1. Preferential right to acquire property under Section 22 of the Hindu Succession Act — Enforcement by co-heir. (Para 1 , 2 )
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2026 Supreme(MP) 672
IN THE HIGH COURT OF MADHYA PRADESH AT GWALIOR
G. S. AHLUWALIA, J.
Paan Singh Tomar – Petitioner
Versus
Bhagirath Sharma (Deleted) Through Lrs A. Harishankar Sharma And Others – Respondents
Civil Revision No. 146 Of 2010
Decided On : 08-01-2026
Advocates Appeared:
For the Appellant :Shri N.K.Gupta Senior Advocate with Shri Saket Sharma- Advocate
For the Appellant :Shri N.K.Gupta Senior Advocate with Shri Saket Sharma- Advocate
Alienation of property by a Class I heir in violation of Section 22(1) of the Hindu Succession Act is voidable, not void. Such transfers are maintainable via application, and the consideration for the transfer should be the amount paid in the sale-deed being set aside.
Headnote:(A) Hindu Succession Act, 1956 - Section 22 - Preferential right to acquire property - Interest in immovable property devolving upon Class I heirs - Alienation of interest by a co-heir in violation of Section 22(1) is voidable and not void at the instance of other non-alienating co-heirs (Paras 11, 12) - Challenge to such sale-deed by filing an application under Section 22 of the Act is maintainable (Para 16).
(B) Limitation Act, 1963 - Article 136 - Period of limitation for execution of a decree is 12 years - Active pursuit of execution proceedings precludes a finding that a party has waived their right or remained inactive (Para 9).
(C) Determination of Consideration - Section 22(2) - Where a sale-deed is set aside on the ground of preferential right, the consideration for the subsequent sale-deed should be based on the amount paid in the specific transaction being set aside, rather than a historical price from a prior transaction (Paras 19, 22).
Facts of the case:
A co-heir sold their share of property to a stranger, which was subsequently set aside by a court decree recognizing the preferential right of another co-heir. The first co-heir later sold the same property to a third party. The preferential right holder applied under Section 22(2) of the Hindu Succession Act to set aside this second sale. The Trial Court allowed the application but fixed the consideration amount based on a nominal prize from a prior 1988 transaction.
Findings of Court:
The court held that the alienation was voidable and the application was maintainable. It ruled that the co-heir had not been inactive as execution proceedings were pending. It further found that the consideration amount should be the price paid in the sale-deed being set aside (Rs. 83,700/-) rather than the outdated historical value (Rs. 10,000/-).
Issues: Whether the alienation of property in violation of Section 22(1) of the Hindu Succession Act is void or voidable; whether a separate suit is mandatory to enforce preferential rights; and how the consideration amount should be determined under Section 22(2).
Ratio Decidendi: Transfer of interest by a co-heir in violation of Section 22(1) is voidable, meaning it can be challenged via application after the transaction has come into existence. The appropriate consideration for the transfer to the preferential right holder should reflect the value involved in the specific sale-deed being set aside.
Result: Civil revision partially allowed; order modified to increase consideration amount to Rs. 83,700/-.
Legal Category Hierarchy
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civil law
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property law
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hindu succession act
- section 22 — preferential right to acquire property
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hindu succession act
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property law
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practice and procedure
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civil procedure code
- section 115 — revision (Para 1)
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execution of decrees
- limitation — article 136
- summary suits
-
civil procedure code
Table of Contents
2. Delay and inaction by co-heir — Maintainability of application under Section 22 — Determination of consideration. (Para 3 )
ORDER :
G. S. AHLUWALIA, J.
This civil revision under Section 115 of CPC has been filed against the order dated 15/11/2010 passed by Civil Judge, Class II, Gohad, District Bhind in MJC No.10/2008, by which an application filed by respondent No.1 under Section 22(2) of the Hindu Succession Act has been allowed, and sale- deed dated 22/11/2003 has been set aside, and non-applicants No. 2 to 6 have been directed to execute a sale-deed in favour of respondent No.1 for a consideration amount of Rs.10,000/-.
2. Challenging the order passed by the Court below, it is submitted by counsel for applicant that respondent No.1 and respondents No.2 to 6 are related to each other and undisputedly, respondent No.1 has a preferential right to purchase the property in dispute. Earlier, by registered sale-deed dated 19/02/1988, Hakim Singh, who had 1/4th share after the death of his father Harvilas had sold the property in dispute to one Bashir Ahmed. Accordingly, respondent No.1 had filed a suit for declaration of title, enforcement of preferential right, and for correction of the revenue records against respondents No.2 to 6 as well as Bashir Ahmed. The said suit was decreed by judgment and decree dated 18/09/1993 passed by Civil Judge, Class-II, Gohad, District Bhind, and it was held that respondent No.1 has a preferential right to purchase the share of Hakim Singh and sale-deed dated 19/02/1988 executed in favour of Bashir Ahmed was set aside. It is submitted that thereafter respondent No.1 did not take any step to get the sale-deed executed and ultimately, Hakim Singh sold the property in dispute to applicant by registered sale-deed dated 22/08/2003 for a consideration amount of Rs.83,700/-. It is submitted that thereafter, respondent No.1 filed an application under Section 22(2) of the Hindu Succession Act for enforcement of his preferential right, and by the impugned order the Trial Court has declared the sale-deed executed in favour of applicant as null and void and has directed that respondents No.2 to 6 shall execute a sale-deed in favour of respondent No.1 on payment of a consideration amount of Rs.10,000/-.
3. Challenging the order passed by the Court below, it is submitted by counsel for applicant that initially in the year 1993, the suit filed by respondent No.1 was allowed and his preferential right to purchase the property in dispute was adjudicated in his favour. However, for the next ten years, he did not take any step. Furthermore, as required under Section 22 of the Hindu Succession Act, it was also obligatory on the part of the Trial Court to determine the cost of the property, which has not been done by the Trial Court.
4. None appears for respondents though served.
5. Heard the learned counsel for the applicant.
6. Section 22 of the Hindu Succession Act reads as under:-
"22. Preferential right to acquire property in certain cases.—
(1) Where, after the commencement of this Act, an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.
(2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application.
(3) If there are two or more heirs specified in class I of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred.
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