JUDGMENT : Sanjay K. Agrawal, J. 1. Invoking the appellate jurisdiction of this Court under Section 96 of the Code of Civil Procedure , 1908, the two appellants herein (defendants No.1 & 2) have filed this appeal calling in question legality, validity and correctness of judgment & decree dated 29-1-2024 passed by the 10 th Additional District Judge, Bilaspur in Civil Suit No.133A/2021, by which the trial Court has decreed the suit filed by respondent No.1 herein/plaintiff granting declaration of title declaring that the plaintiff is title holder and also possession holder of Sheet No.12 (presently Sheet No.31), area 412.6 sq.ft., and sale deed dated 5-7-2021 (Ex.P-12) executed by defendant No.1 in favour of defendant No.2 is null and void and the defendants are restrained from interfering with the peaceful possession of the plaintiff. (For the sake of convenience, parties hereinafter will be referred as per their status shown and ranking given in the suit before the trial Court.) 2. Following genealogical tree will demonstrate the relationship among the parties:- Plaint Averments 3. The suit land bearing Abadi Land Sheet No.12 (new number 31), 59.13/249240, total 826 sq.ft., was owned by Late Shri Nathulal Gupta and the said land is referred as suit land in the plaint. Nathulal Gupta died on 22-12-2003 leaving behind his son Mulchand Gupta and daughter Geeta Bai Gupta/plaintiff. He bequeathed his suit property by Will dated 17-6-2003 (Ex.P-8) equally to his son & daughter as shown in the map attached with the Will. Execution and attestation of Will is admitted by the plaintiff and the defendants and there is no dispute between them about execution and attestation of Will. The Will Ex.P-8 contains a stipulation that (1) Mulchand (now deceased) – son of Nathulal Gupta, (2) Geeta Bai Gupta – daughter of Nathulal Gupta i.e. the plaintiff, (3) Omprakash Gupta (now deceased) – husband of Geeta Bai Gupta i.e. son-in-law of Nathulal Gupta, (4) Pradeep – son of Geeta Bai Gupta, and (5) Gopal – son of Geeta Bai Gupta, all five persons, will have no right to alienate the suit property in future. Mulchand Gupta died issue-less on 8-5-2014 (Ex.P-9) and thereafter, his wife Mohani Bai Gupta – defendant No.1, shifted to her parental house at Pendra-Bilaspur and thereafter, dispute arose with regard to the property held by him leading to filing of suit by the plaintiff (Geeta Bai Gupta) for declaration of title with regard to the portion held by her brother Mulchand Gupta i.e. 412.6 sq.ft. since Mulchand Gupta & defendant No.1 both were issue-less and therefore in his lifetime, Mulchand Gupta had given his share of land in the suit property to the sons of the plaintiff namely, Pradeep & Gopal and thus, the plaintiff is in exclusive possession of the suit land and wife of Mulchand had left to Pendra delivering the possession of the suit property to the plaintiff. After death of Mulchand Gupta, defendant No.1 has no right over the suit property in terms of Will dated 17-6-2003 (Ex.P-8), however, before the date of filing plaint, 412.6 sq.ft. of land was sold to defendant No.2 by sale deed dated 5-7-2021 (Ex.P-12) executed by defendant No.1 for which defendant No.1 has no title over the suit property, therefore, the plaintiff be declared title holder and possession holder of the portion of the land held by her brother Mulchand Gupta and sale deed dated 5-7-2021 (Ex.P- 12) be declared null and void and the defendants be restrained from interfering with the possession of the suit property. Written Statement 4. Defendants No.1 & 2 have jointly filed written statement stating inter alia that the suit property was held by Mulchand Gupta, husband of defendant No.1, which was given by her father-in-law Nathulal Gupta vide Ex.P-8 and which was held by defendant No.1 after death of her husband Mulchand Gupta, and the said property has been sold by defendant No.1 by registered sale deed dated 5-7-2021 to defendant No.2. It has been specifically pleaded that Will dated 17-6-2003 (Ex.P- 8) only restrains five persons excluding the legal representative(s) of Mulchand Gupta from alienating the suit property and therefore defendant No.1 has right to alienate the suit property and it has rightly been alienated and possession has been handed-over to defendant No.2. It has been specifically pleaded that Will dated 17-6-2003 (Ex.P- 8) only restrains five persons excluding the legal representative(s) of Mulchand Gupta from alienating the suit property and therefore defendant No.1 has right to alienate the suit property and it has rightly been alienated and possession has been handed-over to defendant No.2. Since the sale deed has been executed by defendant No.1 on 5-7- 2021 and the suit has been filed on 16-8-2021, the plaintiff has no preemptive right to acquire the suit property and as such, the suit deserves to be dismissed. Issues framed by the trial Court 5. The trial Court upon pleadings of the parties, framed the following issues and recorded the following findings therein: - Ø- okniz’u fu"d"kZ 1- D;k okfnuh oknxzLr laifRr vkcknh Hkwfe 'khV uacj& 12 ¼orZeku 31½ 412-6 oxZQqV Hkwfe dh ,dek= Lokeh ,oa vkf/kiR;/kkjh gS\ Þizekf.krAÞ 2- D;k izfroknh Ø-1 }kjk izfroknh Ø-2 ds i{k esa fu"ikfnr foØ; i= fnukad 05-07-2001 izkjEHkr% 'kwU; ,oa vf/kdkfjrkfoghu nLrkost gS\ Þizekf.krAÞ 3- D;k okfnuh] izfroknhx.k ds fo:) okfnuh ds 'kkafriw.kZ vkf/kiR; esa O;o/kku mRiUu u djus dh LFkk;h fu"ks/kkKk izkIr djus dh vf/kdkjh gS\ Þizekf.krAÞ 4- D;k okfnuh }kjk okn dk mfpr ewY;kadu dj mfpr U;k;’kqYd pLik fd;k x;k gS\ Þizekf.krAÞ 5- D;k lgk;rk ,oa okn\ df.Mdk& 23 ds vuqlkj okfnuh dk okn Lohdkj fd;k x;kA Findings of the trial Court 6. The trial Court upon appreciation of oral and documentary evidence, held that the plaintiff has become title holder of the suit land which was held by her brother Mulchand by Will dated 17-6-2003 (Ex.P-8) and she is also the possession holder and the sale deed executed by defendant No.1 in favour of defendant No.2 is dead for two reasons, firstly, alienation has been made in violation of terms expressly provided in Will dated 17-6-2003 and secondly, the plaintiff has preemptive right to acquire the suit property in terms of Section 22(1) of the Hindu Succession Act , 1956. The trial Court has further held that it has not been proved that defendant No.1 is in possession of the suit property. 