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4. The plaintiff opposed the application by filing a counter stating that the suit is maintainable that there was no suggestion or discussion by the plaintiff with the defendants, that the sale in favour of the seventh defendant was made behind the back of the plaintiff, that he has not stated anything in the letter dated 4.1.1995 and that he has not received any notice from the defendants.

5. The learned single Judge after going through the averments made in the plaint and the application filed by the second defendant, has framed the issue as to the maintainability of the suit. The learned single Judge has come to the conclusion that a reading of Section 22 of the Hindu Succession Act makes it clear that if any person dies intestate leaving behind more than one heir specified in Class I of the Schedule and if one such heir wants to transfer or proposes to transfer his or her interest in the property, the other heirs shall have a preferential right to acquire the interest which is proposed to be transferred. It is not in dispute that the wife and children are specified in class I of the Schedule and they are entitled to the property in equal shares. According to Section 22(1) of the Act, if any one heir proposes to sell his or her share, the other sharers have got preferential right to purchase the same. The right given to the Class I legal heir mentioned in the Schedule to the Hindu Succession Act is a right of pre-emption or preferential right to claim sale proposed to be made by other heir or heirs. The right is to be exercised at the time when one of the heir or more than one heir propose to deal with his their share. As per Section 22(2) one can file an application and ask the court to adjudicate upon the consideration to be paid to the sharer by the other sharer who wants to purchase the shares of others by exercising his preferential claim.

"I am not in a position or having money to give all of you. So I think of an idea. That is our house may be divided into two portions lengthwise, then back portion may be sold to the Marvadi temple authorities then I will take front portion. From the sale proceeds of back portion, all of you six partners share that amount. This is my idea."

The plaintiff has requested the other sharers to drop the idea of selling the house and consider his idea. On going through the said letter, learned Judge was of the view that the plaintiff was not willing to purchase the entire share belonging to the defendants. He has expressed his inability to purchase the share of the other co-sharers for want of funds. On the basis of the above points, learned Judge has held that there was no merit in the contention of the plaintiff that he was not given option to purchase the shares of other co-owners and that the defendants have executed the sale deed to a stranger ignoring his right of preferential purchase conferred under Section 22(1) of the Hindu Succession Act. Learned Judge has also observed that the plaintiff not only had the notice but also has expressed his inability to exercise the right of pre-emption or preferential right to purchase and therefore, the suit filed by the plaintiff seeking to exercise his right has no substance and the suit has been filed only for the purpose of harassing his co-sharers and also third party purchaser, namely the seventh defendant who has already taken the sale deed. The co-sharers of the plaintiff namely the defendants 1 to 6 have offered to sell their share to the plaintiff which he has declined to accept and therefore he cannot claim preferential right conferred under Section 22(1) of the Hindu Succession Act, The learned Judge has dismissed the suit.

In Nagammal's case, 1970 (1) M.L.J. 358, a learned Judge of this Court has held that the existence of the right is patent and the burden is upon the purchaser to establish that the other co-heirs declared or waived their preferential right when occasion arose. It is not pretended that the purchaser made any reference to the non-alienating co-heirs before his purchase. It follows that the plaintiffs have not lost their preferential right of purchase by the sale.

In V.Sreedevi Amma's case, , a Division Bench of the Kerala High Court has held that where one of the co-heirs transfers his interest in immovable property in violation of Section 22(1) the remedy of the other co-heirs to enforce their preferential right under Section 22(1) to acquire the transferred interest is by way of a regular civil suit before a competent civil court and not by way of an application under S. 22(2). It has been further held that the alienation of his interest by a co-heir in violation of Section 22(1) is not void but is voidable at the instance of the other non-alienating co-heirs. The learned Judges of the Division Bench have made it clear that the remedy lies only to file a suit for enforcement of the limited right of purchase conferred by sub-section (1) of Section 22 and in such a suit, the question of invalidity of the sale already effected by the co-sharer will be incidentally investigated and decided.

13. Learned counsel for the respondents 1 to 6 has relied on the decision of the Madhya Pradesh in Ghewarwalajain v. Hanuman Prasad, to substantiate his contention that once the transfer has been concluded the co-sharer cannot exercise preferential right under Section 22(1) and therefore, application by him under Section 22(2) for determining price of property would not be maintainable.

14. A reading of the letter dated 4.1.1995 shows the appellant who happened to be the co-heir of the property expressing his desire to purchase a portion of the building. No evidence is placed before this Court that the co-heirs before finalising the sale, have taken into consideration the option exercised by the appellant herein. The object of sub-section (1) of Section 22 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. It has to be construed that Section 22(1) confers an incidental right on the heirs other than the one who proposed to transfer his interest. It is no doubt true that sub-section (1) of Section 22 confers on such co-heirs a preferential right to acquire the interest which is proposed to be transferred by the other co-heir. When the transfer is in violation of the provisions of Section 22(1) of the Act, it goes without saying that the other co-sharer 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, insuch circumstances, will 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. As the Section does not provide for any special procedure for seeking the said remedy, a co-sharer has to seek enforcement of such right under Section 22(1) by way of a regular civil suit before the competent court. Where the property has been alienated in favour of strangers, there is all the more reason why there should be 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 rights 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) of the Act. The judgment of the learned single Judge dismissing the suit as not maintainable is set aside. The matter is remanded back to the learned single Judge for considering all the issues arising in the suit on merits. The appeals are allowed. No costs. Consequently, C.M.P.No.4302 of 1999, is closed.