RSA-671-1991 v. Shiv Parshad (since deceased) through LR

Judgment

1. The present Regular Second Appeal has been filed by the appellant– The present Regular Second Appeal has been filed by the appellant The present Regular Second Appeal has been filed by the appellant The present Regular Second Appeal has been filed by the appellant defendant (since deceased), through his legal representatives, against the defendant (since deceased), through his legal representatives, against the defendant (since deceased), through his legal representatives, against the defendant (since deceased), through his legal representatives, against the concurrent findings of the Courts below. The learned Trial Court, vide judgment concurrent findings of the Courts below. The learned Trial Court, vide judgment concurrent findings of the Courts below.

The learned Trial Court, vide judgment concurrent findings of the Courts below. The learned Trial Court, vide judgment and decree dated 9.11.1987, decreed the suit filed by the plaintiff and decree dated 9.11.1987, decreed respondent. The the suit filed by the plaintiff–respondent. The said judgment and decree were affirmed by the learned Lower Appellate Court said judgment and decree were affirmed by the learned Lower Appellate Court said judgment and decree were affirmed by the learned Lower Appellate Court said judgment and decree were affirmed by the learned Lower Appellate Court vide judgment and decree dated 16.11.1990. vide judgment and decree dated 16.11.1990. Brief Facts 2.

Briefly stated, the plaintiff filed a suit for possession by way of pre- Briefly stated, the plaintiff filed a suit for possession by way of pre Briefly stated, the plaintiff filed a suit for possession by way of pre Briefly stated, the plaintiff filed a suit for possession by way of pre emption under Section 22 of the Hindu Succession Act, 1956, in respect of a share emption under Section 22 of the Hindu Succession Act, 1956, in respect of a share emption under Section 22 of the Hindu Succession Act, 1956, in respect of a share emption under Section 22 of the Hindu Succession Act, 1956, in respect of a share 1634/III, situated at Ambala City. It in House No. 4291/2 (old), new No. AMC-1634/III, situated at Ambala City. It 1634/III, situated at Ambala City. It in House No. 4291/2 (old), new No. AMC was pleaded that the property originally belonged to Tula Ram, who had executed was pleaded that the property originally belonged to Tula Ram, who had executed was pleaded that the property originally belonged to Tula Ram, who had executed was pleaded that the property originally belonged to Tula Ram, who had executed a Will dated 13.

1.1955 bequeathing the disputed house in favour of his wife Purni ill dated 13.01.1955 bequeathing the disputed house in favour of his wife Purni 1.1955 bequeathing the disputed house in favour of his wife Purni TRIPTI SAINI 2026.01.09 11:24 I attest to the accuracy and integrity of this document RSA-671-1991 (O&M) -2- - Devi. Upon the death of Tula Ram, Purni Devi became the full and absolute owner Devi. Upon the death of Tula Ram, Purni Devi became the full and absolute owner Devi. Upon the death of Tula Ram, Purni Devi became the full and absolute owner Devi. Upon the death of Tula Ram, Purni Devi became the full and absolute owner of the disputed house. of the disputed house.

6.1979, leaving It was further pleaded that Purni Devi died on 01.06.1979, leaving It was further pleaded that Purni Devi died on It was further pleaded that Purni Devi died on l heirs, namely the plaintiff, Gian Devi, and the branches of behind her legal heirs, namely the plaintiff, Gian Devi, and the branches of l heirs, namely the plaintiff, Gian Devi, and the branches of behind her lega Lachhmi Chand and Sohan Lal, as detailed in the pedigree table. According to the Lachhmi Chand and Sohan Lal, as detailed in the pedigree table. According to the Lachhmi Chand and Sohan Lal, as detailed in the pedigree table. According to the Lachhmi Chand and Sohan Lal, as detailed in the pedigree table. According to the plaintiff, all the heirs inherited the disputed house in equal shares, i.e. 1/4th share plaintiff, all the heirs inherited the disputed house in equal shares, i.e. 1/4th share plaintiff, all the heirs inherited the disputed house in equal shares, i.e. 1/4th share plaintiff, all the heirs inherited the disputed house in equal shares, i.e. 1/4th share ohan Lal had predeceased, and their respective legal each. Lachhmi Chand and Sohan Lal had predeceased, and their respective legal ohan Lal had predeceased, and their respective legal each. Lachhmi Chand and S heirs stepped into their shoes. heirs stepped into their shoes.

4. The plaintiff asserted that he was in possession of the entire disputed The plaintiff asserted that he was in possession of the entire disputed The plaintiff asserted that he was in possession of the entire disputed The plaintiff asserted that he was in possession of the entire disputed house. It was pleaded that the legal heirs of Sohan Lal, namely Subhash Chand, house. It was pleaded that the legal heirs of Sohan Lal, namely Subhash Chand, house. It was pleaded that the legal heirs of Sohan Lal, namely Subhash Chand, house. It was pleaded that the legal heirs of Sohan Lal, namely Subhash Chand, y Kumari, Lakhbir Chand and Vidya Wati, sold what was Brij Mohan, Vijay Kumari, Lakhbir Chand and Vidya Wati, sold what was y Kumari, Lakhbir Chand and Vidya Wati, sold what was Brij Mohan, Vija described as 1/3rd share in the disputed house to the defendant vide registered sale described as 1/3rd share in the disputed house to the defendant vide registered sale described as 1/3rd share in the disputed house to the defendant vide registered sale described as 1/3rd share in the disputed house to the defendant vide registered sale , though in fact they were deed dated 10.8.1981 for a consideration of Rs. 8,000/-, though in fact they were deed dated 10.8.1981 for a consideration of Rs. 8,000/ deed dated 10.8.1981 for a consideration of Rs. 8,000/ s alleged that the sale price mentioned in the sale entitled only to 1/4th share. It was alleged that the sale price mentioned in the sale s alleged that the sale price mentioned in the sale entitled only to 1/4th share. It wa emption and that deed was exaggerated in order to defeat the plaintiff’s right of pre-emption and that deed was exaggerated in order to defeat the plaintiff’s right of pre deed was exaggerated in order to defeat the plaintiff’s right of pre the real market value of the share sold was not more than Rs. 4,000/-. the real market value of the share sold was not more than Rs. 4,000/ the real market value of the share sold was not more than Rs. 4,000/

