The main legal point established in the judgment is that a gift, being a transfer, comes within the ambit of Section 22 of the Hindu Succession Act, 1956, and the heir specified in Class-I of the Schedule is entitled to a preferential right.

JUDGMENT

Harish Tandon, J. - An interesting, important and significant point is raised in the instant appeal as to whether the gift of a immovable property to a stranger to the exclusion of the other heirs of Class-I can be regarded as a transfer under Section 22 of the Hindu Succession Act, 1956.

2. Though the instant appeal is at the nebulous stage but aimed at the aforementioned legal point to which we digress from the ordinary rule of procedure applicable to get the first appeal ready for hearing and invited the respective counsels to argue on the said point so that the instant appeal can be decided on merit.

3. In order to determine the aforesaid legal point, the undisputed and controverted facts are adumbrated hereinafter. The plaintiff/appellant filed suit for declaration, permanent injunction and preferential right to acquire the property in the 2nd Court of the Civil Judge (Senior Division), Tamluk, Purba Medinipur being Title Suit no. 89 of 2015. Originally, the larger property comprised in Schedule 'Kha' belong to Subhendu Kumar Maity , Joykrishna Maity and Ajay Krishna Maity. On the death of the respective owners, the heirs and legal representatives inherited the said "Kha" Schedule Property and subsequently executed a partition deed being no. 7515 on 19.7.2002. By virtue of the said partition deed the "Kha" Schedule Property fall into the share of the Subhendu Kumar Maity and the plaintiff and defendant no. 2- 6 being heirs and legal representative of the said predecessor inherited the property described in Schedule "Ka" to the plaint.

4. Thereafter, the Defendant no. 2 transferred his 8 decimals of land situated in suit dag nos 186, 189 and 192, to Defendant no 1 and her husband which constrained the plaintiff to file a pre-emption application before the Civil Judge, (Junior Division), 2nd Court, Tamluk being Judicial Miscellaneous Case no. 10 of 2014 which was allowed on contest and the plaintiff acquired the said property upon deposit of the value thereof determined by the court. Subsequently, a deed of gift bearing no 2118 was executed and registered on 16.4.2015 by the Defendant no. 2 in favour of the Defendant no. 1 bequeathing some other properties, described in Schedule 'Ka/1' to the plaint with an intent to avoid the right of pre-emption. Thus the composite suit is filed not only for declaration of the right, title, interest and respect of the "Kha" Schedule property by virtue of an inheritance as also the pre-emption right recognised in the earlier proceeding but further asserted the preferential right under Section 22 of the said Act in respect of the properties included in "Ka/1" Schedule. The other defendants did not contest the suit except the Defendant no. 1 and 2. It is a collective stand of the Defendant no. 1 and 2 that by virtue of a deed of gift the property described in Schedule Ka/1 to the plaint was gifted by the Defendant no. 2 in favour of the Defendant no. 1 whose mother was a 'Dharmabhogini'(sister) of the Defendant no. 2 without any consideration and out of sheer love and affection.

5. The Trial Court held the nature of the transfer contemplated under Section 22 of the said Act is not applicable to the transaction of gift which is without consideration and negatived the claim of the plaintiff in this regard. To put the record straight, the Trial Court declared the right of the plaintiff in respect of "Kha" Schedule property and also passed a permanent injunction against the disturbance of possession of the plaintiff therein but refused to pass an order or a decree on preferential right.

6. All the respective counsels vociferously argued on a solitary point whether the concept of gift comes within the ambit of Section 22 of the said Act. Mr. Suman Dutt, the learned Advocate appearing for the appellant submits that the decision of the Trial Court in holding that the gift does not attract the provision of Section 22(1) of the said Act is misconceived. According to Mr. Dutt, Section 122 of t