SUNIL CHANGDEO GALHE AND OTHERSversusSATISH SUDHAKAR DESHPANDE AND OTHERS

                              1                        CRA.62-25.odt

     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                BENCH AT AURANGABAD

        CIVIL REVISION APPLICATION NO.62 OF 2025

          SUNIL CHANGDEO GALHE AND OTHERS
                      VERSUS
       SATISH SUDHAKAR DESHPANDE AND OTHERS

                              ...
   Advocate for Applicants : Mr. Jiwan J. Patil h/f Mr. Kasar
                      Rajendra Sudam.
 Advocate for Respondent Nos.2 to 4 : Ms. Deshmukh Charuta
                            Sunil.
                              ...

                   CORAM :        SHAILESH P. BRAHME, J.

                   RESERVED ON   : 13.03.2026
                   PRONOUNCED ON : 18.03.2026

FINAL ORDER :


1.    Heard finally with the consent of the parties.


2.    An order dated 26.11.2024 passed below Exhibit 18

refusing to reject the plaint in Special Civil Suit No.74 of 2025

(Old No.95 of 2024) under Order VII Rule 11 of the Code of

Civil Procedure (for the sake of brevity and convenience

hereinafter referred as to the “C. P. C.”) is questioned by the

applicants who are defendant Nos.18 to 24.
                                2                    CRA.62-25.odt

3.    The respondent Nos.1 to 4 are the original plaintiffs,

who have instituted Special Civil Suit No.74 of 2025 for

exercising right of pre-emption, declaration, mandatory and

perpetual injunction.      The respondent Nos.5     to 21 are

defendant Nos. 1 to 17. Applicants are the purchasers vide

sale deed dated 12.02.2024 executed by respondent Nos.5 to

21. The parties are referred to by their original status in the

Trial Court.


4.    Plaintiffs have filed suit in respect of gut No.696, which

is contended to be undivided joint Hindu family property of

plaintiffs and the defendant Nos.1 to 17. It is further

contended that it was agreed between them that the defendant

Nos.1 to 17 would sell their undivided share to the plaintiffs.

Dodging this right of pre-emption, their undivided share is

stated to have been alienated to the defendant Nos.18 to 24

vide registered sale deed dated 12.02.2024. The plaintiff have

asserted their right of U/Sec.22 of the Hindu Succession Act

(hereinafter referred as to the ‘Act’).


5.    The defendant Nos. 18 to 24 contested the suit by filing

written statement justifying the alienation and on various
                               3                        CRA.62-25.odt

pleas. They submitted application Exhibit 18 U/O VII Rule 11

of the C. P. C. seeking rejection of plaint on specific plea that

right to sue did not exist because the defendant Nos. 1 to 17

are not Class-I heirs under the Act. Application is contested

and it came to be rejected by the impugned order.


6.    Learned counsel Mr. Jivan Patil appearing for the

applicants submits that impugned order is unreasoned and

cryptic as learned Judge did not examine as to whether

plaintiffs and defendant Nos.1 to 17 would fall within the

category of Class-I heirs under the Act. It is stated to be

perversity to overlook that no right to sue exists. The vendors

are not class-I heirs. It is submitted that though various reliefs

are claimed in the plaint the fundamental relief is under pre-

emption U/Sec. 22(1) of the Act. It is submitted that prayer

for specific performance of contract is cleverly drafted so as to

project it as an independent relief. It is submitted that no

agreement to sell was ever existed. In the absence of terms of

consideration, the relief of specific performance is illusory. It is

submitted that the learned Judge misguided himself in

recording the observations regarding tenability of the claim for

want of relief of partition. Impugned order is stated to be
                               4                        CRA.62-25.odt

unsustainable and liable to be rejected.


7.    Per contra, learned counsel Mrs. Charuta Deshmukh

appearing for respondents submits that legal heirs of Bhagwan

sold their interest to the purchasers. The vendor and the

members of the joint family are Class-I heirs and there exists

right to sue for the plaintiffs. It is further submitted that prayer

Clause-B pertains to specific performance of contract founded

on oral agreement which is independent relief. It is submitted

that the cause of action has been specifically stated in the

plaint.   It is further submitted that the learned Judge has

rightly passed the order. The triable issues are raised, which

need objective scrutiny.