5. he had a preferential right The plaintiff claimed that being a co-heir, he had a preferential right The plaintiff claimed that being a co The plaintiff claimed that being a co emption under Section 22 of the Hindu Succession Act. It was pleaded that of pre-emption under Section 22 of the Hindu Succession Act. It was pleaded that emption under Section 22 of the Hindu Succession Act. It was pleaded that emption under Section 22 of the Hindu Succession Act. It was pleaded that no notice of the intended sale was ever given to the plaintiff by the vendors. On no notice of the intended sale was ever given to the plaintiff by the vendors. On no notice of the intended sale was ever given to the plaintiff by the vendors. On no notice of the intended sale was ever given to the plaintiff by the vendors. On defendant to coming to know of the impugned sale, the plaintiff requested the defendant to coming to know of the impugned sale, the plaintiff requested the coming to know of the impugned sale, the plaintiff requested the emption, but the defendant refused to do so, necessitating the admit his right of pre-emption, but the defendant refused to do so, necessitating the emption, but the defendant refused to do so, necessitating the admit his right of pre filing of the suit. filing of the suit.

6. Upon notice, the defendant filed a written statement admitting the Upon notice, the defendant filed a written statement admitting the Upon notice, the defendant filed a written statement admitting the Upon notice, the defendant filed a written statement admitting the he defendant factum of sale and the original ownership of Tula Ram. However, the defendant factum of sale and the original ownership of Tula Ram. However, t factum of sale and the original ownership of Tula Ram. However, t denied the plaintiff’s claim of equal shares and asserted that the vendors had 1/3rd denied the plaintiff’s claim of equal shares and asserted that the vendors had 1/3rd denied the plaintiff’s claim of equal shares and asserted that the vendors had 1/3rd denied the plaintiff’s claim of equal shares and asserted that the vendors had 1/3rd TRIPTI SAINI 2026.01.09 11:24 I attest to the accuracy and integrity of this document RSA-671-1991 (O&M) -3- - share in the disputed house and were competent to sell the same. It was pleaded share in the disputed house and were competent to sell the same. It was pleaded share in the disputed house and were competent to sell the same. It was pleaded share in the disputed house and were competent to sell the same. It was pleaded and, that the vendors had acquired the share by survivorship and not by inheritance and, that the vendors had acquired the share by survivorship and not by inheritance that the vendors had acquired the share by survivorship and not by inheritance therefore, Section 22 of the Hindu Succession Act was not applicable. therefore, Section 22 of the Hindu Succession Act was not applicable. therefore, Section 22 of the Hindu Succession Act was not applicable.

7. The defendant further pleaded that the sale consideration of The defendant further pleaded that the sale consideration of The defendant further pleaded that the sale consideration of The defendant further pleaded that the sale consideration of was genuine, was fixed in good faith and was actually paid. It was also Rs.8,000/- was genuine, was fixed in good faith and was actually paid. It was also was genuine, was fixed in good faith and was actually paid. It was also was genuine, was fixed in good faith and was actually paid. It was also emption e disputed house was urban property and no right of pre-emption e disputed house was urban property and no right of pre pleaded that the disputed house was urban property and no right of pre was available. The defendant asserted that the plaintiff had knowledge of the sale was available. The defendant asserted that the plaintiff had knowledge of the sale was available. The defendant asserted that the plaintiff had knowledge of the sale was available. The defendant asserted that the plaintiff had knowledge of the sale and had consented to the same, and that the plaintiff had earlier declined to and had consented to the same, and that the plaintiff had earlier declined to and had consented to the same, and that the plaintiff had earlier declined to and had consented to the same, and that the plaintiff had earlier declined to . It was also pleaded that there was no custom of purchase the share when offered. It was also pleaded that there was no custom of . It was also pleaded that there was no custom of purchase the share when offered emption in Ambala City and that the suit was false, vexatious and filed to pre-emption in Ambala City and that the suit was false, vexatious and filed to emption in Ambala City and that the suit was false, vexatious and filed to emption in Ambala City and that the suit was false, vexatious and filed to joinder of necessary harass the defendant. Objections regarding locus standi, non-joinder of necessary harass the defendant. Objections regarding locus standi, non harass the defendant. Objections regarding locus standi, non also raised. parties and maintainability of the suit were also raised. parties and maintainability of the suit were

8. By way of amendment, the defendant further pleaded that in the event By way of amendment, the defendant further pleaded that in the event By way of amendment, the defendant further pleaded that in the event By way of amendment, the defendant further pleaded that in the event of a decree, he was entitled to reimbursement of stamp and registration charges of a decree, he was entitled to reimbursement of stamp and registration charges of a decree, he was entitled to reimbursement of stamp and registration charges of a decree, he was entitled to reimbursement of stamp and registration charges empt the besides the sale price, and reiterated that the plaintiff had no right to pre-empt the besides the sale price, and reiterated that the plaintiff had no right to pre besides the sale price, and reiterated that the plaintiff had no right to pre impugned sale.

