NEERAJ Vs. KANWAR GIRISH KUMAR

JUDGEMENT

(1.) The suit was at the instance of the plaintiffs on a claim that they had a preferential right as co-heirs at law under the Hindu Succession Act, 1956 (in short the 'Act'), The trial Court dismissed the interim player for injunction against the co-heirs from selling the property but in appeal, the Appellate Court granted the restraint order.

(2.) Counsel for the petitioners has an argument to make that the Court below has relied on two judgments of this Court that have examined the interplay of the provisions under Sec. 22 of the Act and Sec. 15 of The Punjab Pre-emption Act 1913. According to him, the provisions of Sec. 15 are pari materia with the right conferred under Sec. 22 of the Act and right of Pre-emption cannot be enforced after the provisions of Sec. 15 of the Punjab Preemption Act 1913 had been held to be unconstitutional in Atam Prakash Vs. State of Haryana, AIR 1986 SC 859.

(3.) As a mere statement of law, I must observe that the judgment in Harbir Vs. Rajpal, 2002 (2) RCR (Civil) 241 , relied on by the petitioners to support this argument, with due respect does not state the law correctly. In Harbir Vs. Rajpal (supra) the claim by a person for an injunction against his brother in relation to property inherited by them from their father that he had a right of pre-emption guaranteed under Sec. 22 of the Hindu Succession Act, was refused making a laconic reference to Atam Prakash case (Supra) as rendering impermissible a right of pre-emption. The reference to Atam Prakash's case under the facts and circumstances of the case, was wholly incongruous. Atam Prakash Vs. State of Haryana, AIR 1986 SC 859 has not disapproved of right to pre-emption itself as anachronistic. On the other hand, an amendment made to Sec. 15 of the Punjab Preemption Act making invidious distinction between certain male heirs being preferred to certain female heirs was held unconstitutional and violative of Art. 14 of the Constitution. The striking down of certain amended provisions of the Punjab Pre-emption Act did not strike down the right to pre-emption itself. It was the discriminatory preference given to certain heirs that was struck down.