The provisions of Section 22 of the Hindu Succession Act, 1956, are applicable to a completed transfer and a regular suit for pre-emption is not necessary in such cases.

P. K. MISRA, J.

( 1 ) DEFENDANT No. 1 is the appellant against a confirming decision. Plaintiff-respondent No. 1 filed O. S. No. 182 of 1979 for declaration that the transfer of the disputed property is void and in the alternative, to allow the plaintiff to re-purchase the disputed land.

( 2 ) PLAINTIFF is the son of one Bhikari Ghadei. Defendant No. 1 is the alienee from Gurbari, widow of Bhikari Ghadei and defendants 2 and 3 are the daughters. It is claimed that the disputed land is the ancestral property of Bhikari Ghadei who expired in the year 1971. Thereafter, on 18-7-1974 plaintiff's mother Gurubari alienated the disputed property for Rs. 100/- in favour of defendant No. 1 by executing a sale deed for herself as well as on behalf of her minor son, the plaintiff. On receipt of notice in Mutation Case No. 5012/76, the plaintiff came to know about the illegal allegation by his mother and thereafter filed that suit on 14-12-1979 claiming that he is not bound by the sale deed (Ext. A ). It was further claimed that the sale deed was also not binding in respect of his mother's share and alternatively, it was prayed that the disputed property which was homestead land should be re-conveyed in favour of the plaintiff on refund of consideration.

( 3 ) DEFENDANT No. 1 in her written statement pleaded that Ext. A, the sale deed, had been duly executed for legal necessity and the plaintiff as well as defandants 2 and 3 are bound by the same.

( 4 ) THE trial Court decreed the suit on a finding that due execution of Ext. A had not been proved and no consideration had passed under Ext. A and as such the document was void. It was also found that the prayer for re-purchasing the property was not maintainable in the absence of a prayer for partition of the entire disputed land.

( 5 ) IN Appeal by defendant No. 1 the lower appellate Court held that Ext. A, the sale deed, was voidable in view of the provisions contained in Section 8 (2) of the Hindu Minority and Guardianship Act, 1956, inasmuch as no permission had been obtained by the mother-guardian for alienating the property of the minor. It further found that the documant had been duly executed and consideration had been paid and there was legal necessity for the sale and as such the sale deed was valid so far as it related to half share of plaintiff's mother in the disputed property. However, applying the provisions contained in Section 22 of the Hindu Succession Act, 1956, the lower appellate Court directed that the plaintiff was entitled to re-purchase the suit land on payment of Rs. 100/- which was the consideration amount. The aforesaid decision of the lower appellate Court is under challenge at the instance of defendant No. 1.

( 6 ) IN this appeal, it is contended that the trial Court having refused the prayer of the plaintiff for re-purchase of the land, and in the absence of any independent appeal or cross-objection by the plaintiff against the said direction, the lower appellate Court could not have passed a decree for re-purchase of half share representing the interest of plaintiff's mother. It is further submitted that the appellate Court's finding that Ext. A was valid and binding in respect of the half interest of plaintiff's mother having not been challenged, is binding and since the relief for re-purchase under Section 22 of the Hindu Succession Act had not been claimed and could not have been granted, defendant No. 1's right in respect of the disputed property should be upheld. In this connection it is also submitted that Section 22 of the Hindu Succession Act does not apply to completed transfer and, at any rate in the absence of a separate suit to enforce the right of pre-emption, such relief could not have been granted by the lower appellate Court.

( 7 ) THE finding of the lower appellate Court that there was due execution of Ext. A and the mother had sold the property for herself as well as on behalf of the minor for legal necessity, is apparently a finding of