Main issue is Hindu male GrandSon A and B residing in Karntaka who are real brother sold there 1/5+1/5 undivided interest in Property X bequest by Will in Maharashtra to Muslim family(Stranger) by registered coveyence sale deed in the year 2014 in suit property (sub registrar) office.
Before sell no intimitation and notice also NOT sent.
GrandSon C,D,E are male real brothers with there family residing in undivided unpartitioned Property X filed permanant injunction and got temporary injunction in the suit in the year 2014.
Lawer of C,D,E sent notice to Muslim and GrSon A, B in year 2014 that we have preferential right and ready and willing to purchase there sold 2/5th share interest in property, but no suit yet.
The history is as below :
Hindu family, Male Grand Father (GF) and Female Grand Mother having 2 sons S1 and S2
Grand Father died intestate in 1965. Two sons died intestate in 1980 and 1999 respectively.
Grand Father (GF) had self aquired many properties some in karnataka and some in Maharashtra the property named as Property S, T, U, V, W and Grandmother(GM) had property X.
Grandson A and B are real brothers and are sons of S1 residing in Karnataka.
GrandSon C, D and E are real bothers and sons of S2 residing in Property X in Maharashtra.
Hindu family, Female, Grand Mother (GM)
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Property X – Self aquired property of Grand Mother (GM) in Maharshtra
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Bequest by Will to GrandSons in 1969
Grand Mother is desceased in 1978 and
then all grandsons name come to property card.
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Undivided property and jontly transfers shares by will jointly
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GrandSon A GrSon B GrSon C GrSon D GrSon E
In year 2003, family settlement by private arbitrator who are family relative done where arbitrator allocated 1 property each to male grand son out of 5 property S, T, U, V and W one property to each. But property X is allocated to all 5 grandson as it comes by will and mentioned in arbitration settlement document as jointly.
Till today no execution/darkhast and no partition from court.
In year 2016 Muslim filed partition suit for property X purchased from GrSon A & B , in that Grandson C,D and E filed counterclaim that they ready to purchase 2/5 th property on market value under HSA sec.22 preferential right.
Now Muslim lawyer saying in there WS that ,as property bequest by will, HSA sec.22 is not maintainable but Mohammedn law Shufa is applicable and def not followed mandatory provision of Shufa talab as they filed the partition suit and they are co-sharer, so this countercliam need to dismissed by cost.
Till now only exmination-in-chief of Muslim plaintiff is done, issues created by Honr. Judge.
So my question regarding pre-emption is :
Q. 1) Will the suit need to come under HSA sec.22 or Mohammadan law Shufa as property X is of Hindu family and sold to Mulsim family?
Q. 2) The property X is bequested by Will to 5 GrandSon and through arbitrator family settlement allocated to all 5 grandsons.
What is the status of Property X, Self aquired OR ancestral property?Any citation if possible
Q.3) Can GrSon C,D,E allowed to AMEND the counterclaim to add prayer of pre-emption(Partition Act sec. 4) in current preferential HSA sec.22 prayer at current stage where Muslim examination-in-chief is done but cross-examination is pending?
Q.4) Can GrSon C,D,E need to do amendment in CPC Order 6 rule 17 for addition of Partition Act s.4?
OR
Need to amend under any other provision and whether it is allowed after examination-in- chief stage?
Q.5) Can GrSon C,D,E allowed to add/raise prayer of partition act s.4 under CPC s.151 in future Appeal if by chance GrSon C,D,E counterclaim rejected and any partition order/decree of Muslim family allowed? (Any citation if possible)
Please provide us your invaluable suggestion and feedback for the pre-emption issue.
