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2. Challenging the order passed by the Court below, it is submitted by counsel for applicant that respondent No.1 and respondents No.2 to 6 are related to each other and undisputedly, respondent No.1 has a preferential right to purchase the property in dispute. Earlier, by registered sale-deed dated 19/02/1988, Hakim Singh, who had 1/4th share after the death of his father Harvilas had sold the property in dispute to one Bashir NEUTRAL CITATION NO. 2026:MPHC-GWL:1086 2 CR-146-2010 Ahmed. Accordingly, respondent No.1 had filed a suit for declaration of title, enforcement of preferential right, and for correction of the revenue records against respondents No.2 to 6 as well as Bashir Ahmed. The said suit was decreed by judgment and decree dated 18/09/1993 passed by Civil Judge, Class-II, Gohad, District Bhind, and it was held that respondent No.1 has a preferential right to purchase the share of Hakim Singh and sale-deed dated 19/02/1988 executed in favour of Bashir Ahmed was set aside. It is submitted that thereafter respondent No.1 did not take any step to get the sale-deed executed and ultimately, Hakim Singh sold the property in dispute to applicant by registered sale-deed dated 22/08/2003 for a consideration amount of Rs.83,700/-. It is submitted that thereafter, respondent No.1 filed an application under Section 22(2) of the Hindu Succession Act for enforcement of his preferential right, and by the impugned order the Trial Court has declared the sale-deed executed in favour of applicant as null and void and has directed that respondents No.2 to 6 shall execute a sale-deed in favour of respondent No.1 on payment of a consideration amount of Rs.10,000/-.

4. None appears for respondents though served.

5. Heard the learned counsel for the applicant.

6. Section 22 of the Hindu Succession Act reads as under:-

"22. Preferential right to acquire property in certain cases.--
(1) Where, after the commencement of this Act, an 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, devolves upon 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. (2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application.

7. Thus, it is clear that Class-I heir has a preferential right to purchase the property in order to keep a stranger away from the family property. In the NEUTRAL CITATION NO. 2026:MPHC-GWL:1086 4 CR-146-2010 present case, Hakim Singh had alienated his share to one Bashir Ahmed by a registered sale-deed dated 19/02/1988. The suit filed by respondent No.1 was decreed by judgment and decree dated 18/09/1993 and the sale-deed executed in favour of Bashir Ahmed was set aside, and it was held that respondent No.1 has a preferential right to purchase the property in dispute.

In other words, the cause of action is a sale to a third party without reference to the other co-heirs who might have purchased the property for the proper price, if it had been offered to them.

18. On bare perusal of section 22 it is as clear like a noon day that preferential right has been accrued to a co-heir to purchase the share of alienating co-heir, and I am of the view that the burden of proof of waiver of such right is upon the purchaser to establish that other co-heir has waived his preferential right. Thus where one of the co-heirs transfers his interest in a immovable property in violation of section 22(1) of the Act the remedy of other co-heir to enforce his preferential right under the said provision is by way of filing regular civil suit.