The preferential right conferred under Sec. 22 of the Hindu Succession Act is a personal right and does not survive on the death of the Class-I heir who instituted the suit claiming the said right.

1. This appeal is preferred against the decree and judgment of the learned Additional District Judge, Kaithal dismissing the appeal filed by the present appellant against the decree and judgment of the Senior Sub-Judge, Kaithal dated 17-8-1993 on the ground that the appeal is not maintainable.

2. One Chalti Devi filed the suit for possession of the suit property claiming that she had a preferential right to purchase the suit property under Sec. 22 of the Hindu Succession Act. The said Chalti Devi had two sons namely Purshotam Dass and Mohinder Parkash Bindlish. The suit shop was owned by her two sons Mohinder Parkash Bindlish and Purshotam Dass. Mohinder Parkash Bindlish died on 17-5-1984. His half share in the suit property has been inherited by his widow, children and the mother Chalti Devi who is the plaintiff as his Class-I heirs. The widow and children of Mohinder Parkash Bindlish sold their interest in the suit property to the defendant Mohan Lal under a regd sale deed dated 21-2-1985 for a consideration of Rs. 35,000/-. Chalti Devi filed the suit on 11-2-1986 claiming that she had a preferential right to purchase the share of the widow and children of Mohinder Parkash Bindlish since she was also a Class-I heir of Mohinder Parkash Bindlish. Therefore, she claimed the suit to enforce her preferential right conferred on her under Sec. 22 of the Hindu Succession Act against the purchaser. She did not implead her widowed daughter-in-law and grand-children as parties to the suit.

3. The defendant who purchased the suit property from the widow and children of Mohinder Parkash Bindlish resisted the suit contending that an offer was made to Chalti Devi, but she did not purchase the property and, therefore, the same was sold to him and he cannot be dispossessed.

4. At this stage, it is pertinent to mention that after filing of the suit, the original plaintiff Chalti Devi died and her another son Purshotam Dass was brought on record as plaintiff in place of Chalti Devi The other legal heirs of Chalti Devi namely her grand children through the predeceased-son have not been impleaded as parties to the suit. The defendant-Madan Lal also died and his legal representatives were brought on record as defendants in his place.

5. On the basis of the pleadings, the Trial Court framed appropriate issues and on the basis of the material placed before him decreed the suit. Against the said decree and judgment, the defendant preferred an appeal. The Appellate Court held that the suit was filed under Sec. 22 of the Hindu Succession Act. Therefore, the appeal filed by the defendants-appellants is not maintainable. Hence the defendants preferred the present appeal.

6. I am unable to agree with the view taken by the learned Additional District Judge that the appeal is not maintainable. It is true that Sec. 22 confers a preferential right on Class-I heirs to purchase the interest in the immovable property proposed to be transferred. Sub-section (1) of Sec. 22 of the Hindu Succession Act confers a substantial preferential right while sub-section (2) of Sec. 22 of the Act gives a right to the parties to file an application for determination of the consideration for which any interest in the property of the deceased may be transferred. Sub-section (2) of the Sec. 22 of the Hindu Succession Act cannot be invoked for the purpose of enforcing the preferential right. If the other heir who proposes to transfer the property refused to transfer the same in favour of Class-I heir who is willing to purchase or transfer the property to the 3rd person, the Class-I heir, who wants to purchase the property has to necessarily file a suit for enforcing of right conferred on the heir under sub-section (1) of Sec. 22 of the Hindu Succession Act.

7. In this connection, it is useful to refer to the decision of the Kerala High Court in Valliyil Sreedevi Amma V/s. Subhadra Devi, AIR 1976 Kerala 19, wherein it has been held that where sub-section (1) of Sec. 22 of t