The right conferred by Section 22 of the Hindu Succession Act, 1956, is a right of pre-emption, and the period of limitation for such a right is determined by Article 97 of the Limitation Act, 1963.

( 1 ) THIS Rule is directed against an order passed in an appeal from the decision of the learned Subordinate Judge, rendered in Misc. Case arising out of an application under Section 22 of the Hindu Succession Act, 1956 (hereinafter referred to as the said Act ).

( 2 ) THE application under Section 22 of the said Act was made by the present petitioner on the following allegations : the disputed property originally belonged to Bhujonga Bhushon Ghosh and on his death it devolved upon his son namely, Tarak Das Ghosh, the present petitioner, his widow O. P. No. 4 and his daughters Opposite Parties Nos. 5 to 8. The said heirs of Bhujonga inherited the property in question as Class I heirs of his. Said Opposite Party No. 6 and said Opposite Party No. 4 on her own behalf and on behalf of her minor daughter Opposite Party No. 5 sold some land out of the said property for Rs. 2000/- to Opposite Party No. 3 on March 2, 1973 by Kobala (Ext. A ). The said vendors also sold on the same date some land out of the said property to Opposite Party No. 1 for Rs. 2500/- and some land out of the said property to Opposite Party No. 2 for Rs. 2500/- by Kobalas (Exts. A1 and A2) respectively. Said Opposite Parties Nos. 1 to 3 were stranger-purchasers. On these allegations the petitioner seeks to get the lands sold as aforesaid transferred to him in exercise of his preferential right under Section 22 of the said Act.

( 3 ) OPPOSITE Parties Nos. 1 to 3 in their written objections contended that the application under Section 22 of the said Act was barred by limitation and was bad for non-joinder of the necessary parties and misjoinder of cause of action. It is their further case that before the aforesaid sales on March 2, 1973 the Opposite Parties Nos. 4 to 6 proposed to sell the said land to the petitioner but he expressed his reluctance to purchase the same.

( 4 ) THE learned Subordinate Judge dismissed the said Misc. Case on the ground that the said application under Section 22 was barred by limitation.

( 5 ) ON appeal the learned Additional District Judge found that the said application under Section 22 was not barred by limitation but dismissed the appeal on the ground that no appeal would lie from the order passed by the learned Subordinate Judge.

( 6 ) MR. S. P. Roychowdhury, the learned Advocate appearing in support of the Rule contended that the Court of Appeal below was wrong in holding that appeal did not lie from the order passed by the learned Subordinate Judge under Section 22 of the said Act and that on the finding of the Court of Appeal below that the application was not barred by limitation, the application under Section 22 of the said Act should have been allowed.

( 7 ) MR. Saktinath Mukherjee, appearing on behalf of the opposite party on the other hand, argued that the learned Subordinate Judge was right in holding that the application under Section 22 of the said Act was barred by limitation and that the finding of the Court of Appeal below that no appeal lay from the judgment of the learned Subordinate Judge was also correct. According to the learned Subordinate Judge, Article 97 of the Limitation Act of 1963 was applicable to the present case while according to the Court of Appeal below it was Article 137 which applied to the present case. The learned Subordinate Judge takes the right conferred by Section 22 for a right of pre-emption while the Court of Appeal below differing from the learned Subordinate Judge takes the view that the right conferred by Section 22 was not a right of pre-emption but it was a preferential right to acquire property in certain circumstances. If the right in question were a right of pre-emption the period of limitation would be determined by Article 97 of the Limitation Act, 1963 and if the right in question be of not a right of pre-emption Article 97 would not apply and in that event residuary Article 137 would apply.

( 8 ) IT will appear from the definition of "right of p