Bombay HC: Testamentary demarcation amounts to partition.

 As regards jointness, it is not in dispute that the property has devolved on three sons by virtue of will executed by their father. The will demarcates the portion allotted to each son. There is a specific averment in the plaint that the father had divided the property between three brothers by virtue of the will. It is further stated that family of each brother was in occupation of the specific portion allotted to him by virtue of the will. Thus, separate identifiable portions in the suit house were bequeathed by the father in favour of each son. There is clear demarcation of share of each son in the will. It is, therefore, clear that the brothers got three separately demarcated shares in the suit property by virtue of the will. The will vested each brother with a separate share in the suit property and each brother received separate possession thereof. The plaintiffs and defendant Nos.4 to 13 are descendants of the said three brothers. The suit house, therefore, cannot be said to be a joint family dwelling house of the three sons. The contention is fortified by the plaint averments. The only contention in the plaint with respect to the suit property being joint residential house is that the same was jointly mutated in the records of City Survey Department and Nagpur Municipal Corporation. It is well settled that the mutation entries are merely for fiscal purposes and by themselves cannot determine the nature of property held by a co-owner. The contention that the property is joint, is sufficiently negated by the contents of the will and other averments in the plaint.  {Para 20}

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 91 of 2025

Decided On: 16.10.2025

Saroj and Ors. Vs. Umesh and Ors.

Hon'ble Judges/Coram:

R.W. Joshi, J.

 Citation: 2025:BHC-NAG:11283, MANU/MH/6940/2025.

Read full judgment here :Click here.

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Bombay HC: Section 22 of the Hindu Succession Act applies only to intestate succession.

 There is another reason for which right of preemption will not be available i.e. the property has devolved by testamentary succession and not by intestate succession. {Para 13}

Ratio:- The right of pre-emption under Section 22 is available only when property devolves by intestate succession and only inter se between Class-I heirs of the deceased. It does not apply where the property devolves by testamentary succession (Will).

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 91 of 2025

Decided On: 16.10.2025

Saroj and Ors. Vs. Umesh and Ors.

Hon'ble Judges/Coram:

R.W. Joshi, J.

 Citation: 2025:BHC-NAG:11283, MANU/MH/6940/2025.

Read full judgment here :Click here.

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Bombay HC: Section 44 of the Transfer of Property Act does not invalidate sale by a co-owner.

In view of the aforesaid, in the considered opinion of this Court, even Section 44 of the TP Act does not come to the aid of the plaintiffs for the reason that the house property was not joint dwelling house of families of all three brothers and also on the ground that Section 44 of the TP Act does not prohibit sale of property by a co-owner. 

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 91 of 2025

Decided On: 16.10.2025

Saroj and Ors. Vs. Umesh and Ors.

Hon'ble Judges/Coram:

R.W. Joshi, J.

 Citation: 2025:BHC-NAG:11283, MANU/MH/6940/2025.

Read full judgment here :Click here.

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Bombay HC: Mutation entries cannot determine the nature of property held by a co-owner

  As regards jointness, it is not in dispute that the property has devolved on three sons by virtue of will executed by their father. The will demarcates the portion allotted to each son. There is a specific averment in the plaint that the father had divided the property between three brothers by virtue of the will. It is further stated that family of each brother was in occupation of the specific portion allotted to him by virtue of the will. Thus, separate identifiable portions in the suit house were bequeathed by the father in favour of each son. There is clear demarcation of share of each son in the will. It is, therefore, clear that the brothers got three separately demarcated shares in the suit property by virtue of the will. The will vested each brother with a separate share in the suit property and each brother received separate possession thereof. The plaintiffs and defendant Nos.4 to 13 are descendants of the said three brothers. The suit house, therefore, cannot be said to be a joint family dwelling house of the three sons. The contention is fortified by the plaint averments. The only contention in the plaint with respect to the suit property being joint residential house is that the same was jointly mutated in the records of City Survey Department and Nagpur Municipal Corporation. It is well settled that the mutation entries are merely for fiscal purposes and by themselves cannot determine the nature of property held by a co-owner. {Para 20}.