9. The plaintiff filed a replication denying the pleas raised by the The plaintiff filed a replication denying the pleas raised by the The plaintiff filed a replication denying the pleas raised by the The plaintiff filed a replication denying the pleas raised by the defendant and reaffirmed the averments made in the plaint. defendant and reaffirmed the averments made in the plaint. defendant and reaffirmed the averments made in the plaint.

10. On the basis of the pleadings of the parties, the learned Trial Court On the basis of the pleadings of the parties, the learned Trial Court On the basis of the pleadings of the parties, the learned Trial Court On the basis of the pleadings of the parties, the learned Trial Court framed the following issues: framed the following issues:

1. Whether the plaintiff has got a superior right to pre empt the the plaintiff has got a superior right to pre-empt the sale in question? OPP sale in question? OPP

2. Whether the sale price was fixed in good faith or was actually Whether the sale price was fixed in good faith or was actually Whether the sale price was fixed in good faith or was actually paid? OPD paid? OPD TRIPTI SAINI 2026.01.09 11:24 I attest to the accuracy and integrity of this document RSA-671-1991 (O&M) -4- -

3. If Issue No. 2 is not proved, what was the market value of the If Issue No. 2 is not proved, what was the market value of the If Issue No. 2 is not proved, what was the market value of the suit land at the time of sale? OP suit land at the time of sale? OP

4. Whether the suit under Section 22 of the Hindu Succession Act Whether the suit under Section 22 of the Hindu Succession Act Whether the suit under Section 22 of the Hindu Succession Act is maintainable? OPP is maintainable? OPP

5. Whether the plaintiff has locus standi to file this suit? OPP Whether the plaintiff has locus standi to file this suit? OPP

6. Whether the plaintiff has waived his right of pre emption? OPD Whether the plaintiff has waived his right of pre-emption? OPD

7. Whether the vendors had only 1/4th share in the suit property Whether the vendors had only 1/4th share in the suit property and were not competent to transfer 1/3rd share, if so, to what effect? and were not competent to transfer 1/3rd share, if so, to what effect? and were not competent to transfer 1/3rd share, if so, to what effect? and were not competent to transfer 1/3rd share, if so, to what effect? OPD OPD

8. Whether the suit is bad for non joinder of necessary parties? Whether the suit is bad for non-joinder of necessary parties? OPD OPD

9. Relief. mentioned issues, the trial further framed the After framing the afore-mentioned issues, the trial further framed the mentioned issues, the trial further framed the After framing the afore following additional i dditional issue:-

1. defendant is entitled to stamp and Whether the vendee-defendant is entitled to stamp and defendant is entitled to stamp and registration charges, if so, to what amount? OPD registration charges, if so, to what amount? OPD registration charges, if so, to what amount? OPD Findings of the trial Court Findings of the trial Court

11. The learned Trial Court, after appreciating the pleadings and evidence The learned Trial Court, after appreciating the pleadings and evidence The learned Trial Court, after appreciating the pleadings and evidence The learned Trial Court, after appreciating the pleadings and evidence at the relationship between the plaintiff and the vendors was not on record, held that the relationship between the plaintiff and the vendors was not at the relationship between the plaintiff and the vendors was not on record, held th in dispute and stood duly established. It was found that Tula Ram was the original in dispute and stood duly established. It was found that Tula Ram was the original in dispute and stood duly established. It was found that Tula Ram was the original in dispute and stood duly established. It was found that Tula Ram was the original owner of the disputed house and that he had validly executed a will dated owner of the disputed house and that he had validly executed a will dated owner of the disputed house and that he had validly executed a will dated owner of the disputed house and that he had validly executed a will dated

13.01.1955 bequeathing the proper

1.1955 bequeathing the property in favour of his wife Purni Devi, which ty in favour of his wife Purni Devi, which W Will was duly proved through attesting and marginal witnesses and remained was duly proved through attesting and marginal witnesses and remained was duly proved through attesting and marginal witnesses and remained was duly proved through attesting and marginal witnesses and remained unrebutted. Upon the death of Purni Devi in the year 1979, the property devolved unrebutted. Upon the death of Purni Devi in the year 1979, the property devolved unrebutted. Upon the death of Purni Devi in the year 1979, the property devolved unrebutted. Upon the death of Purni Devi in the year 1979, the property devolved ches of Lachhmi Chand by inheritance upon the plaintiff, Gian Devi and the branches of Lachhmi Chand by inheritance upon the plaintiff, Gian Devi and the bran by inheritance upon the plaintiff, Gian Devi and the bran TRIPTI SAINI 2026.01.09 11:24 I attest to the accuracy and integrity of this document RSA-671-1991 (O&M) -5- - I heirs under the Hindu Succession Act. The and Sohan Lal, all falling in Class-I heirs under the Hindu Succession Act. The I heirs under the Hindu Succession Act. The and Sohan Lal, all falling in Class Court rejected the plea that the vendors had inherited the property by survivorship Court rejected the plea that the vendors had inherited the property by survivorship Court rejected the plea that the vendors had inherited the property by survivorship Court rejected the plea that the vendors had inherited the property by survivorship and held that they derived their share by succession from Purni Devi, who herself and held that they derived their share by succession from Purni Devi, who herself and held that they derived their share by succession from Purni Devi, who herself and held that they derived their share by succession from Purni Devi, who herself was further held that Sohan Lal had had inherited the property under the Will. It was further held that Sohan Lal had was further held that Sohan Lal had had inherited the property under the predeceased Purni Devi, and consequently the vendors inherited directly from predeceased Purni Devi, and consequently the vendors inherited directly from predeceased Purni Devi, and consequently the vendors inherited directly from predeceased Purni Devi, and consequently the vendors inherited directly from heir with the Purni Devi and not through Sohan Lal, rendering the plaintiff a co-heir with the Purni Devi and not through Sohan Lal, rendering the plaintiff a co Purni Devi and not through Sohan Lal, rendering the plaintiff a co vendors.

