Advocates:
Advocate Appeared:
For the Appellant : Mr. Shrikant Kulkarni
For the Respondent:Nahush Sham Selukar Advocate, Mr. S.S. Kazi

Key Points from the Judgment

• Case Details: Second Appeal No. 1705 of 2005 with Civil Application No. 5021 of 2008 and Second Appeal No. 109 of 2014, decided on 17-10-2025 by the High Court of Judicature at Bombay (Aurangabad Bench). (!) (!)

• Parties: Appellant: Tukaram S/o Rekha (Rekhu) Rathod; Respondent: Sham Balkrishanrao Selukar. Plaintiffs (respondents 1-3) are sons of Balkrushna; defendants 6-7 are uncles; defendants 8-9 are step-brothers; defendants 1-5 are purchasers. (!) [3][4][5]

• Subject Matter: Dispute over right of pre-emption under Section 22 of the Hindu Succession Act regarding undivided joint family properties (land gut Nos. 488, 490, 595) alienated via four sale deeds by defendants 6-9 to defendants 1-5. [4][6][7]

• Substantial Questions of Law:

• Whether pre-emption right is exercisable when defendants 6-7 are not Class I heirs of Balkrushna. (!)
• Whether property owned by defendants 6-7 is liable to transfer to plaintiffs under Section 22 HSA. (!)
• Whether plaintiffs can get title without setting aside sale deeds. (!)
• Error in extending time for deposit under Order XX Rule 14 CPC. (!) (!)

• Entitlement of defendants 1-4 to Section 44 TPA protection. (!)

• Trial Court Decree (30.03.1992): Declared sales void due to fraud, granted pre-emption right on deposit of sale consideration within 90 days (by 30.12.1992), restrained purchasers from disturbing possession. Suit proceeded ex-parte against some defendants. [9][11]

• Lower Appellate Court (30.07.2005): Confirmed decree with modifications; no fraud found; 90 days for deposit; concurrent findings on joint family property, possession, and pre-emption right. [11][12][13] (!) (!) (!) (!) (!) (!) (!)

• Family and Property Status: Undivided joint family of Keshav (propositus); no partition; ancestral properties; plaintiffs (sons of predeceased son Balkrushna) and defendants 6-9 in joint possession, confirmed by prior suit (RCS 908/1987). [4][17][18][19][20] (!)

• Class I Heir Status and Pre-emption Right: Plaintiffs qualify as Class I heirs (sons of predeceased son) under Section 22 HSA vis-a-vis Keshav; preferential right to acquire undivided shares proposed for transfer; activates on timely deposit of consideration. (!) [21][22][23][24][25] (!) (!) (!) (!) (!) (!) (!) (!) (!)

• No Estoppel or Waiver: No evidence plaintiffs were offered purchase opportunity pre-sale or refused; knowledge alone insufficient. [29] (!)

• Deposit Timeline (Order XX Rule 14 CPC): 90 days fixed by trial court; stay during appeals suspended obligation; appellate court did not extend time, merely reset post-stay; non-payment leads to suit dismissal. [30][31] (!) (!) (!) (!) (!) (!)

• No Section 44 TPA Protection: Purchasers of undivided shares must sue for partition; no such suit filed; strangers cannot claim against joint possession. [15][16][33] (!) (!)

• No Need to Set Aside Sale Deeds: Pre-emption decree transfers title on deposit; possession already with plaintiffs; declaration unnecessary for undivided property. [7][34][35] (!) (!)

• Fraud and Consideration: No fraud established; sale consideration reasonable, upheld. [13][36] (!)

• Outcome: Both second appeals dismissed; decree confirmed with modification (deposit purchase price + 6% interest from 31.12.1992 within 90 days from judgment date). [36][37][38] (!) (!)

• Ratio: Class I heirs in joint possession of undivided family property have enforceable pre-emption right under Section 22 HSA on timely deposit; no separate declaration to void sales needed. [summary paras 30,36,24,21,14,25,28,34,35]