Pre-emption rights under Section 22 of the Hindu Succession Act cannot be invoked by non-Class I heirs after property partition and are valid until declared otherwise by a competent court.

JUDGMENT :

A.C. Behera, J.

1. This Second Appeal has been preferred against the confirming judgment.

2. The appellants of this Second Appeal were the plaintiffs before the Trial Court in the suit vide O.S. No.10 of 1984-I and they were the appellants before the 1^st Appellate Court in the first appeal vide T.A.No.131 of 1989.

The respondents of this 2nd Appeal were the defendants before the Trial Court in the suit vide O.S. No.10 of 1984-I and they were the respondents before the 1^st Appellate Court in the 1^st appeal vide T.A. No.131 of 1989.

3. The suit of the plaintiffs (appellants in this 2^nd appeal) vide O.S. No.10 of 1984-I was a suit for declaration, pre-emption, setting aside of the sale deeds and permanent injunction in alternative, recovery of possession.

According to the plaintiffs, they (parties to the suit) are all Hindus and they are guided and governed by Mitakshara School of Hindu Law. They (plaintiffs) and the defendant No.2 are the members of one family. The suit properties are their ancestral properties. Their common ancestor was Jogendra Nayak. The said Jogendra Nayak had three sons i.e. Chaturbhuja Nayak (plaintiff No.1), Sashidhar Naik (plaintiff No.2) and Rajib Naik (husband of the defendant No.2). The husband of the defendant No.2 i.e. Rajib Naik died in the year 1950 leaving behind his widow wife i.e. defendant No.2 as his successor. Even after the death of their common ancestor Jogendra Nayak, the plaintiffs and defendant No.2 are residing in joint mess. As the suit properties are their ancestral joint and undivided properties, for which, they (plaintiffs and defendant No.2) are possessing the same jointly. Their all the ancestral joint family properties including the suit properties have been described in Schedule ‘A’ of the plaint. The properties described in Schedule ‘B’ of the plaint being the part of Schedule ‘A’ are the suit properties.

4. The defendant No.2 is an illiterate and Paradanasin widow lady. She has got absolutely no business capability or acumen. Since the death of her husband i.e. Rajib Naik, she (defendant No.2) has become very much religious in her mentality and all her wants and necessities had/have been fulfilling by the plaintiffs and accordingly, she (defendant No.2) had/has been maintaining from the income of their joint and undivided properties described in Schedule ‘A’ of the plaint. The plaintiffs are cultivating and possessing their all the joint family properties described in Schedule ‘A’. Surprisingly on dated 10.01.1984, the defendant No.1 tried to enter into the suit properties described in Schedule ‘B’. For which, the plaintiffs made an enquiry about the cause of attempt of the defendant No.1 to enter into the suit properties and came to know that, the defendant No.1 has obtained the sale deeds on dated 04.01.1984 in respect of the suit properties described in Schedule ‘B’ of the plaint from the defendant No.2 and on the strength of the said sale deeds, he (defendant No.1) is trying to enter into the suit properties and she (defendant No.2) is trying to create disturbances in the possession of the plaintiffs in the suit properties. But, when the plaintiffs vehemently resisted to the above attempt of the defendant No.1, then the defendant No.1 could not able to possess and enter into the suit properties. As the properties were succeeded by the plaintiffs after the death of the husband of the defendant No.2 and their father, for which, the sale deeds dated 04.01.1984 executed by the defendant No.2 in favour of the defendant No.1 in respect of their joint and undivided suit properties are void