12. heirship, the The Trial Court further held that in view of the co-heirship, the The Trial Court further held that in view of the The Trial Court further held that in view of the plaintiff had a preferential right to acquire the share sold under Section 22 of the plaintiff had a preferential right to acquire the share sold under Section 22 of the plaintiff had a preferential right to acquire the share sold under Section 22 of the plaintiff had a preferential right to acquire the share sold under Section 22 of the Hindu Succession Act and that such right could be enforced even after completion Hindu Succession Act and that such right could be enforced even after completion Hindu Succession Act and that such right could be enforced even after completion Hindu Succession Act and that such right could be enforced even after completion sale had been of the sale by way of a civil suit. The plea that notice of the intended sale had been of the sale by way of a civil suit. The plea that notice of the intended of the sale by way of a civil suit. The plea that notice of the intended given to the plaintiff or that the sale was effected with his consent or knowledge given to the plaintiff or that the sale was effected with his consent or knowledge given to the plaintiff or that the sale was effected with his consent or knowledge given to the plaintiff or that the sale was effected with his consent or knowledge was rejected for want of evidence. The contention that the suit was not was rejected for want of evidence. The contention that the suit was not was rejected for want of evidence. The contention that the suit was not was rejected for want of evidence. The contention that the suit was not maintainable and that only an application could lie under Section 22 was also maintainable and that only an application could lie under Section 22 was also maintainable and that only an application could lie under Section 22 was also maintainable and that only an application could lie under Section 22 was also by relying upon judicial precedents holding that enforcement of the repelled by relying upon judicial precedents holding that enforcement of the by relying upon judicial precedents holding that enforcement of the by relying upon judicial precedents holding that enforcement of the preferential right after sale lies only through a civil suit. preferential right after sale lies only through a civil suit. preferential right after sale lies only through a civil suit.

13. The Trial Court further found that the plaintiff had not waived his The Trial Court further found that the plaintiff had not waived his The Trial Court further found that the plaintiff had not waived his The Trial Court further found that the plaintiff had not waived his to show any abandonment or emption and that there was no material to show any abandonment or emption and that there was no material right of pre-emption and that there was no material joinder acquiescence on his part. It was also held that the suit was not bad for non-joinder acquiescence on his part. It was also held that the suit was not bad for non acquiescence on his part. It was also held that the suit was not bad for non heirs were not necessary parties to a suit for of parties, as the vendors or other co-heirs were not necessary parties to a suit for heirs were not necessary parties to a suit for of parties, as the vendors or other co ccepted the evidence of emption. On the question of consideration, the Court accepted the evidence of emption. On the question of consideration, the Court a pre-emption. On the question of consideration, the Court a ntire sale consideration the defendant and the attesting witnesses and held that the entire sale consideration the defendant and the attesting witnesses and held that the e the defendant and the attesting witnesses and held that the e was actually paid and fixed in good faith, rendering the issue of of Rs.8,000/- was actually paid and fixed in good faith, rendering the issue of was actually paid and fixed in good faith, rendering the issue of was actually paid and fixed in good faith, rendering the issue of market value market value market value market value redundant. The Court, however, allowed redundant. The Court, however, allowed redundant. The Court, however, allowed redundant. The Court, however, allowed the defendant the defendant the defendant the defendant reimbursement of stamp and registration expenses incurred by him. reimbursement of stamp and registration expenses incurred by him. reimbursement of stamp and registration expenses incurred by him. TRIPTI SAINI 2026.01.09 11:24 I attest to the accuracy and integrity of this document RSA-671-1991 (O&M) -6- -

