IMPORTANT POINT
In a pre-emption suit under Section 22(1) of the Hindu Succession Act, a separate prayer for setting aside the sale deed is not mandatory.

JUDGMENT :

1. This Second Appeal has been preferred by the 5th defendant in the suit, O.S.No.143/2008 on the file of the Munsiff's Court, Vatakara, who is also the 5th respondent in A.S.38/2009 on the file of the Subordinate Judge's Court, Vatakara against the judgment and decree dated 31.1.2013 allowing the appeal. For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial Court.

2. The plaintiff who is the 1st respondent in the Second Appeal filed the Suit for pre-emption for enforcing preferential right available under Section 22(1) of the Hindu Succession Act, 1956. The plaintiff is the widow and defendants 1 to 4 are the children of deceased Sankaran. The plaint schedule property originally belonged to Sankaran, and on his death, the property devolved upon the plaintiff and defendants 1 to 4. The defendants 1 to 4 assigned their 1/5 share each in the schedule property in favour of the 5th defendant as per Ext.A3 (Ext.B1) sale deed dated 2.6.2008, for a consideration of Rs.40,000/-. According to the plaintiff, by virtue of Section 22(1) of the Hindu Succession Act, she is entitled to preferential right to purchase the shares of defendants 1 to 4, she being one of the co-heirs.

3. The defendants 1, 2, 4 and 5 filed written statement opposing the plaintiff's claim. According to them, the plaintiff along with defendants 1 to 4 together decided to sell the plaint schedule property to the 5th defendant for a consideration of Rs.40,000/-during June-2008. The plaintiff was also willing to assign her 1/5 share in favour of the 5th defendant. Defendants 1 to 4 assigned their share in favour of the 5th defendant with the consent of the plaintiff. It was contended that the plaintiff agreed to assign her share in favour of defendants 1 to 4 later on. It was also contended that the plaintiff has no preferential right, as claimed.

4. The trial Court after considering the oral testimony of the plaintiff as PW1, Dws 1 to 3, Exts.A1 to A3 and Exts.B1 and B2 found that the plaintiff has preferential right to purchase the share of defendants 1 to 4. However, the plaintiff was non-suited on the ground that there was no separate prayer for declaration of the invalidity of the document in question, namely Ext.A3, or to set aside or cancel the same. However, the st Appellate Court held that in a suit for pre-emption, separate prayer for declaration is not necessary and accordingly allowed the appeal and decreed the Suit. Aggrieved by the above finding of the 1st Appellate Court, the 5th defendant preferred this second appeal.

5. At the time of admission, the following substantial questions of law were formulated :

i. Whether Ext.B1 is void or is it only voidable ?

ii. Whether the lower appellate court was justified in allowing the plea of pre-emption put forward by the plaintiff under Section 22 of the Hindu Succession Act ?

iii. In the event of allowing the claim under Section 22 of Hindu Succession Act, is not the court bound to enquire into the value of the property ?

6. Both sides were heard in detail on the above questions of law.

7. The plaintiff filed the suit claiming preferential right to purchase the shares of defendants 1 to 4 recognized under Section 22(1) of the Hindu Succession Act. In the impugned judgment, the trial court also found that the plaintiff is entitled to preferential right to purchase the shares of defendants 1 to 4, by virtue of sub-section (1) of Section 22 of the Hindu Succession Act. The trial Court denied relief of pre-emption to the plaintiff on the ground that since the defendants 1 to 4 had already assigned their share in the plaint schedule property in favour of the 5th defendant as per Ext.A3 sale deed, the plaintiff ought to have prayed for setting aside the said document. The trial court found that Ext.A3 sale deed is only a voidable document and hence, unless and until it is set aside, it will continue to be a valid document. Therefore, it was held that, in order to enf