### Suit Challenging Transfer by Co-Sharers Under Section 22 of Hindu Succession Act Inadmissible Without Primary Prayer for Preemption

The appellant (plaintiff) filed a suit for a declaration that a sale deed executed by defendant nos. 3 and 4 (co-sharers) in favor of defendant nos. 1 and 2 (third parties) was void and inoperative, along with a prayer for a permanent injunction.

Both the appellant and the selling defendants are Class-I heirs of the original owner.

The Trial Court dismissed the suit on the grounds that co-sharers are not barred from transferring their shares to third parties.

The First Appellate Court affirmed the dismissal, though it additionally referenced Section 44 of the Transfer of Property Act.

The appellant challenged these decisions via second appeal, asserting a right of prior purchase under Section 22 of the Hindu Succession Act, 1956.

1. Whether a suit for declaration to render a sale deed void is maintainable under Section 22 of the Hindu Succession Act, 1956, in the absence of a specific prayer for the enforcement of the preferential right of purchase.

2. Whether the transfer of a share by a co-sharer to a third party is per se void or merely voidable at the instance of a person exercising a right of pre-emption.

The court applied Section 22 of the Hindu Succession Act, 1956, which grants Class-I heirs a preferential right to acquire the interest of another co-sharer.

Following the precedent in Smt. Arati Das vs. Bharati Sarkar & Ors. (AIR 2009 Cal 8), the court noted that while Section 22(2) provides a summary procedure for determining consideration, the enforcement of the substantive right under Section 22(1) requires a regular civil suit.

The court also clarified that such alienations are not void ab initio but are "voidable at the instance of the sharer who institutes the suit for enforcement of his right".

The Court examined the appellant's reliance on Smt. Arati Das and determined that while a suit is the correct vehicle to enforce Section 22 rights, the primary relief must be the assertion of the preferential right of purchase.

In this case, the appellant's plaint was "conspicuous by its absence" of any prayer asserting this right; instead, it sought only a declaration that the sale was void.

The Court reasoned that a declaration of invalidity is merely an incidental or consequential relief to the primary relief of pre-emption.

Since no law imposes a flat bar on a co-sharer's right to transfer property to a stranger—save for the limitation of a co-sharer's right to preempt—the suit as framed lacked a foundational legal basis.

The court dismissed the Appellate Court's discussion of Section 44 of the Transfer of Property Act as "entirely irrelevant" but upheld the ultimate conclusion of dismissal.

A sale by a co-sharer to a third party is not void in isolation.

Finding no substantial question of law, the Court dismissed the second appeal (SAT 62 of 2026) and the connected application (CAN 1 of 2026) under Order XLI Rule 11 of the Code of Civil Procedure.