IMPORTANT POINT
Preferential right to acquire property – Right under Section 22 of Hindu Succession Act, 1956 cannot be exercised after partition between co-heirs.

ORDER (ORAL)

This Miscellaneous Application has been filed for setting aside the order dated 07.01.2022 passed by learned Sub-Judge, III, Buxar in Title Suit no. 431/2021 whereby and whereunder the learned Sub-Judge has been pleased to dismiss the application under Order XXXIX Rule 1 of the Code of Civil Procedure filed on behalf of the plaintiff-appellant.

2. The plaintiff-appellant has filed the Title Suit for declaring that a sale deed executed by Vinod Kumar, son of late Indra Sen Pahwa (defendant 1st set) in favour of defendant 2nd set is forged, fabricated and inoperative being in excess of the share of the vendor. The plaintiff-appellant has also claimed preferential right to purchase the land pertaining to the said sale deed and it is further prayed that if at all it is found that the sale pertaining to the area of sale deed is genuine in any manner, an order for endorsement of registration of transfer of the subject matter of land of such sale deed in favour of the plaintiff-appellant be made. The appellant has shown his willingness for paying the appropriate/adequate consideration money or whatever amount which may be fixed by the learned court below as consideration money. The plaintiff-appellant also paid for temporary injunction restraining the defendants in causing any change in the status of the property covered under the sale deeds or transfer the same as a whole or in part till the adjudication of the suit.

3. It is the case of the plaintiff-appellant that the property fully described in Schedule I of the plaint is part and parcel of the total area of 4.077 decimal of land appertaining to Khata no. 90, plot no. 2062, area 7 kadi; Khata no. 90, plot no. 2063, area 32 kadi; Khata no. 168, plot no. 2066, area 6 kadi, total being 45 kadi equivalent to 4.077 decimal upon which a house/building is standing. The plaintiff-appellant claimed that this property belonged to one Babu Dayal Singh (grand-father of the plaintiff-appellant) which was passed on to the father of the plaintiff, Indra Sen Pahwa by way of family partition on 02.11.1976. The property came under the ownership of Indra Sen Pahwa, Dulhin Nirmala Devi (wife of Indra Sen Pahwa), Vinod Kumar Pahwa and Vijay Kumar Pahwa (both are sons of Indra Sen Pahwa) and the same was also mutated in their names. The said Indra Sen Pahwa being karta of the family sold 2.25 decimal from north side to meet his essential necessities to one Rekha Gandhi, wife of Guru Charan Gandhi (daughter of Indra Sen Pahwa) for consideration amount of Rs. 2,34,000/-. He executed a registered sale deed on 29.10.2003 which was registered on 04.11.2003. The plaintiff claims that rest of the properties having an area of 1.827 decimal stands as joint property of the family and after death of Indra Sen Pahwa and his wife Nirmala Devi, the entire property comprising old dwelling house passed on to their sons Vinod Kumar Pahwa and Vijay Kumar Pahwa jointly having unity of right, title, interest and possession.

4. Further case of the plaintiff-appellant is that the house is built in such a manner that any stranger cannot be accommodated due to common wall which cannot be separated and which will cause breach of secrecy of the family. It is stated that the plaintiff had shown his willingness to defendant no. 1 to purchase his share in the residential house, but defendant no. 1 did not show any intention to sell the same. Later on, the plaintiff-appellant came to know that the said property has been transferred to defendant second set–respondents by defendant no. 1 by way of registered instrument. He applied for certified copy of the sale deed after coming to know about the said transaction and found that the defendant no. 1 made wrong recitals of oral partition between the brothers and had also sold the property in excess of the share /area of defendant no. 1.

5. It is submitted that the defendant no. 1 would be entitled only for 0.913 decimal of land whereas he has sold 1.125 decimal of land out