The main legal point established in the judgment is that the right of preemption is not applicable when the conditions mentioned in the Will are not binding and the sale-deed is not null and void under the Hindu Succession Act, 1956 and the Indian Succession Act, 1925.

JUDGMENT : – The appellant has filed the present appeal challenging the judgment and decree dated 27-8-2001 passed by ASJ, Bioara in Civil Suit No. 55-A/1997 whereby dismissing the suit filed by the appellant.

2. Facts in brief are that the appellant/plaintiff filed a suit for declaration of sale-deed dated 1-5-1995 executed by the respondent No. 1 in favour of the respondents No. 2 and 3 as null and void and not binding upon him as well as for executing a sale-deed in his favour for Rs. 1,65,000/- and for getting vacant possession of part of the property illegally sold by the respondent No. 1 in favour of the respondents No. 2 and 3. The suit was filed on the allegations that house in dispute situated at Sardar Bazar, Bioara, Ward No. 7 (New No. 9) belonged to late Shri Balabax S/o Mangilal Mishra, who on 16-3-1972, executed a Will and divided the said property in four parts, out of which plaintiff got ¼th part and the respondent No. 1/Damodar got ¼th part in the suit property. It has been alleged in the plaint that in the Will executed by Late Shri Balabax, there is a condition No. 13 (1 to 3) mentioned in the Will that the house is being partitioned in four parts and in case of sale, mortgage by any of them, the same would be transferred only to each other and only the beneficiaries shown in the Will i.e. Damodar, Kailashchandra would be entitled to purchase the property.

3. It has also been mentioned in the Will that in case any of the beneficiaries are not in a position to purchase the property, then, it may be sold to other beneficiary (Bhagidar) and in case of sale of property to an outside person. The consent of all the beneficiary (Bhagidar) is compulsory. It is also contended that Balabax expired on 22-4-1977 and after his death all the beneficiaries occupied the premises given in the Will and their names have also been mutated. It is further alleged that Shyamkumar, Vinodkumar, Subhash and Dinesh wanted to sale their property and they asked respondent No. 1 to purchase the property and he deceived to purchase the same, as such the offer was given to the plaintiff, who purchased the property by registered sale-deed dated 1-2-1994 and became owner of the portion owned by them.

4. It is further alleged in the plaint that the defendant No. 3/Babulal was occupying ground floor of the suit house as tenant and running a Kirana Shop in the said premises and an ejectment Suit No. 121-A/1987 was filed against him by respondent No. 1 before the Civil Judge, Class-I, Bioara and in the said suit, Will executed by Late Shri Balabax was also placed on record and he was full aware of the conditions mentioned in the Will. In spite of the aforesaid fact, the respondent No. 1 on 1-5-1995 sold the disputed property to the respondent No. 2 contrary to the terms of the Will and without asking the plaintiff as to whether he is ready to purchase the property or not, and also without taking consent of all the co-owners of the property for Rs. 1,50,000/-.

5. It has also been alleged that the plaintiff was ever ready and willing to purchase the property and is even today ready to purchase the property by paying 10% more, and that the respondents No. 1 and 2 have acted contrary to the terms and conditions mentioned in the Will. It has further been alleged that the respondents have illegally got the sale-deed executed at Rajgarh though the Sub Registrar was available at Bioara. It has also been alleged that the respondent No. 1 contrary to the Will has sold some area to the respondent No. 2.

6. Thus, the plaintiff claimed vacant possession of this part of the property and also claimed that as per Will and the Hindu Succession Act, he had a right to preemption and the same was binding upon the respondent No. 1, who has violated the mandatory conditions mentioned in the Will, and though the respondents No. 2 and 3 had full knowledge of these conditions, they have purchased the property in dispute, and thus, the sale-deed be declared as null and v