. Their first son Sunil died on 08.05.2003. His wife Yashodhara is defendant No.1 and her son Rutvik and daughter Gayatri are defendant Nos.2 and 3. Their second son Anil died on 22.07.2001. His wife Sumati @ Asha is plaintiff No.1 and her son Devdatt is plaintiff No.2. Their fourth son Nishikant is plaintiff No.3 and third son Subhash is defendant No.4.

(iii) It is the case of the plaintiffs that they have statutory right of pre-emption under Section 22 of the Hindu Succession Act, 1956 (for short the “Act of 1956”) to purchase share of defendant Nos.1 to 4 in the suit property. Defendant Nos.1 to 4 have statutory obligation to give offer to the plaintiffs, if they are willing to transfer by sale their share in the suit property to any stranger. The plaintiffs contended that defendant Nos.1 to 3 have executed an agreement to sale of their undivided 1/4th share collectively in the suit property with defendant Nos.5 and 6. It was registered on 04.09.2005 for total consideration of Rs.34,00,000/-. The defendant No.4 sold his undivided 1/4th share to the defendant Nos.5 and 6 by registered sale-deed dated 03.01.2006 for consideration of Rs.17,00,000/-. Though, plaintiffs gave offer to the defendants that they are ready to purchase their share in the suit property and ready to pay prevailing market value of the suit property. However, the defendants have not paid any heed to them. Therefore, the plaintiffs were constrained to file suit to exercise right of pre-emption in the suit property.

(iv) Defendant Nos.1 to 3 contended that they have offered to the plaintiff Nos.2 and 3 that they are willing to dispose of their share in the suit property. The plaintiffs have not paid any heed to them. Therefore, plaintiffs’ right of pre-emption is lost and it is not in existence. Defendant Nos.1 to 3 are not Class-I heirs of Sushilabai because late Sunil, husband of defendant No.1 and the father of defendant No.2 and 3 died on 08.05.2003 after the death of Sushilabai.

(v) The defendants’ further contented that they and plaintiffs got suit property by Testamentary Succession as per the Will executed by Late Kashinath and late Sushilabai. They got share in the suit property by testamentary succession. Therefore right of pre-emption as per Section 22 of the Act of 1956 is not accrued to the plaintiffs. They prayed to dismiss the suit. Defendant Nos.1 to 3 have filed the Counter-claim and prayed for partition of their share in the suit property.

(vi) Defendant No.4 contended that he got the 1/4th share under the Testamentary Succession as per the Will executed by Late Sushilabai, therefore, Section 22 of the Act of 1956 is not applicable to the case of plaintiffs. It is further contended that two Wills executed by Kashinath a