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 91 of 2025

Decided On: 16.10.2025

Saroj and Ors. Vs. Umesh and Ors.

Hon'ble Judges/Coram:

R.W. Joshi, J.

 Citation: 2025:BHC-NAG:11283, MANU/MH/6940/2025.

Read full judgment here :Click here.

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Bombay HC: Descendants of Class-I heirs cannot claim pre-emption under Section 22 of the Hindu Succession Act

Section 22 of the Hindu Succession Act provides right of preemption in favour of heirs of a deceased Hindu inter se amongst the Class-I legal heirs, in case where the owner dies intestate. Perusal of the provision will indicate that right of preemption is not available in case of a testamentary succession. Moreover, the right is conferred inter se between legal heirs specified in Class-I of the Schedule. The property belonged to Tukaram, his Class-I legal heirs were his widow-Janki and three sons, who are predecessors of the plaintiffs and defendant Nos.4 to 13. The right of preemption is restricted only to Class-I legal heirs of the deceased-owner and not to the descendants of Class-I legal heirs of the owner. In the case at hand, it is apparent that the plaintiffs and defendant Nos.4 to 13 are descendants of Class-I legal heirs of deceased-Tukaram. They are not Class-I legal heirs of Tukaram. In view of the above, it is apparent that the plaintiffs cannot claim right of preemption against defendant Nos.4 to 12. {Para 12}

IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Second Appeal No. 91 of 2025

Decided On: 16.10.2025

Saroj and Ors. Vs. Umesh and Ors.

Hon'ble Judges/Coram:

R.W. Joshi, J.

 Citation: 2025:BHC-NAG:11283, MANU/MH/6940/2025

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Whether the brother of vendor will have superior pre-emption right than the purchaser of property who was in the use of it?

In the present case, it has come on the record before the Trial Court that Devicharan, the predecessor of the Appellants, had a pre-existing right in respect of the amenity of the common courtyard or sahan. This was admitted in the written statement filed by Beni Prasad in Suit 43 of 1980. PW 1 during his cross-examination was confronted with the above written statement. What emerges from the above admission is that Devicharan had a right in common in respect of the amenity of the courtyard. During the course of proceedings before this Court, it was admitted that the courtyard was shared between Beni Prasad and Devicharan. Therefore, both their rights would fall within the ambit of the provisions of Section 6(1)(ii). In terms of the provisions of Section 5(1)(c), the right of pre-emption would not accrue to any person with an equal or inferior right of pre-emption. Kirorilal executed a sale deed on 6 January 1990 in favour of Devicharan who within the meaning of Section 6(1)(ii) had a right of pre-emption. But the right of pre-emption of Devicharan was inferior to the right which was claimed by Beni Prasad as the brother of Kirorilal. Devicharan's right Under Section 6(ii) was subject to a superior right of Beni Prasad by virtue of Section 6(3). Section 6(3) states that even among persons of the same class, the nearer in relationship to the person whose property is transferred excludes the more remote.

 In the present case, the Plaintiff (Beni Prasad) had a superior right of pre-emption by virtue of the provisions of Section 6(3) since he was the brother of the second Defendant. Devicharan has an inferior right of pre-emption as compared to Beni Prasad. Hence his claim cannot prevail over the superior right of pre-emption of Beni Prasad.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 482 of 2020 

Decided On: 19.02.2020

 Suresh Chand  Vs.  Suresh Chander 

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud and Ajay Rastogi, JJ.

Author: Dr. D.Y. Chandrachud, J.

Citation: (2020) 4 SCC 643,MANU/SC/0206/2020

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Whether preferential right given U/S 22 of Hindu succession Act is applicable to agricultural land?