8.    Having considered rival submissions of the parties the

undisputed position is the relationship inter-se amongst the

plaintiffs and the defendant Nos.1 to 17. A genealogy which is

produced in para No. 2 of the plaint is relevant to examine as

to whether right of pre-emption exists or not. Following is the

undisputed genealogy.
                              5                       CRA.62-25.odt




9.    It is specifically stated in para No.3 of the plaint that

propositus was Gopal. Bhagwan Gopal died on 15.11.1973.

Bhikaji Gopal died on 21.07.1982. Chandrakant was one of

the sons of Bhikaji, who was alive along with his siblings

Suryakant, Laxmikant, Alka, Rajani and Nanda, at the time of

death of his father. The family is stated to be undivided.


10.   In para No.4 of the plaint it is averred that inclination of

purchasing undivided share of defendant Nos.1 to 17 was

conveyed by the plaintiffs and assurance was given to that

effect on 09.02.2024. Despite the assurance, defendant Nos.1
                               6                       CRA.62-25.odt

to 17 sold their share to defendant Nos.18 to 24 on

12.02.2024.


11.   The following prayer of the plaint is stated to be

independent and in the nature of specific performance of oral

contract.




12.   Neither any agreement to sell in writing nor oral with

specific terms is spelt out from plaint. Entire plaint is silent as

to what were the terms of the agreement to sell. Only

assurance of selling them undivided share by defendant Nos.1

to 17 cannot be the basis of claim for specific performance of

contract.     The interaction between the parties is merely

proposal and acceptance. There is no consideration as is

contemplated by Section 2(d) of the Contract Act. Hence, it

cannot be said to be an agreement as per Section 2(e) of the
                               7                       CRA.62-25.odt

Contract Act. The claim for specific performance of contract is

thoroughly misconceived.


13.   Its not a suit for specific performance of contract

founded on any tangible instrument or oral terms between the

parties. Rather plaintiffs’ claim is founded on their right of pre-

emption as envisaged under Section 22(1) of the Act. The

prayer itself refers to pre-emptory right of the plaintiffs. The

submissions of learned counsel Mrs. Charuta Deshmukh cannot

be countenanced in this regard. I find that the above referred

prayer is consequential and cannot be treated to be

independent prayer having distinct cause of action. This aspect

of the matter is lost sight of by the Trial Court.


14.   The suit is predominantly for the prayer “A” which

unequivocally refers to right of pre-emption under Section

22(1) of the Act. The prayer “C” about perpetual injunction is

consequential and dependent upon earlier prayers. Therefore,

it is necessary to examine as to whether right to sue exists

under Section 22(1) of the Hindu Succession Act.


15.   It is relevant to notice the following statutory provision :
                               8                        CRA.62-25.odt

      “22. Preferential right to acquire property in certain
      cases.―(1) Where, after the commencement of this Act,
      an interest in any immovable property of an intestate, or
      in any business carried on by him or her, whether solely
      or in conjunction with others, devolves upon two or more
      heirs specified in class I of the Schedule, and any one of
      such heirs proposes to transfer his or her interest in the
      property or business, the other heirs shall have a
      preferential right to acquire the interest proposed to be
      transferred.”


16.   The requirement of claiming right of pre-emption is,

there has to be immovable property of an intestate or the

business carried on by him/her and devolvement upon class-I

heir of the schedule. In the present case, suit is filed in respect

of agricultural land. Gopal died intestate and his both sons

Bhagwan and Bhikaji also died intestate. Their lineal

descendants are inheriting the suit land.


17.   The suit is brought by descendants of branch of Bhikaji

against the descendants of Bhagwan as well as few

descendants of Bhikaji. The descendants of Bhagwan cannot

be said to be class-I heirs qua the plaintiffs. Defendant Nos.12

to 17 who are also descendants of Bhikaji are also not class-I

heirs qua the plaintiffs. The plaintiffs can have no any
                               9                       CRA.62-25.odt

preferential right under Section 22(1) of the Act for purchasing

the property in question.


