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4. The interim order passed by the learned Trial Judge was affirmed by an order dated 9.11.1990. Three Miscellaneous Appeals were filed thereagainst by the respondents. The matters were said to be pending before the District Judge for a long time. However, on or about 11.6.2003, the appellant herein moved an application for amendment to add a new relief in one of the plaints claiming preferential right in respect of the suid property on the premise that the plaintiff was a co-sharer of the lands in suit to the following effect :

7. Mr. Shishir Pinaki, learned counsel appearing on behalf of the respondent, on the other hand, would submit that this Court, in a case of this nature, need not go into the said question as admittedly the appellant having waited for a period of 13 years to claim his purported preferential right in terms of Section 22 of the Hindu Succession Act, the same was not maintainable being barred by limitation.

Section 22 of the Hindu Succession Act reads, thus :

"Section 22.Preferential right to acquire property in certain cases(1) Where, after the commencement of this Act, interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolve upon to two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.

Explanation.In this section, "court" means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State Government may, by notification in the Official Gazette, specify in this behalf."

8. A right claiming preference over a property in terms of a statute ordinarily is a weak right.

Limitation Act 1963, by Article 97, provides for one year's limitation for claiming such a right. The suit was filed in the year 1990. The sale deeds, during the pendency of the suit, were executed on 8.6.1990 and 18.6.1990. The application for amendment was filed 13 years after the filing of the suit. A suit claiming preferential right was required to be filed ordinarily within the prescribed period of limitation.

14. The decision of the Kerala High Court also provides for a right upon a co-sharer to file a suit for enforcing such a right, stating :

"The object of sub-section (1) as we understand it is that in cases where by virtue of intestate succession under the Act any interest in immovable property has devolved upon two or more heirs specified in Class I of the Schedule and any one of such heirs proposes to transfer his interest in the property the other heirs should have a preferential right to acquire the interest which is so proposed to be transferred. The said intention of Parliament can be effectuated only if we consider the section as conferring an enforceable right on the heirs other than the one who proposes to transfer his interest. The section confers on such co-heirs a preferential right to acquire the interest which is proposed to be transferred by the other co-heir. In case the proposed transfer is effected by one of the co-heirs in violation of the right conferred on his co-heirs by sub-s.(1) the latter cannot certainly be without a remedy because every legal right must necessarily carry with it a remedy for enforcing the same. The remedy of the non-alienating co-heirs, in such circumstances, will, in our opinion, be to seek the intervention of the Court to enable them to acquire the right which has been transferred away by the other co-heir in violation of sub-section (1) of Section 22. In as much as the section does not provide any special procedure for seeking the said remedy, the ordinary procedure for enforcement of any civil right has to be resorted to by the co-heirs who wish to enforce their rights under Section 22(1); in other words the remedy is by way of a regular civil suit before the competent court. Where the properties have been already alienated in favour of strangers there is all the more reason why there should be a full and fair adjudication of the entire matter in a suit tried before a competent civil Court because various factual questions are bound to arise for determination in such a suit wherein the principal issue would be whether the transfer complained of was effected in violation of sub-section (1) of Section 22. The main purpose of such a suit instituted by the co-heir will necessarily be the enforcement of the right conferred by Section 22(1) of the Act. The question of invalidity of the transfer effected by the other co-heir in favour of strangers becomes relevant in such an action as an incidental matter which has necessarily to be gone into for the purpose of determining whether the plaintiff is entitled to the relief sought by him against his co- heirs in enforcement of the right conferred by Section 22(1)."