14. On the cumulative appreciation of evidence and law, the learned Trial On the cumulative appreciation of evidence and law, the learned Trial On the cumulative appreciation of evidence and law, the learned Trial On the cumulative appreciation of evidence and law, the learned Trial Court concluded that the plaintiff had a superior and enforceable right of pre- Court concluded that the plaintiff had a superior and enforceable right of pre Court concluded that the plaintiff had a superior and enforceable right of pre Court concluded that the plaintiff had a superior and enforceable right of pre u Succession Act, that the suit was emption under Section 22 of the Hindu Succession Act, that the suit was u Succession Act, that the suit was emption under Section 22 of the Hind maintainable, and consequently decreed the suit for possession by way of pre- maintainable, and consequently decreed the suit for possession by way of pre maintainable, and consequently decreed the suit for possession by way of pre maintainable, and consequently decreed the suit for possession by way of pre emption of the share sold, subject to payment of the sale consideration along with emption of the share sold, subject to payment of the sale emption of the share sold, subject to payment of the sale charges, the expenses allowed to the defendant towards stamp and registration charges, the expenses allowed to the defendant towards stamp and regi the expenses allowed to the defendant towards stamp and regi . It was further directed that the plaintiff shall pay or aggregating to Rs.9,300/-. It was further directed that the plaintiff shall pay or . It was further directed that the plaintiff shall pay or aggregating to Rs. deposit the said pre-emption amount, after adjusting the sum of Rs. deposit the said pre already after adjusting the sum of Rs.1,600/- already ismissed deposited, on or before 17.12.1987, failing which the suit would stand dismissed deposited, on or before 17.12.1987, failing which the suit would stand d deposited, on or before 17.12.1987, failing which the suit would stand d with costs. Findings of the Lower Appellate Court Findings of the Lower Appellate Court

15. Sham Lal filed the appeal against the Feeling aggrieved, the defendant-Sham Lal filed the appeal against the Sham Lal filed the appeal against the Feeling aggrieved, the defendant The learned judgment and decree dated 09.11.1987 filed by the learned trial Court. The learned judgment and decree dated 09.11.1987 filed by the learned trial Court. judgment and decree dated 09.11.1987 filed by the learned trial Court. ating the pleadings, evidence and the Lower Appellate Court, after reappreciating the pleadings, evidence and the ating the pleadings, evidence and the Lower Appellate Court, after reappreci findings recorded by the Trial Court, concurred with the conclusions arrived at on findings recorded by the Trial Court, concurred with the conclusions arrived at on findings recorded by the Trial Court, concurred with the conclusions arrived at on findings recorded by the Trial Court, concurred with the conclusions arrived at on emption and the the core issues relating to the plaintiff’s right of pre-emption and the the core issues relating to the plaintiff’s right of pre the core issues relating to the plaintiff’s right of pre ession Act. The maintainability of the suit under Section 22 of the Hindu Succession Act. The maintainability of the suit under Section 22 of the Hindu Succ maintainability of the suit under Section 22 of the Hindu Succ appellate court noticed that the principal challenge raised by the defendant was appellate court noticed that the principal challenge raised by the defendant was appellate court noticed that the principal challenge raised by the defendant was appellate court noticed that the principal challenge raised by the defendant was Atam Parkash v. State founded on the judgment of the Hon’ble Supreme Court in Atam Parkash v. State founded on the judgment of the Hon’ble Supreme Court in founded on the judgment of the Hon’ble Supreme Court in of Haryana (1986 1986) 2 SCC 249, contending that the right of pre emption based on , contending that the right of pre-emption based on relationship had been declared ultra vires. The Lower Appellate Court held that the relationship had been declared ultra vires. The Lower Appellate Court held that the relationship had been declared ultra vires. The Lower Appellate Court held that the relationship had been declared ultra vires. The Lower Appellate Court held that the decision in Atam Parkash did not dilute or override the statutory Atam Parkash’s case (supra) did not dilute or override the statutory did not dilute or override the statutory preferential right conferred under Section 22 of the Act upon co preferential right conferred under Sect heirs. It was ion 22 of the Act upon co-heirs. It was further observed that no other substantive argument had been advanced to dislodge further observed that no other substantive argument had been advanced to dislodge further observed that no other substantive argument had been advanced to dislodge further observed that no other substantive argument had been advanced to dislodge the findings of the Trial Court. Consequently, the appellate court affirmed the the findings of the Trial Court. Consequently, the appellate court affirmed the the findings of the Trial Court. Consequently, the appellate court affirmed the the findings of the Trial Court. Consequently, the appellate court affirmed the TRIPTI SAINI 2026.01.09 11:24 I attest to the accuracy and integrity of this document RSA-671-1991 (O&M) -7- - ree passed by the Trial findings recorded on Issues No.1 and 4, upheld the decree passed by the Trial findings recorded on Issues No.1 and 4, upheld the dec findings recorded on Issues No.1 and 4, upheld the dec Court, and dismissed the appeal as being devoid of merit. Court, and dismissed the appeal as being devoid of merit. Court, and dismissed the appeal as being devoid of merit.

16. Aggrieved against the concurrent Aggrieved against the concurrent Aggrieved against the concurrent Aggrieved against the concurrent judgments and decrees, judgments and decrees, judgments and decrees, judgments and decrees, appellant has approached this Court by way of the present Regular Second Appeal. appellant has approached this Court by way of the present Regular Second Appeal. appellant has approached this Court by way of the present Regular Second Appeal. appellant has approached this Court by way of the present Regular Second Appeal. counsel for the appellant Submissions of learned counsel for the appellant Submissions of learned

17. Learned counsel for the appellant– Learned counsel for the appellant defendant assailed the concurrent –defendant assailed the concurrent judgments and decrees passed by the courts below on multiple grounds. It was judgments and decrees passed by the courts below on multiple grounds. It was judgments and decrees passed by the courts below on multiple grounds. It was judgments and decrees passed by the courts below on multiple grounds. It was contended that the courts below committed a grave error in holding that Tula Ram contended that the courts below committed a grave error in holding that Tula Ram contended that the courts below committed a grave error in holding that Tula Ram contended that the courts below committed a grave error in holding that Tula Ram ill in favour of Smt. Purni Devi and that the property had executed a valid Will in favour of Smt. Purni Devi and that the property ill in favour of Smt. Purni Devi and that the property had executed a valid devolved upon her by testamentary succession. According to learned counsel, the devolved upon her by testamentary succession. According to learned counsel, the devolved upon her by testamentary succession. According to learned counsel, the devolved upon her by testamentary succession. According to learned counsel, the said finding is erroneous and contrary to the evidence on record. said finding is erroneous and contrary to the evidence on record. said finding is erroneous and contrary to the evidence on record.