 When the Parliament thought of conferring the rights of succession in
respect of various properties including agricultural holdings, it put a
qualification on the right to transfer to an outsider and gave preferential
rights to the other heirs with a designed object. Under the Shastrik Law, the
interest of a coparcener would devolve by principles of survivorship to
which an exception was made by virtue of Section 6 of the Act. If the
conditions stipulated in Section 6 were satisfied, the devolution of such

interest of the deceased would not go by survivorship but in accordance with
the provisions of the Act. Since the right itself in certain cases was created
for the first time by the provisions of the Act, it was thought fit to put a
qualification so that the properties belonging to the family would be held
within the family, to the extent possible and no outsider would easily be
planted in the family properties. In our view, it is with this objective that a
preferential right was conferred upon the remaining heirs, in case any of the
heirs was desirous of transferring his interest in the property that he received
by way of succession under the Act.
21. We, therefore, conclude that the preferential right given to an heir of a
Hindu under Section 22 of the Act is applicable even if the property in
question is an agricultural land. 
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2553 OF 2019

Babu Ram Vs Santokh Singh

Dated:March 7, 2019.
Citation: AIR 2019 SC 1506

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Leading judgment on law of pre-emption

The issue to be decided is a legal issue which stands in a narrow compass. Before dealing with the issue itself, it would be pertinent to refer to the Constitution Bench judgment of this Court in the case of Shyam Sunder and Ors. v. Ram Kumar and Anr., MANU/SC/0405/2001 : (2001) 8 SCC 24 wherein this Court considered the effect of the amendment made to the 1913 Act. This Court held that if Section 15 of the 1913 Act was amended during the pendency of the appeal before the Supreme Court, the decree of pre-emption would not be affected by such amendment. After discussing the entire law, the Constitution Bench culled out the following legal principles:

10. On an analysis of the aforesaid decisions referred to in the first category of decisions, the legal principles that emerge are these:

1. The pre-emptor must have the right to pre-empt on the date of sale, on the date of filing of the suit and on the date of passing of the decree by the court of the first instance only.

2. The pre-emptor who claims the right to pre-empt the sale on the date of the sale must prove that such right continued to subsist till the passing of the decree of the first court. If the claimant loses that right or a vendee improves his right equal or above the right of the claimant before the adjudication of suit, the suit for pre-emption must fail.

3. A pre-emptor who has a right to pre-empt a sale on the date of institution of the suit and on the date of passing of decree, the loss of such right subsequent to the decree of the first court would not affect his right or maintainability of the suit for pre-emption.

4. A pre-emptor who after proving his right on the date of sale, on the date of filing the suit and on the date of passing of the decree by the first court, has obtained a decree for pre-emption by the court of first instance, such right cannot be taken away by subsequent legislation during pendency of the appeal filed against the decree unless such legislation has retrospective operation.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2062 of 2009

Decided On: 08.09.2017

Vijay Singh Vs. Shanti Devi and Ors.

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Whether parties are relegated to position existing prior to date of exparte order after setting aside of exparte decree?

 An ex parte decree is passed when the court believes that the Defendant has been served but is not appearing in court despite service of summons. In the present case, the appellate court while setting aside the ex parte decree, has come to the conclusion that the Defendant Shanti Devi (Respondent No. 1 herein) was not served and, therefore, the court had wrongly proceeded against her ex parte. That finding has been upheld till this Court. In our view, the effect of this would be that the ex parte decree, on its being set aside, would cease to exist and become non-est. After the ex parte decree is set aside, it is no decree in the eyes of law. The decree passed by the trial court on merits should be treated as the decree of the first court. We may make it clear that we are not dealing with those cases where a case has been decided on merits and the decree is set aside by the appellate court on any other ground and the matter remanded to the trial court for decision afresh. We leave that question open.

20. Here, we are dealing with a case where the Defendant was proceeded against ex parte and that order has been set aside on the ground that she has not been served and, therefore, she has been relegated to the position existing on the date she was proceeded against ex-parte, i.e., 6th April, 1990. After the amendment was introduced on 17th May, 1995, there was no right existing in the Plaintiff to file a suit for pre-emption. Since the decree on contest was passed on 27th November, 1999 the Plaintiff had no existing right of pre-emption on that date and the suit was rightly dismissed. This decree is the only subsisting decree of the first court.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 2062 of 2009

Decided On: 08.09.2017

Vijay Singh Vs. Shanti Devi and Ors.

