KULANGARA ABDUL KHADER Vs. DHASHAYANI

JUDGEMENT

(1.) This Second Appeal has been preferred by the 5th defendant in the suit, O.S.No.143/2008 on the file of the Munsiff's Court, Vatakara, who is also the 5th respondent in A.S.38/2009 on the file of the Subordinate Judge's Court, Vatakara against the judgment and decree dtd. 31/1/2013 allowing the appeal. For the purpose of convenience, the parties are hereafter referred to as per their rank before the trial Court.

(2.) The plaintiff who is the 1st respondent in the Second Appeal filed the Suit for pre-emption for enforcing preferential right available under Sec. 22(1) of the Hindu Succession Act, 1956. The plaintiff is the widow and defendants 1 to 4 are the children of deceased Sankaran. The plaint schedule property originally belonged to Sankaran, and on his death, the property devolved upon the plaintiff and defendants 1 to 4. The defendants 1 to 4 assigned their 1/5 share each in the schedule property in favour of the 5th defendant as per Ext.A3 (Ext.B1) sale deed dtd. 2/6/2008, for a consideration of Rs.40,000.00. According to the plaintiff, by virtue of Sec. 22(1) of the Hindu Succession Act, she is entitled to preferential right to purchase the shares of defendants 1 to 4, she being one of the co-heirs.

(3.) The defendants 1, 2, 4 and 5 filed written statement opposing the plaintif's claim. According to them, the plaintiff along with defendants 1 to 4 together decided to sell the plaint schedule property to the 5th defendant for a consideration of Rs.40,000.00 during June-2008. The plaintiff was also willing to assign her 1/5 share in favour of the 5th defendant. Defendants 1 to 4 assigned their share in favour of the 5th defendant with the consent of the plaintiff. It was contended that the plaintiff agreed to assign her share in favour of defendants 1 to 4 later on. It was also contended that the plaintiff has no preferential right, as claimed.