Preemptive Right Under Section 22 of Hindu Succession Act Is Exclusive to Class I Heirs Over Undivided Property: Bombay High Court Upholds Preferential Purchase

“Purchasers of Undivided Share Without Partition Cannot Oust Co-Heirs in Possession” –Bombay High Court (Bench at Aurangabad), in a reportable judgment delivered by Justice Shailesh P. Brahme, dismissed two second appeals involving a long-standing property dispute within a Hindu joint family over preferential rights of purchase. The Court upheld that under Section 22 of the Hindu Succession Act, 1956, Class I heirs have a preferential right to acquire interest in jointly held ancestral properties and that strangers purchasing undivided shares from other co-heirs cannot claim exclusive possession without partition.

The judgment, rendered in Second Appeal No. 1705 of 2005 (filed by purchasers) and Second Appeal No. 109 of 2014 (filed by plaintiffs challenging quantum), affirms that once the consideration is deposited within the prescribed time, title vests in the preempting Class I heirs automatically—without the need for a declaratory relief or setting aside of the sale deeds.

“Right Under Section 22 Is a Statutory Preferential Right Among Class I Heirs of Intestate Property”

Justice Brahme clarified that Section 22 of the Hindu Succession Act, dealing with preferential rights to acquire immovable property, only applies when the property devolves upon two or more heirs specified in Class I, and one of them proposes to transfer their interest. The Court observed:

“A preferential right under Section 22 of the Act is available to Class I heirs… If the partition opens as per Section 6 of the Act, the plaintiffs are entitled to have 1/3rd share per stirpes along with defendant nos. 6 and 7.”

The Court ruled that in the absence of partition and given the admitted joint family status, the sons of the predeceased son (plaintiffs) are Class I heirs, and uncles (defendants 6 and 7) fall under Class II, having no overriding right. Despite the appellants’ contention that plaintiffs knew of the alienation and failed to assert their rights earlier, the Court found no pleadings or evidence to show any prior offer or waiver of rights by plaintiffs.

“In the absence of any foundation in the written statement, a stray admission is inconsequential. No evidence is placed on record to make out a case that plaintiffs had the opportunity but refused to purchase.”

“Purchasers of Undivided Share Have No Right to Exclusive Possession Without Partition”

A critical issue in the dispute was the status of purchasers (defendants 1 to 5) who had bought undivided shares from other co-heirs (defendants 6 to 9) through four separate sale deeds between April and June 1989, involving Gat Nos. 488, 490, and 595. The plaintiffs, claiming right of preemption, had moved for a declaration and injunction.

The Court noted that the purchasers never sought partition nor established separate possession:

“Though defendant nos. 1 to 5 purchased the suit lands… till this date no endeavour has been made to seek partition. They are not having separate possession. Hence, it cannot be said that they have perfected title.”

Refusing to grant any protection under Section 44 of the Transfer of Property Act, the Court reiterated:

“Remedy of the purchaser of an undivided share is to sue for general partition and to seek possession of the share purchased. Without such steps, they cannot oust the joint possession of other co-heirs.”

“Once Consideration Is Paid Within Time, Title Passes Automatically – No Need to Invalidate Sale Deeds”

Addressing whether plaintiffs were required to seek a declaration setting aside the registered sale deeds, the Court took a procedurally pragmatic view. Relying on Order XX Rule 14 of the Code of Civil Procedure, the Court held:

“What is contemplated by Order XX Rule 14(1)(b) is that on payment of purchase money, the defendant shall deliver possession to the plaintiff whose title shall be deemed to have accrued from the date of such payment.”

Given that the plaintiffs were already in possession, and the decree only required payment within 90 days, the Court held that no separate declaratory relief was necessary.

“There is no need to issue any declaration of setting aside the sale-deeds. Both Courts below have rightly passed the decree.”

“No Extension of Time Was Granted – Stay on Decree Justified Fresh 90 Days for Payment”

Another ground raised by the appellants was that the lower appellate court had illegally extended time for the plaintiffs to deposit consideration, allegedly violating Order XX Rule 14 CPC. The Court rejected this argument, holding that there was no extension of time, only a fresh 90-day window granted after the stay order on the trial court’s decree was vacated.

“As there was stay to the implementation and execution of decree during pendency of appeal, the payment was suspended. The Appellate Court adopted the same course in granting time.”

The judgment also referred to Sulleh Singh v. Sohan Lal, AIR 1975 SC 1957, distinguishing it on facts and clarifying that when execution is stayed, time to comply does not run.

“Fraud Allegations Not Proved – Consideration Was Fair” – Plaintiffs' Second Appeal Also Dismissed

While the purchasers’ appeal was dismissed in full, the plaintiffs’ appeal (Second Appeal No. 109 of 2014), challenging the valuation and alleging fraud, was also dismissed. The Court held:

“The plaintiffs have failed to make out a case of fraud. Neither is there any adequate material to infer fraud. The consideration fixed by both the Courts below cannot be faulted.”

Thus, the decree was upheld in toto, save for the modified direction regarding interest and payment timeline.

Justice Brahme concluded the judgment with the operative portion:

“Second Appeal No. 1705/2005 as well as Second Appeal No. 109/2014 are dismissed. The common judgment and decree passed by the Lower Appellate Court on 30.07.2005 stands confirmed with a modification that the plaintiff shall deposit the amount of purchase price prescribed in the decree with simple interest at the rate of 6% p.a. from 31.12.1992 within a period of 90 days from today, if not paid earlier.”

Preferential Right of Class I Heirs Enforced Over Commercial Interests

This judgment is a landmark reaffirmation of the preferential rights of Class I heirs under Section 22 of the Hindu Succession Act, particularly in the context of undivided ancestral property. It ensures that the statutory right of preemption is not bypassed by strangers purchasing undivided shares, and emphasizes that title passes automatically upon compliance, not upon cancellation of earlier conveyances.

By ruling that exclusive possession cannot be claimed without partition, and that procedural rights must be preserved even when execution is stayed, the Bombay High Court has fortified long-standing legal protections for co-heirs within Hindu joint families.

Date of Decision: 17 October 2025