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Showing contexts for: preferential right in Lt. Gen. Y. K. Mehta vs Lt. Gen. R. K. Mehta And Ors. on 5 December, 2023Matching Fragments
56. It is further argued that merely because the MOU with the Builder was jointly entered into by all the co-owners, the right of preferential right to purchase did not cease. The subsequent rescission of the said Agreement/MOU would not defeat the right of pre-emption which would get revived once the MOU got cancelled. Though Ms. Veena Puri, sister of Lt. Col. Y.K. Mehta had admittedly executed a Sale Deed in favour of defendant No.6 & defendant No.7, but the preferential right existed since prior to the said Sale. There cannot be any estoppels to the statutory right as provided under Section 22 of the Hindu Succession Act,1956.
122. The basic policy behind such preferential right is that no stranger should be allowed to thrust himself upon the co-sharer in a property against their will and to prevent apprehended inconvenience to the co-sharer.
123. In the context of pre-emptory right which is similar to the preferential right envisaged under Section 22 of the Hindu Succession Act, 1956, the Supreme Court in the case of Raghunath (Dead) By Legal Representatives vs. Radha Mohan (Dead) Through Legal Representatives and Others (2021) 12 SCC 501, had opined that the pre-emptor has two rights: first, the inherent or primary right i.e., right for the offer of a thing about to be sold. The second is the secondary right of pre-emption which is simply a right of substitution in place of an original vendee, and the pre- emptor is bound to show not only that his right is as good as that of that vendee, but that it is superior to that of the vendee. Such superior right has to subsist at the time when the pre-emptor exercises his right.
(v) then too, the right is to be substituted by purchasing the sold share from the vendee and not to avoid the sale.
126. The facts of this case may now be analysed on these aspects to determine whether the plaintiff is entitled to any preferential right as claimed. In the present case, admittedly the suit property had devolved upon the legal heirs of the deceased Ms. Yashwant Kumari, who became the co-owners in the suit property. They all became entitled to a preferential right to acquire the interest proposed to be transferred, in terms of Section 22 of HSA. What needs to be examined is whether this preferential right under Section 22 of the HSA, 1956 has been waived or ceased to be available to the parties in the facts of the present case.
141. It is, therefore, concluded that there is no preferential right that Lt. General Y.K. Mehta has as he has waived his preferential right and there is no ground to set aside the Sale Deed. Moreover, Lt. General Y.K. Mehta has not sought any right of substitution which could have been claimed as a secondary right.
142. The issues are, therefore, decided against Lt. General Y.K. Mehta.