The right of pre-emption under Section 22 of the Hindu Succession Act applies even post-transfer if co-heirs were not notified, reinforcing the protection of joint family property.

JUDGMENT :

SASHIKANTA MISHRA, J.

Both the appeals have been filed by the Plaintiffs and Defendant Nos.3 to 5 against the common judgment passed on 7.3.2024 followed by decree by learned District Judge, Balasore in R.F.A. No.90/2018 and R.F.A. No.7/2021. By such common judgment, the judgment dated 07.3.2024 followed by decree passed by learned Civil Judge (Sr. Division), Jaleswar in C.S. No.533/208 of 2010/2009 was partly confirmed.

2. For convenience, the parties are referred to as per their respective status in the trial Court.

3. The Plaintiffs filed the suit exercising their right of pre-emption to repurchase the disputed property and for permanent injunction. The property described in ‘kha’ schedule of the plaint relates to the relief claimed for right of pre-emption and the property described under ‘ga’ schedule relates to the relief of permanent injunction. The Plaintiffs’ case is that they and Defendant Nos.2 to 5 are related through their common ancestor Nrusingha Nath Das, who died leaving behind his two sons, Sambhunath and Gadadhar. The branch of Gadadhar became extinct in the absence of any heirs. The Plaintiffs and Defendant Nos.2 to 5 represent the branch of Sambhunath. ‘Ga’ schedule land is claimed to be the ancestral undivided property comprising of a joint house and homestead of the parties. There is a residential house of the plaintiffs and a temple of the family deity, Goddes Durga on one of the plots. The Plaintiffs are occupying the said house and also worshipping the deity since the time of their ancestors. The father of the Plaintiff No.1 was also possessing the ‘ga’ schedule as the only surviving member of the family. After his death, the property devolved upon his legal heirs. Further, after marriage of his daughter, Plaintiff No.1 and his deceased brother, Laxminarayan occupied the house. The property also stands recorded jointly in the M.S. R.O.R. After death of Laxminarayan, his widow Benilata Das (Plaintiff No.2) is possessing his share. Defendant Nos.2,3 and 4 executed an agreement in favour of Plaintiff No.1 for their undivided interest out of ‘ga’ schedule property on receipt of Rs.23,000/- and relinquished their share over such property. On 18.1.2009, Defendant No.1 came to the spot and attempted to cut the fence and trees from the land and tried to take forcible possession. On protest by the plaintiffs, he gave out that he had purchased a portion of ‘ga’ schedule land from Defendant No.2. On further inquiry, the plaintiffs came to know that on 20.2.2009, Defendant No.2 had executed a registered sale deed for ‘kha’ schedule and some other lands in favour of Defendant No.1 on 21.11.2009 vide R.S.D. No.2420. It is, however, alleged that said sale deed has never been acted upon in the absence of payment of consideration money and delivery of possession to the purchaser. It is also claimed that the Defendant No.2 could not have sold any property out of ‘ga’ schedule land to Defendant No.1 by executing an agreement in favour of Plaintiff No.1. Defendant No.1 being an imposter and stranger to the family of the Plaintiff and ‘kha’ schedule land being part of ‘ga’ schedule land, which is ancestral joint family property, has no right to possess any portion of the said land in view of the provisions under Section 44 of the Transfer of Property Act . It is further claimed that as per Section 22 of the Hindu Succession Act , the Plaintiffs have preferential right to purchase the share of Defendant No.2 in the event she proposed to transfer her share and interest out of joint family property. But prior to execution of the alleged sale Defendant No.2 never offered to sell the property to the Plaintiffs ignoring their preferential right. It is further stated that the Plaintiffs are ready to purchase the property at genuine market price. On such facts, the suit was filed to exercise the right of pre-emption with claim to repurchase the share of land sold by Defendant No.2 to Defendant No.1 out of the ‘ga’ schedule