2024:BHC-NAG:12227 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR.

SECOND APPEAL NO. 547 OF 20 19

1) Smt. Sumati @ Asha Wd/o Anil Subhedar, Aged about 71 years, Occ. - Retired, 2) Shri Deodatta S/o Anil Subhedar, Aged about 46 years, Occ.- Advocate, 3) Shri Nishikant S/o. Kashinath Subhedar, Aged about 71 years, Occ.- Retired, All R/o. Plot No. Q-21, Laxmi Nagar, Nagpur- 22. …. APPELLANT S // VERSUS //

1) Smt. Yashodhara Wd/o Sunil Subhedar, Aged about 75 years, Occu. - Retired, 2) Shri Rutvik S/o Sunil Subhedar, Aged about 43 years, Occ. - Advocate, Nos.1 and 2 both R/o. Plot No.82, Laxmi Nagar, Nagpur 22.

3) Smt. Gayatri W/o Amit Pande, Aged about 49 years, R/o. Housewife, R/o. 7, Bhagwaghar Lay Out, Dharampeth, Nagpur.

4) Shri Subhash S/o Kashinath Subhedar(Dead)

through his Legal Representatives :

4(a) Smt. Sumedha Wd/o Subhash Subhedar, Aged about 72 years, Occ.-Housewife, 4(b) Shri Kartik S/o Subhash Subhedar, Aged about 46 years, Occ.-Service, 4(c) Mrs. Kalyani W/o Rakesh Choudhary, Aged about 50 years, Occ.-Service, All R/o. Plot No. N-5, Shreerang Apartment, Near Aath Rasta Chowk, Laxminagar, Nagpur – 440 022.

5) Shri Satish S/o Sudarshan Lade, Aged adult, Occ.- Business, 6) Smt. Pratibha W/o Satish Lade, Aged Adult, Occ.- Business, No.5 to 6 R/o. Plot No.4, Public Co-operative Housing Society, Atre Lay Out, Nagpur – 22. …. RESPONDENT S _____________________________________________________________

Mr. N. R. Bhishikar, Advocate for Appellants.

Mr. S. P. Dharmadhikari, Senior Advocate assisted by Mr. A. A. Sambaray, Advocate for Respondent Nos.1 to 3.

Mr. R. R. Prajapati, Advocate for Respondent No.4(a) and (b).

Mr. R. A. Bhandakkar, Advocate for Respondent Nos.5 & 6.

_____________________________________________________________

CORAM : SANJAY A. DESHMUKH, J .

DATE OF RESERVING THE JUDGMENT : 21 .0 8 .2024 . DATE OF PRONOUNCING THE JUDGMENT : 25.10.2024.

JUDGMENT.

1. This appeal is preferred against the Judgment and decree passed by learned District Judge-10, Nagpur in Regular Civil Appeal No. 409 of 2007, dated 25.06.2019. The said first appeal was preferred against the Judgment and decree passed by learned Joint Civil Judge, Senior Division, Nagpur in Special Civil Suit No.126 of

2006 dated 02.05.2007.

2. Brief facts of the plaintiffs case are as under :

(i) The plot No.21 in Block No. Q, total area admeasuring 8000 sq.fts. (743.21 sq.mtrs.), situated at Scientific Co-operative Housing Society Limited, Nagpur which is portion out of the Khasra Nos. 4/1, 4/2, 7/2, 25, 26/1, 1-4 of Mouza Ajni City, Survey No.359, Sheet No.34 having Municipal Corporation house No.321, situated at Laxmi Nagar, Ward No.75, is the suit property.

(ii) The suit property was purchased by Late Kashinath Subhedar in the name of his wife Sushila Kashinath Subhedar by sale-deed dated 09.08.1962. A house was constructed on some part of it. The plaintiffs are residing in it. Sunil, Anil, Subhash and Nishikant are the sons of late Kashinath and late Sushilabai. They were residing jointly there. Kashinath died on 09.11.1987 and Sushilabai died on 15.12.2001. They executed their separate Wills of the suit property. Their first son Sunil died on 08.05.2003. His wife Yashodhara is defendant No.1 and her son Rutvik and daughter Gayatri are defendant Nos.2 and 3. Their second son Anil died on 22.07.2001. His wife Sumati @ Asha is plaintiff No.1 and her son Devdatt is plaintiff No.2. Their fourth son Nishikant is plaintiff No.3 and third son Subhash is defendant No.4.

(iii) It is the case of the plaintiffs that they have statutory right of pre-emption under Section 22 of the Hindu Succession Act, 1956 (for short the “Act of 1956”) to purchase share of defendant Nos.1 to 4 in the suit property. Defendant Nos.1 to 4 have statutory obligation to give offer to the plaintiffs, if they are willing to transfer by sale their share in the suit property to any stranger. The plaintiffs contended that defendant Nos.1 to 3 have executed an agreement to sale of their undivide