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.

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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.

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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.

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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.

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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 gift of a immovable property to a stranger to the exclusion of the other heirs of Class-I can be regarded as a transfer ?

There is no ambiguity that the gift is a transfer without consideration. The legislature never conceptualised the gift for consideration or adequate consideration but it is a gratuitous transfer out of love and affection and sometimes for the spiritual benefit of the donor. It is incongruous to say that the gift is not a transfer. It has all the incident of transfer and the right, title and interest of the donor passes to the donee upon execution, registration and acceptances thereof.

 The element of “transfer” divest the executant of the deed of all his right which came to be vested upon the recipient thereof may be by way of a gift which does not contain the consideration. Such right of the recipient cannot be taken without the payment of the consideration and precisely for such reason sub-Section(2) has been incorporated. The vested right can only be divested by well recognised mode of transfer. The hypothetical example can be made in this regard when ‘A’ gifted his immovable property to ‘B’ out of love and affection. B in turn wanted to sale the said property to any stranger as such deed of gift is not conditional one. He is entitled to receive the consideration although he acquired the right, title and interest by way of a gift which admittedly does not contain consideration.

In the light of the above, Section 2 should be interpreted when the court deprives a stranger to the property acquiring an interest by way of a gift and such right is being vested upon the heir specified in Class-I of the Schedule. It is anomalous when a co-sharer who gifted the property and the donee who received the property shall not be entitled to any consideration if the property by the operation of the law is directed to be given to the co-sharer or the heir is specified in Class-I of the Schedule. The proper meaning which can be assigned to sub- Section(2) of Section 22 is the moment the Court finds that an heir is entitled to a preferential right under sub-Section(1), in absence of any agreement, the consideration so determined shall pass to the stranger purchaser. Any other interpretation would render the provision otiose and redundant. The word ‘transfer’ has to be given a pragmatic meaning and not in conjunction with the consideration appearing in sub- Section(2) of Section 22 of the Act. If any restrictive meaning of the word transfer is given, it would be a premium to the heir divesting his right by way of a gift to wriggle out of mischief of the provision contained in sub-Section(1) of Section 22 of the Act.

We, thus, held that even a gift being the transfer comes within the ambit of Section 22 of the Act and the heir coming within Class-I of the Schedule is entitled to preferential right.

So far as the concluded transfer is concerned, we do not find any restriction having put under Section 22 to have its restricted applicability in case of proposed transfer if the transfer has been affected without his knowledge, still the heir can maintain the proceeding invoking the preferential right enshrined under Section 22 of the Act. We thus modifying the decree of the Trial Court to the extent that plaintiff has a preferential right in respect of Ka(1) Schedule Property.

 IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION

HARISH TANDON & KAUSIK CHANDA, JJ.

C.A.N 11623 OF 2017 IN F.A.T 661 OF 2017 

 Judgment On: 08.04.2021

Pabitra Kumar Maity Vs. Smt. Shyamali Manna & Ors

Harish Tandon, J.:

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What is distinction between preferential right" under S.22 of Hindu Succession Act and right of Pre-emption?

The term preferential right and pre emption are not the same.

The remedy of "preferential right" under S.22 of Hindu Succession Act  can be exercised before the sale transaction. The section says that when the co-sharer proposes to transfer his share, the other co sharer can apply for purchase of said share. This situation can arise when co sharer enters into oral or written agreement to sale with third party.

Once the sale is complete, the remedy is to apply for right of pre emption. This right is recognized by some state Acts or by custom or byprecedents. In the absence of statutory provision, the right can be exercised as civil right.

If the Court grant decree of pre emption, naturally the earlier sale deed requires to be cancelled. Because, if earlier sale deed remains in existence, it will affect the plaintiffs/pre emptor right in property. The previous vendee will be entitled for consideration amount in lieu of cancellation of his sale deed.

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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 right of pre-emption can be claimed against valid bonafide gift deed?

I have considered the rival submissions of the parties.
The petitioners have questioned the legality of the deed of gift
executed by respondent no. 6 in favour of respondent no. 8 on two
counts. It has been submitted that the said deed of gift was brought
into existence only to defeat the right of preemption. The correct
address of the donee has not been stated in the said document. The
donor (respondent no. 6) even after execution of the deed of gift
continued in possession of the said land. He has, however, not
disputed the legal position in law that right of preemption would not 
survive in respect of deed of gift. This is presumably because the
statutory provisions clearly spelt out the same. Further, in Dhanik Lal
Mahto (supra), a Division Bench of this Court, while dealing with
this question in paragraph 7 held as under:
7. The contention aforesaid takes one to the very
root of the nature of the right of pre-emption generally
and in particular under S.16(3) of the Act It is
common ground before us that S.16(3) is only a very
limited statutory recognition of the otherwise wellknown
customary right of pre-emption. It has been
held in a long line of precedent having the stamp of
approval of the Final Court that the right of preemption
is indeed a piratical right which may well be
defeated by all legitimate means. Now, the
explanation to sub-sec.(1) of S.16 in terms excludes
inheritance, bequest or gift from the ambit of transfer
under the said section. Therefore, if a valid and
genuine deed of gift is made, the same is obviously
not pre-emptable under the statute. Consequently, a
bona fide transaction of gift can legitimately affect
and defeat a tenuous claim to pre-emption. 
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.7093 of 1995

Urmila Devi, wife of Sri Budhi Nath Prasad Yadav,
V
State of bihar

CORAM: HONOURABLE MR. JUSTICE KISHORE KUMAR MANDAL
Citation;AIR 2015(NOC)859 Patna
Date: 16-04-2015

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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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Leading Supreme Court Judgment on Pre-emption

It was next contended that the appellant was guilty of fraud in that in order to defeat the right of the pre-emptors a deed of sale was not executed although as a matter of fact price had been paid, possession had passed and for all intents and purposes the appellant had become the owner of the property and that conduct such as this would defeat the very law of pre-emption. The right to pre-empt the sale is not exercisable till a pre-emptible transfer has been effected and the right of pre-emption is not one which is looked upon with great favour by the courts presumably for the reason that it is in derogation of the right of the owner to alienate his property. It is neither illegal nor fraudulent for parties to a transfer to avoid and defeat a claim for pre-emption by all legitimate means. In the Punjab where the right of pre-emption is also statutory the courts have not looked with disfavour at the attempts of the vendor and the vendee to avoid the accrual of right of pre-emption by any lawful means and this view has been accepted by this court in Bishan Singh v. Khazan Singh MANU/SC/0119/1958 : [1959]1SCR878 where Subba Rao, J., observed :-

"The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place".

Supreme Court of India

Radhakisan Laxminarayan ... vs Shridhar Ramchandra Alshi And ... on 23 April, 1960

Equivalent citations: 1960 AIR 1368, 1961 SCR (1) 248

Author: K L.

Bench: Sinha, Bhuvneshwar P.(Cj), Kapur, J.L., Gajendragadkar, P.B., Subbarao, K., Wanchoo, K.N.

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