18.   It is pertinent to note that when Bhikaji died, his one of

the sons Chandrakant was alive. Defendant Nos.12 to 17 are

heirs of Chandrakant. Chandrakant is not the predeceased son

of Bhikaji. Had he been predeceased, defendant Nos.12 to 17

would have become class-I heirs of the plaintiffs. To the extent

of defendant Nos.12 to 17 the plaintiff could have asserted the

right of pre-emption. But such is not the situation. Defendant

Nos.12 to 17 are first degree cousins of plaintiff Nos.1 to 3.

Trial Court failed to analyze the matter in this manner to

ascertain as to whether there exists any right to sue for relief of

pre-emption. I am of the considered view that impugned order

is unsustainable.


19.   It is not that only heirs of Bhagwan namely defendant

Nos.1 to 11 have transferred their undivided share to

defendant Nos.18 to 24. Defendant Nos.12 to 17 together with

them transferred their undivided share. I find no merit in the

submission of learned counsel Mrs. Charuta Deshmukh that

heirs of one branch have transferred share.
                               10                     CRA.62-25.odt



20.      Taking the averments of the plaint as they are and

examining claim of pre-emption as per the genealogy provided

in paragraph No.2 of the plaint, there is no iota of doubt that

right to sue under Section 22(1) does not exists. There is no

cause of action and whatever is projected to be, is creation of

illusion.


21.      I have already observed that prayer “B” of the plaint is

alike relief of specific performance of contract but it is

consequential one.      It is cleverly drafted so as to project

independent prayer of specific performance of contract

founded on the agreement to sell. Therefore, in the suit illusory

relief of specific performance of contract is being claimed.

There is no point and purpose in dragging the parties to full-

fledged trial. I hold that the suit is vexatious and its plaint is

liable to be nipped in the bud.


22.      I am being pointed out another flaw in the impugned

order.      The Trial Court has observed as regards to

maintainability of the suit without claiming relief of partition.

It was not the claim of defendant Nos.18 to 24 that plaint was
                              11                      CRA.62-25.odt

liable to be rejected for want of relief of partition. Therefore,

the observations are mis-directed and inconsequential.


23.   Learned counsel Mr. Patil appearing for the applicants

has relied upon judgment of Ramlal Maniram Navdhinge Vs.

Maniram Patiram Navdhinge and others ; 2008(1) Mh.L.J. 860 .

My attention is adverted to paragraph Nos.10 and 11 of the

judgment. In that case, the plaint was rejected by the Trial

Court which was confirmed by the High Court. The suit was

founded on right under Section 22 of the Act and this Court

examined as to whether the parties would be class-I heirs. In

the case at hand, Trial Court failed to conduct the assessment

as is done by Courts in the cited judgment.


24.   Further reliance is placed on the judgment of Co-

ordinate Bench in Abasaheb Khandu Borude Vs. Sheshnarayan

Babu Borude and others ; 2019(3) AIR Bom.R 452. But in that

case right under Section 22(1) of the Act was dealt with after

full-fledged trial. It was not a case of rejection of the plaint

under Order VII Rule 11. The ratio of the judgment cannot be

made applicable to the present case.
                                 12                      CRA.62-25.odt

25.     Upshot of above discussion is that impugned order is

liable to be rejected. Hence, I pass following order :

                                ORDER


        (i)     Civil revision application is allowed.


        (ii)    Impugned order below Exh.18 in Special Civil Suit

                No.74 of 2025 is quashed and set aside.


        (iii)   The plaint in Special Civil Suit No.74 of 2025

                shall stand rejected.


        (iv)    Decree be drawn accordingly.




                                        (SHAILESH P. BRAHME, J.)

                                  …

vmk/-



26.     After pronouncement of the order, learned counsel Mrs.

Deshmukh prays for stay to the operation and execution of the

order passed today.


27.     Learned counsel for the applicants opposes the request.
                               13                       CRA.62-25.odt

28.     As the respondent/plaintiff desires to approach the Apex

Court challenging the order, I find it fit to grant stay for six (6)

weeks to the operation and execution of the order passed

today. Simultaneously, there shall be stay to the proceeding of

Special Civil Suit No.74 of 2025 pending before the learned

Civil Judge Senior Division, Rahuri till then. After expiration

of the period stipulated above, the stay granted today shall

stand vacated automatically.




                                     (SHAILESH P. BRAHME, J.)

                                …

vmk/-