Hon'ble Judges/Coram:

Madan B. Lokur and Deepak Gupta, JJ.

Citation: (2017) 8 SCC 837,2018(2) MHLJ 7

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Whether one heir can purchase property if it is proposed to be sold to other heirs as per S 22 of Hindu succession Act?

Section 22 of the Hindu Succession Act, 1956 clearly
confers additional right of pre-emption in case of interest in any
immovable property devolving upon two or more heirs specified in

clause I of the Schedule and in case any one of such heirs proposing
to transfer his or her own interest in the property or business, the other
heirs shall have a preferential right to acquire the interest proposed to be
transferred. The plaintiff being a brother of the defendant no.1 and was
having joint interest in the suit property and rightly applied for preemption
in the share of the defendant no.1 in the suit property by
exercising right under Section 22 of the Hindu Succession Act, 1956,
the learned trial Judge as well as the Lower Appellate Court have
considered the said provision of Section 22 of the Hindu Succession
Act, 1956 and have rendered a concurrent finding of fact that the
plaintiff was entitled to apply for pre-emption and purchase the share
of the defendant no.1 in the suit property before the same was sold to
the defendant no.2. Learned counsel appearing for the defendant no.2 is
unable to demonstrate before this Court as to how the said concurrent
finding of the fact rendered by both the Courts below is perverse and
contrary to Section 22 of the Hindu Succession Act, 1956.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
 CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO.450 OF 1993
 Eknath Daval Thete 
V
 Ganpat Dagdu Thete 
 CORAM : R.D. DHANUKA, J.

         Dated :   6th January 2016.
Citation: 2017(1) ALLMR236 Bom

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Whether right of pre-emption is available to coparcener even if transferee has not filed suit for partition?

