The right of pre-emption under Section 22(1) of the Hindu Succession Act is enforceable through a regular suit, and an incomplete partition does not extinguish the right of pre-emption.

LINGARAJA RATH, J.

( 1 ) THE remand of a suit brought by respondent 1 for enforcement of his right under S. 22 (1) of the Hindu Succession Act with prayer for permanent injunction in respect of transfer of the suit property in favour of respondent 2 or to any other person and for a mandatory injunction, against the appellant to execute a registered sale deed in respect of 'a' schedule land of the plaint at a price to be fixed by the court and for ancillary and consequential reliefs has goaded the defendant 1 appellant to prefer this appeal. Admittedly, respondent 1 and the appellant are brothers being the sons of one Giridhari. It was the case of the respondent 1 that the suit property consisting of residential house and a back courtyard was the joint family dwelling house of both parties and that after the death of their father both the parties though had amicably partitioned the property by a registered deed of partition on 20th January, 1970, yet no demarcation had been put to indicate the partition by metes and bounds. The municipal holding had also not been bifurcated and taxes and rent were being paid jointly he appellant had executed an agreement with the respondent No. 2-defendant No. 2 to sell away the property to her. The respondent No. 1 served a notice on the appellant to cause the transfer in his favour but the request having not been complied with, the suit was instituted. During the pendency of the suit, one of the sisters, impleaded as defendant No. 3, took the stand of also having a right to purchase the interest in the suit property from the appellant being herself a class-I heir of the common ancestor and further pleaded that the suit land had not been partitioned between the appellant and the respondent no. 1 and that even if there was such a partition, it was without her knowledge and she is not bound by it. The suit was contested by the appellant and respondent No. 2 jointly filing written statement on various grounds of the suit as not maintainable; that since it was the very case of respondent No. 1, that after the death of Giridhari there was a partition between the two brothers, a suit under Section 22 (1) did not lie; and that the property being the absolute property of Tara Bewa, the widow of Niladri Chhatoi brother of Giridhari, the appellant and respondent No. 1 both inherited the property as the sons of her husband's brother but not as Class-I heirs of Tara Bewa, for which Section 22 of the Hindu Succession Act had no application. The suit was dismissed by the Munsif against which two appeals were carried before the Additional District Judge, Cuttack being Title Appeal No. 76/80 at the instance of respondent 1 and Title Appeal No. 77/80 at the instance of respondent 3. Both the appeals were disposed of by a common judgement on 20-3-82 allowing the same holding that the entire homestead was held by Giridhari and Taramani as tenants in common living together and that Taramani having predeceased Giridhari who was alive in 1960, Giridhari succeeded to the property of Taramani and became the sole owner and only after the death of Giridhari, his sons, the appellant and respondent I, succeeded to the property as co-heirs. He thus negatived the case of the appellant that the property had devolved upon the appellant and respondent 1 as heirs of Taramani. It was further held by him that even though there was a partition between the appellant and respondent 1, yet the partition had not taken any notice of the mother Indumati, widow of Giridhari, as also of the two sisters Padma and defendant 3 respondent 3 and hence there was no complete partition and the property continued to be undivided and joint held as tenants in common and each of the co-heirs were entitled to a preferential right to purchase the interest of others. He thus found the claim under Section 22 of the Respondents 1 and 3 to be well founded and remanded the case to the lower court for determining the fair value of the interest of the appell