18. ourts below wrongly held that the It was further argued that the Courts below wrongly held that the ourts below wrongly held that the It was further argued that heirs with the plaintiff. Learned counsel submitted that the vendors were co-heirs with the plaintiff. Learned counsel submitted that the heirs with the plaintiff. Learned counsel submitted that the vendors were co property in dispute was inherited by the vendors from their father and not from property in dispute was inherited by the vendors from their father and not from property in dispute was inherited by the vendors from their father and not from property in dispute was inherited by the vendors from their father and not from the plaintiff at all. On Purni Devi, and therefore the vendors were not co-heirs with the plaintiff at all. On Purni Devi, and therefore the vendors were not co Purni Devi, and therefore the vendors were not co this premise, it was contended that the plaintiff had no preferential right of pre- this premise, it was contended that the plaintiff had no preferential right of pre this premise, it was contended that the plaintiff had no preferential right of pre this premise, it was contended that the plaintiff had no preferential right of pre emption and the findings recorded on Issues No.1 and 4 were unsustainable. emption and the findings recorded on Issues No.1 and 4 were unsustainable. emption and the findings recorded on Issues No.1 and 4 were unsustainable.

19. defendant further contended that Learned counsel for the appellant–defendant further contended that Learned counsel for the appellant Learned counsel for the appellant ourts below erred in holding that no notice of the intended sale was given to the Courts below erred in holding that no notice of the intended sale was given to ourts below erred in holding that no notice of the intended sale was given to ourts below erred in holding that no notice of the intended sale was given to the plaintiff. It was argued that prior to execution of the sale deed, the vendors had the plaintiff. It was argued that prior to execution of the sale deed, the vendors had the plaintiff. It was argued that prior to execution of the sale deed, the vendors had the plaintiff. It was argued that prior to execution of the sale deed, the vendors had duly informed the plaintiff of their intention to sell their share in the property and duly informed the plaintiff of their intention to sell their share in the property and duly informed the plaintiff of their intention to sell their share in the property and duly informed the plaintiff of their intention to sell their share in the property and had offered the same to him. According to learned counsel, the plaintiff, despite had offered the same to him. According to learned counsel, the plaintiff, despite had offered the same to him. According to learned counsel, the plaintiff, despite had offered the same to him. According to learned counsel, the plaintiff, despite having knowledge of the proposed sale, declined to purchase the property and having knowledge of the proposed sale, declined to purchase the property and having knowledge of the proposed sale, declined to purchase the property and having knowledge of the proposed sale, declined to purchase the property and emption. It was thereby consciously chose not to exercise his right of pre-emption. It was thereby consciously chose not to exercise his right of pre thereby consciously chose not to exercise his right of pre he plaintiff had refused to purchase the share when offered, he submitted that once the plaintiff had refused to purchase the share when offered, he he plaintiff had refused to purchase the share when offered, he submitted that once t TRIPTI SAINI 2026.01.09 11:24 I attest to the accuracy and integrity of this document RSA-671-1991 (O&M) -8- - could not subsequently invoke the provisions of Section 22 of the Hindu could not subsequently invoke the provisions of Section 22 of the Hindu could not subsequently invoke the provisions of Section 22 of the Hindu could not subsequently invoke the provisions of Section 22 of the Hindu Succession Act to challenge the sale. Learned counsel thus urged that the plaintiff Succession Act to challenge the sale. Learned counsel thus urged that the plaintiff Succession Act to challenge the sale. Learned counsel thus urged that the plaintiff Succession Act to challenge the sale. Learned counsel thus urged that the plaintiff had, by his conduct, waived his preferential right, and the suit for pre had, by his conduct, waived his pref emption erential right, and the suit for pre-emption ought to have been dismissed on this ground alone. ought to have been dismissed on this ground alone. ought to have been dismissed on this ground alone. Submissions of learned counsel for the respondent Submissions of learned counsel for the respondent Submissions of learned counsel for the respondent

20. Per contra, learned counsel for the respondent Per contra plaintiff submitted that , learned counsel for the respondent–plaintiff submitted that the appellant proceeds on an incorrect understanding the entire challenge raised by the appellant proceeds on an incorrect understanding the appellant proceeds on an incorrect understanding the entire challenge raised by of facts and law. It was argued that the finding regarding execution of a valid will of facts and law. It was argued that the finding regarding execution of a valid will of facts and law. It was argued that the finding regarding execution of a valid will of facts and law. It was argued that the finding regarding execution of a valid will by Tula Ram in favour of Purni Devi is based on cogent evidence and has attained by Tula Ram in favour of Purni Devi is based on cogent evidence and has attained by Tula Ram in favour of Purni Devi is based on cogent evidence and has attained by Tula Ram in favour of Purni Devi is based on cogent evidence and has attained i, the property devolved by succession upon finality. Upon the death of Purni Devi, the property devolved by succession upon i, the property devolved by succession upon finality. Upon the death of Purni Dev I heirs, including the plaintiff and the vendors, thereby establishing their her Class-I heirs, including the plaintiff and the vendors, thereby establishing their I heirs, including the plaintiff and the vendors, thereby establishing their I heirs, including the plaintiff and the vendors, thereby establishing their heirs. status as co-heirs.