The next question arises as to whether the plaintiffs
have a right of re-purchase as provided under Section 4 of the
Partition Act.
Law is well-settled that a coparcener/co-owner/cosharer
is permitted to exercise his right of re-purchase under Section
4 of the Partition Act only when the transferee has sued for partition
of his/her purchased property by filing a suit for partition. In the
instant case, the transferee, namely, defendant no. 10 has not filed 
any suit for partition and for allotment of his purchased property to
the share of his vendor. In the case of Babulal –v- Habibnoor Khan
(Dead) by L.Rs. and others, reported in AIR 2000 SC 2684, the
Hon’ble Supreme Court held as follows:-
“10. Therefore, one of the basic conditions for
applicability of Section 4 as laid down by the
aforesaid decision and also as expressly mentioned
in the section is that the stranger-transferee must
sue for partition and separate possession of the
undivided share transferred to him by the co-owner
concerned. It is, of course, true that in the said
decision it was observed that even though the
stranger-transferee of such undivided interest moves
an execution application for separating his share by
metes and bounds it would be treated to be an
application for suing for partition and it is not
necessary that a separate suit should be filed by
such stranger-transferee. All the same, however,
before Section 4 of the Act can be pressed into
service by any of the other co-owners of the dwelling
house, it has to be shown that the occasion had
arisen for him to move under Section 4 of the Act
because of the stranger-transferee himself moving for
partition and separate possession of the share of the
other co-owner which he would have
purchased………...”
A similar view has also been taken in a decision in the
case of Gautam Paul –v- Debi Rani Paul and others, reported in
AIR 2001 SC 61, wherein the Hon’ble Supreme Court in paragraph
23 held as follows:-
“23. We are in agreement with this opinion. There
is no law which provides that co-sharer must only
sell his/her share to another co-sharer. Thus
strangers/outsiders can purchase shares even in a
dwelling house. Section 44 of the Transfer of
Property Act provides that the transferee of a share
of a dwelling house, if he/she is not a member of
that family, gets no right to joint possession or
common enjoyment of the house. Section 44
adequately protects the family members against
intrusion by an outsider into the dwelling house.
The only manner in which an outsider can get
possession is to sue for possession and claim
separation of his share. In that case Section 4 of the
Partition Act comes into play. Except for Section 4
of the Partition Act there is no other law which
provides a right to a co-sharer to purchase the
share sold to an outsider. Thus before the right of
pre-emption, under Section 4, is exercised the
conditions laid down therein have to be compliedwith. As seen above, one of the conditions is that
the outsider must sue for partition. Section 4 does
not provide the co-sharer a right to pre-empt where
the stranger/outsider does nothing after purchasing
the share. In other words, Section 4 is not giving a
right to a co-sharer to pre-empt and purchase the
share sold to an outsider anytime he/she wants.
Thus even though a liberal interpretation may be
given, the interpretation cannot be one which gives
a right which the legislatures clearly did not intend
to confer. The legislature was aware that in a suit
for partition the stranger/outsider, who has
purchased a share, would have to be made a party.
The legislature was aware that in a suit for partition
the parties are interchangeable. The legislature was
aware that a partition suit would result in a decree
for partition and in most cases a division by metes
and bounds. The legislature was aware that on an
actual division, like all other co-sharers, the
stranger/outsider would also get possession of his
share. Yet the legislature did not provide that the
right for pre-emption could be exercised “in any suit
for partition”. The legislature only provided for such
right when the “transferee sues for partition”. The
intention of the legislature is clear. There had to be
initiation of proceedings or the making of a claim to
partition by the stranger/outsider. This could be by
way of initiating a proceeding for partition or even
claiming partition in execution. However, a mere
assertion of a claim to a share without demanding
separation and possession (by the outsider) is not
enough to give to the other co-sharers a right of preemption.
There is a difference between a mere
assertion that he has a share and a claiming for 
possession of that share. So long as the strangerpurchaser
does not seek actual division and
possession, either in the suit or in execution
proceedings, it cannot be said that he has sued for
partition. The interpretation given by Calcutta,
Patna, Nagpur and Orissa High Courts would result
in nullifying the express provisions of Section 4,
which only gives a right when the transferee sues
for partition. If that interpretation were to be
accepted then in all cases, where there has been a
sale of a share to an outsider, a co-sharer could
simply file a suit for partition and then claim a right
to purchase over that share. Thus even though the
outsider may have, at no stage, asked for partition
and for the delivery of the share to him, he would be
forced to sell his share. It would give to a co-sharer
a right to pre-empt and purchase whenever he/she
so desired by the simple expedient of filing a suit forpartition. This was not the intent or purpose of
Section 4. 

 HIGH COURT OF ORISSA: CUTTACK

 F.A. NO. 82 OF 2000

Rama Chandra Prusty 

-Versus
Bidyadhar Prusty and others 
 Date of Judgment: 11.12.2015

P R E S E N T:
 THE HONOURABLE SHRI JUSTICE K.R. MOHAPATRA
Citation:AIR 2016 (NOC)730 Orissa

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When pre-emption suit can be dismissed for non compliance of order of court?

From the combined reading of the aforestated provisions, it clearly emerges that the decrees in the pre-emption suits have to be passed in accordance with Rule 14 of Order XX of the CPC. Since the right of preemption is a very weak right, which tends to hamper the right of a person to transfer his property, the law requires very strict vigilance and compliance of the provisions contained in the said Act, when the decree is passed in favour of the plaintiff i.e. the pre-emptor. The very expression that the suit shall be dismissed, contained in the above provisions signifies the strict compliance of the directions given the decree.

IN THE HIGH COURT OF RAJASTHAN (JAIPUR BENCH)

S.B. Civil Revision Petition No. 141/2013

Decided On: 07.04.2014

Appellants: Rajendra Kumar Chachan
Vs.
Respondent: Banne Singh

Hon'ble Judges/Coram:Bela M. Trivedi, J.

Citation: 2014 (2) WLN 457 (Raj.),AIR 2014 Raj 102

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