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27. He would further submit that plea of preemption is basically under Section 22 of the Act, 1956 which prescribes preferential right to acquire property in certain cases. It provides that if any one of heirs specified in Class-I proposes to transfer his or her interest then the other heir shall have a preferential right to acquire the said interest. To exercise the said right, an application under Section 22 (2) of the Act, 1956 should be moved before the concerned court for fixation of price of proposed transfer. In absence of any such application, the plaintiff has no right to claim any preferential right, as such also, his cross appeal for preferential right is not maintainable before this Court. In support of his submission, he placed reliance upon the judgments reported in AIR 1981 MP 250 & AIR 1995 Gau

75. Section 22 of the Act, 1956 has come up for consideration before Division Bench of High Court of Calcutta in Pabitra Kumar Maity Vs. Shyamali Manna & others23, wherein it has been held at paragraph 17, 18 & 20 as under:-

"17. A distinction is sought to be made on interpretation of Section 22 of the said Act that the word 'proposes to transfer' appearing in sub- Section(1) of Section 22 of the Act must be read conjointly with the provision contained in sub- Section(2) thereof and, therefore, the consideration plays a vital role in bringing the incident of transfer within the conntour of the said provision. In our opinion, Sub-Section 1 and 2 of Section 22 of the Act contemplates different eventualities and does not override the integral facet on the preferential right. Sub- Section(1) expounded the right of the heir specified in Class-I of the schedule to invoke preferential right to acquire the interest of the other heir who transferred his or her interest in the property or business to third party. Sub-Section(2) can be visualised as the consequential steps for acquisition of such share and does not control sub- Section(1) thereof. The moment the transfer is affected by a well recognised mode of transfer, sub-Section(2) requires acquisition of such share upon payment of the consideration either on the basis of an agreement subsequently arrived or in absence thereof the consideration determined by the court. The element of "transfer" divest the executant of the deed of all his right which came to be vested upon the recipient thereof may be by way of a gift which does not contain the consideration. Such right of the recipient cannot be taken without the payment of the consideration and precisely for such reason sub-Section(2) has been incorporated. The vested right can only be divested by well recognised mode of transfer. The hypothetical example can be made in this regard when 'A' gifted his immovable property to 'B' out of love and affection. B in turn wanted to sale the said property to any stranger as such deed of gift is not conditional one. He is entitled to receive the consideration although he acquired the right, title and interest by way of a gift which admittedly does not contain consideration.
20. So far as the concluded transfer is concerned, we do not find any restriction having put under Section 22 to have its restricted applicability in case of proposed transfer if the transfer has been affected without his knowledge, still the heir can maintain the proceeding invoking the preferential right enshrined under Section 22 of the Act. We thus modifying the decree of the Trial Court to the extent that plaintiff has a preferential right in respect of Ka(1) Schedule Property."

79. The judgment and decree passed by the trial Court so far as denial of preferential right to the original plaintiff is modified and it is held that the legal representatives of the plaintiffs are entitled to get preferential right over the suit property.

80. Since it is affirmed that defendants No. 2 & 3 are not bonafide purchasers and legal representative of the plaintiff have preferential right over the suit house, they are directed to pay Rs. 4 lacs to defendant No. 1, who in turn will execute the sale- deed in their favour. Defendants No. 2 & 3 may take recourse against defendant No.1- Aarati Mishra for recovery of the amount as paid by them, as held by the learned trial Court. Accordingly, this part of judgment and decree of the trial Court while passing the judgment and decree, is affirmed.