21. Learned counsel further submitted that the plea of inheritance by Learned counsel further submitted that the plea of inheritance by Learned counsel further submitted that the plea of inheritance by Learned counsel further submitted that the plea of inheritance by ourts below, as Purni Devi was the survivorship has been rightly rejected by the Courts below, as Purni Devi was the ourts below, as Purni Devi was the survivorship has been rightly reje last full owner of the property and succession opened only after her death. In such last full owner of the property and succession opened only after her death. In such last full owner of the property and succession opened only after her death. In such last full owner of the property and succession opened only after her death. In such circumstances, Section 22 of the Hindu Succession Act squarely applies and circumstances, Section 22 of the Hindu Succession Act squarely applies and circumstances, Section 22 of the Hindu Succession Act squarely applies and circumstances, Section 22 of the Hindu Succession Act squarely applies and laintiff. confers a statutory preferential right upon the plaintiff. confers a statutory preferential right upon the p

22. On the issue of notice, it was submitted that no notice of the intended On the issue of notice, it was submitted that no notice of the intended On the issue of notice, it was submitted that no notice of the intended On the issue of notice, it was submitted that no notice of the intended sale was ever given to the plaintiff. The burden to prove such notice lay entirely sale was ever given to the plaintiff. The burden to prove such notice lay entirely sale was ever given to the plaintiff. The burden to prove such notice lay entirely sale was ever given to the plaintiff. The burden to prove such notice lay entirely upon the defendant, who sought to defeat a statutory right. Except for a bald oral upon the defendant, who sought to defeat a statutory right. Except for a bald oral upon the defendant, who sought to defeat a statutory right. Except for a bald oral upon the defendant, who sought to defeat a statutory right. Except for a bald oral tement of one of the vendors, there is no evidence on record to show that the statement of one of the vendors, there is no evidence on record to show that the tement of one of the vendors, there is no evidence on record to show that the tement of one of the vendors, there is no evidence on record to show that the plaintiff was informed of the proposed sale or that he refused to purchase the plaintiff was informed of the proposed sale or that he refused to purchase the plaintiff was informed of the proposed sale or that he refused to purchase the plaintiff was informed of the proposed sale or that he refused to purchase the property. It was further contended that there is not even a scintilla of evidence to property. It was further contended that there is not even a scintilla of evidence to property. It was further contended that there is not even a scintilla of evidence to property. It was further contended that there is not even a scintilla of evidence to er, particularly when the property admittedly remained joint and establish waiver, particularly when the property admittedly remained joint and er, particularly when the property admittedly remained joint and er, particularly when the property admittedly remained joint and unpartitioned and the plaintiff continued to hold one-fourth share therein. unpartitioned and the plaintiff continued to hold one unpartitioned and the plaintiff continued to hold one TRIPTI SAINI 2026.01.09 11:24 I attest to the accuracy and integrity of this document RSA-671-1991 (O&M) Findings of this Court Findings of this Court -9- -

23. I have heard learned counsel for the parties and have gone through the I have heard learned counsel for the parties and have gone through the I have heard learned counsel for the parties and have gone through the I have heard learned counsel for the parties and have gone through the decrees passed by both the courts below as well as the record judgments and decrees passed by both the courts below as well as the record decrees passed by both the courts below as well as the record judgments and placed on file.

24. The principal questions which arise for consideration are: (i) whether The principal questions which arise for consideration are: (i) whether The principal questions which arise for consideration are: (i) whether The principal questions which arise for consideration are: (i) whether the vendors inherited the property by survivorship or by succession so as to attract the vendors inherited the property by survivorship or by succession so as to attract the vendors inherited the property by survivorship or by succession so as to attract the vendors inherited the property by survivorship or by succession so as to attract Section 22 of the Hindu Succession Act; (ii) whether the plaintiff, the provisions of Section 22 of the Hindu Succession Act; (ii) whether the plaintiff, Section 22 of the Hindu Succession Act; (ii) whether the plaintiff, the provisions of heir, had a preferential right to purchase the share sold; and (iii) whether being a co-heir, had a preferential right to purchase the share sold; and (iii) whether heir, had a preferential right to purchase the share sold; and (iii) whether heir, had a preferential right to purchase the share sold; and (iii) whether any notice of the intended sale was given to the plaintiff so as to defeat such right. any notice of the intended sale was given to the plaintiff so as to defeat such right. any notice of the intended sale was given to the plaintiff so as to defeat such right. any notice of the intended sale was given to the plaintiff so as to defeat such right.

