The preferential right under Section 22 of the Hindu Succession Act, 1956, is not merely a personal right, but a right that can be exercised through a guardian on behalf of a minor co-heir, and a transfer made without notifying the other class I co-heirs of the intention to transfer can be impugned after it is completed.

JUDGMENT :- An application was made before the learned Munsif at Balasore purporting to be under Section 22 of the Hindu Succession Act, 1956 (hereinafter referred to as the Act). The applicant being a minor, the application was made through his father. A short genealogy is appended below to indicate the relationship of the parties inter se.

Gangamani received the property in question under a registered deed of gift dated 1-12-55 from her father. She died in the early part of 1960 leaving behind the petitioner and opposite parties 1 and 2 to succeed to the said property. Admittedly these persons are class I heirs in respect of the estate of Gangamani Rukmani is already married. Gayamani who is not married and who has asserted in her written statement that she has already attained majority lives with Rukmani, the elder sister.

2. An application was made before the learned Munsif on 16-2-68 on the allegation that on 30-1-68 opposite parties 1 and 2 had sold away their share in the property to a stranger opposite party No. 3 in violation of the preferential right conferred on the petitioner under Section 22(1) of the Act. In that application it was stated that opposite parties 1 and 2 did not propose to sell, or offer for safe of the land in question to the petitioner and with a view to depriving him of the benefit of the land they have executed a sale deed in favour of opposite party No, 3 putting an imaginary consideration which is very much higher than what is the market value of the land. The petitioner indicated his willingness to pay such rate as may be determined by the court.

3. That application was resisted by all the three opposite parties in a joint objection. Apart from denying some of the allegations in the application it was stated that the sale in question was negotiated by Maheswar, the father of the petitioner and opposite parties Nos. 1 and 2. Since Maheswar had knowledge of the alienation the present application is mala fide and cannot be entertained. The consideration money out of the sale deed was meant to be utilised for the marriage of opposite party No. 2 when it would take place.

4. This application was registered as a Miscellaneous Proceeding by the learned Munsif. Initially there was an objection raised regarding the frame of the application and its maintainability as a miscellaneous case. But by order No. 5 dated 29-3-68 the learned Munsif held

that such an application was maintainable and proceeded to dispose of the case on merit. Two witnesses for the petitioner including father were examined, while on behalf of the opposite parties the son of the purchaser was examined. The learned Munsif dismissed the application. He gave the following reasons :-

"Undisputedly petitioner and opposite parties Nos. 1 and 2 are Class I heirs of the schedule and out of them one can claim preferential right to purchase the land while the other is proposing to sell the same. But the said right being the personal right of the heirs it is very much doubtful if the same can be enforced by the petitioner through his father who has no such right. Further the sale has been concluded and the title passed to the hands of the vendee and the transaction is now past the stage of mere proposal. There is no specific provision in the Act regarding the procedure and the manner in which the right is to be asserted and in this regard the procedure under Mohamadan Law cannot be applied here. But it appears to me that this right has got to be asserted by the petitioner himself and that before the sale was concluded. That having been done I hold that the petition is not maintainable."

5. As this proceeding in the court below was registered as a miscellaneous one and there is no clear indication in the law of procedure as to whether this order is appealable or not, a revision application under Section 115, C.P.C., has been filed in this Court. No objection has been taken regarding its maintainability either from the Stamp Reporter or on behalf of t