1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO.1150 OF 2004 (Kuber s/o Kashinath Bamankar Vs. Ku.Shashikala d/o Dattatraya Katikar and another) WITH CA NO.8033/2004 -------------------------------------------------- Office notes, office Memoranda of Court’s or Coram,appearances, Court’s orders Judge’s or directions and Registrar’s orders Orders Mr. S.S.Choudhary, Adv., for the appellant. Mr.V.J.Dixit, Senior counsel, with Mr.M.S.Patil, Adv., for respondent no.1. ... CORAM: K.U.CHANDIWAL, J. DATE:19-3-2010 P.C.:- 1. Special Civil Suit No.10/1991, is filed by Kum.Shashikala against her brother Vinayak and the purchaser Kuber, setting up a claim of pre-emption as available under Section 22 of the Hindu Succession Act ( No.30/1956). The decree dt.30th Jan.,1993, by the learned Civil Judge, Senior Division, Osmanabad, was questioned by the aggrieved defendants before the learned District Judge at Osmanabad in RCA No.106/1993 and failed. 2 Consequently, the Second Appeal by the defendant no.2 Kuber. 2. Mr. S.S.Choudhary, Counsel for the purchaser Kuber/appellant submits, Vinayak has sold his undivided share to the appellant. Dattatraya, father of Vinayak had three daughters, Shashikala, Dwarkabai and Kamalbai. Suit is only by Shashikala - the other two daughters, namely, Dwarkabai and Kamalabai should have been arrayed as defendant. Nothing is whispered about the same. The Counsel submits that this would project a substantial question of law. 3. My attention is drawn by the learned Senior Counsel appearing for respondent/original plaintiff to the observation of the learned first appellate Court in paragraph No.20, which was in response to the points formulated by the learned Judge wherein, he has elaborately discussed about such objection having been raised by the defendant below Exh.27, 3 however, the evidence adduced before the learned Court of first instance indicated that the DW No. 1 and DW No.3 categorically proved that defendant no.1 has shown his willingness to sell his share in the suit land to all the three sisters and they refused to purchase it. It has also been indicated, the other sisters i.e. Dwarkabai and Kamalbai had knowledge of such purchase by Kuber from Vinayak, however, they have not exercised such preferential rights. Learned Judge has observed that plaintiff and two sisters are jointly residing in one Wada. Obviously other two sisters should have knowledge about the present suit which is in the nature of exercise of preferential rights. Mr. Chaudhari submits that these are surmises of the parties. I doubt it could be so, as this flows from the evidence adduced by the parties and based on the same, learned first appellate Court has averred about the knowledge to the two for the sale transaction and 4 non exercise of preferential rights. There is no controversy, Plaintiff had rights and interest in the property. 4. Vinayak could not have, in the absence of allowing his sisters to exercise preferential rights conveyed the same in favour of the appellant Kuber. The provisions of Section 22(1) of the Hindu Succession Act ( No 30/1956) have been obliterated. Such transaction will not be binding on the rights already available to the plaintiff. The concurrent findings recorded by both the Courts do not warrant any interference. No substantial question of law could visibly be seen to be formulated. Second Appeal dismissed. No costs. Civil Application disposed of. (K.U.CHANDIWAL) JUDGE agp/1150-04sa