25. tentions raised on behalf of the appellant have been duly The contentions raised on behalf of the appellant have been duly tentions raised on behalf of the appellant have been duly The con The plea that the vendors inherited the property by survivorship is considered. The plea that the vendors inherited the property by survivorship is The plea that the vendors inherited the property by survivorship is The plea that the vendors inherited the property by survivorship is untenable in view of the concurrent finding that Purni Devi became the absolute untenable in view of the concurrent finding that Purni Devi became the absolute untenable in view of the concurrent finding that Purni Devi became the absolute untenable in view of the concurrent finding that Purni Devi became the absolute ll executed by Tula Ram. Upon her death, owner of the property under a valid will executed by Tula Ram. Upon her death, ll executed by Tula Ram. Upon her death, owner of the property under a valid wi the property devolved by succession upon her heirs. Once succession opened after the property devolved by succession upon her heirs. Once succession opened after the property devolved by succession upon her heirs. Once succession opened after the property devolved by succession upon her heirs. Once succession opened after the death of a female owner, the concept of survivorship had no application. the death of a female owner, the concept of survivorship had no application. the death of a female owner, the concept of survivorship had no application. the death of a female owner, the concept of survivorship had no application. itance and not by Consequently, the vendors derived their interest by inheritance and not by Consequently, the vendors derived their interest by inher Consequently, the vendors derived their interest by inher survivorship, rendering Section 22 of the Hindu Succession Act fully applicable. survivorship, rendering Section 22 of the Hindu Succession Act fully applicable. survivorship, rendering Section 22 of the Hindu Succession Act fully applicable. survivorship, rendering Section 22 of the Hindu Succession Act fully applicable.

26. The challenge to the applicability or validity of Section 22 is equally The challenge to the applicability or validity of Section 22 is equally The challenge to the applicability or validity of Section 22 is equally The challenge to the applicability or validity of Section 22 is equally heir under devoid of merit. The statutory preferential right conferred upon a co-heir under devoid of merit. The statutory preferential right conferred upon a co devoid of merit. The statutory preferential right conferred upon a co based pre- Section 22 stands on a different footing from customary or relationship-based pre Section 22 stands on a different footing from customary or relationship Section 22 stands on a different footing from customary or relationship emption.

27. As regards notice, the burden was squarely upon the defendant to As regards notice, the burden was squarely upon the defendant to As regards notice, the burden was squarely upon the defendant to As regards notice, the burden was squarely upon the defendant to establish that the plaintiff had been informed of the intended sale and had declined establish that the plaintiff had been informed of the intended sale and had declined establish that the plaintiff had been informed of the intended sale and had declined establish that the plaintiff had been informed of the intended sale and had declined se his right. Mere oral assertion of one of the vendors, unsupported by any to exercise his right. Mere oral assertion of one of the vendors, unsupported by any se his right. Mere oral assertion of one of the vendors, unsupported by any se his right. Mere oral assertion of one of the vendors, unsupported by any documentary or independent evidence, is insufficient to discharge this burden. documentary or independent evidence, is insufficient to discharge this burden. documentary or independent evidence, is insufficient to discharge this burden. TRIPTI SAINI 2026.01.09 11:24 I attest to the accuracy and integrity of this document RSA-671-1991 (O&M) -10- -

28. Equally untenable is the plea of waiver. Waiver of a statutory right Equally untenable is the plea of waiver. Waiver of a statutory right Equally untenable is the plea of waiver. Waiver of a statutory right Equally untenable is the plea of waiver. Waiver of a statutory right and intentional. In the present case, the admitted must be clear, unequivocal and intentional. In the present case, the admitted and intentional. In the present case, the admitted must be clear, unequivocal position is that the property was joint and unpartitioned and that the plaintiff position is that the property was joint and unpartitioned and that the plaintiff position is that the property was joint and unpartitioned and that the plaintiff position is that the property was joint and unpartitioned and that the plaintiff fourth share therein. In the absence of proof of notice or any continued to hold one-fourth share therein. In the absence of proof of notice or any fourth share therein. In the absence of proof of notice or any continued to hold one evincing abandonment of his right, waiver overt act on the part of the plaintiff evincing abandonment of his right, waiver evincing abandonment of his right, waiver overt act on the part of the plaintiff cannot be presumed. cannot be presumed. Conclusion

29. In view of the above discussion, the findings recorded by the learned In view of the above discussion, the findings recorded by the learned In view of the above discussion, the findings recorded by the learned In view of the above discussion, the findings recorded by the learned Trial Court and affirmed by the learned Lower Appellate Court are based on proper Trial Court and affirmed by the learned Lower Appellate Court are based on proper Trial Court and affirmed by the learned Lower Appellate Court are based on proper Trial Court and affirmed by the learned Lower Appellate Court are based on proper and correct application of law. appreciation of evidence and correct application of law. appreciation of evidence

30. The present Regular Second Appeal is accordingly dismissed, being The present Regular Second Appeal is accordingly dismissed, being The present Regular Second Appeal is accordingly dismissed, being The present Regular Second Appeal is accordingly dismissed, being devoid of merit. The judgments and decrees passed by the courts below are devoid of merit. The judgments and decrees passed by the courts below are devoid of merit. The judgments and decrees passed by the courts below are devoid of merit. The judgments and decrees passed by the courts below are affirmed.

31. Pending application(s), if any, also stands disposed of. Pending application(s), if any, also stands disposed of. Pending application(s), if any, also stands disposed of. , 2026 January 09, 2026 tripti Whether speaking/non Whether speaking/non-speaking : Speaking speaking : Speaking : Yes/No. : Yes/No. Whether reportable Whether reportable (MANDEEP PANNU) JUDGE TRIPTI SAINI 2026.01.09 11:24 I attest to the accuracy and integrity of this document