7. Feeling aggrieved and dissatisfied with the impugned judgment & decree dated 29-1-2024, the appellants herein/defendants No.1 & 2 have preferred this appeal. Submissions on behalf of Defendants No.1 & 2/ Appellants 8. Mr. Shobhit Koshta, learned counsel appearing for the appellants herein/defendants No.1 & 2 would submit as under: - 1. 7. Feeling aggrieved and dissatisfied with the impugned judgment & decree dated 29-1-2024, the appellants herein/defendants No.1 & 2 have preferred this appeal. Submissions on behalf of Defendants No.1 & 2/ Appellants 8. Mr. Shobhit Koshta, learned counsel appearing for the appellants herein/defendants No.1 & 2 would submit as under: - 1. The condition restraining alienation by way of Will dated 17-6-2003 (Ex.P-8) is void by virtue of Section 10 of the Transfer of Property Act , 1882 and in alternative, he would submit that the testator of the Will namely, Late Nathulal Gupta, though restrained his son Mulchand Gupta; his daughter Geeta Bai Gupta; his son- in-law and husband of Geeta Bai Gupta namely, Omprakash Gupta; his two grand-sons i.e. sons of Geeta Bai Gupta & Omprakash Gupta namely, Pradeep & Gopal, all five persons, from alienating the suit property, but did not restrain legal representative(s) of Mulchand Gupta from alienating the suit property, therefore, that condition being inapplicable to defendant No.1, the decree of the trial Court in this regard is liable to be set aside. 2. Section 22(1) of the Hindu Succession Act , 1956 would not apply to the concluded transfer, as transfer has already been made on 5-7-2021, whereas the suit has been filed on 16-8-2021 and right of preemption was not available to the plaintiff. 3. The Will is undisputed and defendant No.1 was staying in the suit house along with her husband Mulchand and after death of Mulchand, for the time being, she shifted to Pendra that would not mean that she had lost her possession over the suit property, therefore, the finding recorded in this regard is liable to be set aside and the appeal be allowed by setting aside the impugned judgment & decree. Submissions on behalf of the Plaintiff/Respondent No.1 9. Mr. Submissions on behalf of the Plaintiff/Respondent No.1 9. Mr. Ratnesh Kumar Agrawal, learned counsel appearing for respondent No.1 herein/plaintiff, would submit that the trial Court is absolutely justified in granting decree in favour of the plaintiff, as on account of love and affection Mulchand Gupta, during his lifetime, since he was issue-less, has given the property to the sons of the plaintiff and he was residing in the suit house on his exclusive right and since defendant No.1 had already shifted to her parental home at Pendra, therefore, she has lost her possession and title over the suit property and as such preferential right is also well merited and there is a condition in the Will with regard to alienation. In that view of the matter, the trial Court is absolutely justified in granting decree in favour of the plaintiff. He would further submit that the testator has on account of nature of property, as it also involves joint rights of the two families, directed not to alienate the suit property. As such, the appeal deserves to be dismissed. 10.We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost circumspection. Analysis 11. In view of the provisions contained in Order 41 Rule 31 of the Code of Civil Procedure , 1908, in this appeal, the points for determination arise as under: - 1. Whether the finding recorded by the trial Court that the plaintiff is title holder and possession holder of the suit land, is the correct finding? 2. Whether the finding of the trial Court holding that the condition enumerated in the Will dated 17-6-2003 (Ex.P-8) is applicable to defendant No.1, is the correct finding? 3. Whether the plaintiff has right of preemption over the suit property by virtue of Section 22(1) of the Hindu Succession Act , 1956? Answer to Question No.1: - 12.As already stated in the opening paragraph of the judgment, it is not in dispute that the suit property was originally held by Late Nathulal Gupta who died on 22-12-2003 bequeathing the suit property equally (50% each) in favour of his son Mulchand Gupta, who died on 8-5-2014, and his daughter Geeta Bai Gupta – plaintiff. Mulchand Gupta was issue-less. Mulchand Gupta was issue-less. 13.It is the case of the plaintiff that Mulchand Gupta, as pleaded in paragraph 4 of the plaint, was issue-less and on account of love and affection, during his life-time, he had given his interest over the suit property to the plaintiff and her two sons and thereafter, after death of Mulchand, his wife defendant No.1 shifted to her parental house at Pendra and started residing therein. Mulchand Gupta had already given the property of his share to the plaintiff and her family and handed-over the possession, thereby the plaintiff is continuing in possession of the said property. However, admittedly, half portion of the total property i.e. 412.6 sq.ft. land as shown in the map attached with the Will (Ex.P-8) was given to Mulchand, but there is no document brought on record by the plaintiff by which Mulchand has allegedly given his share of the suit property in favour of the plaintiff and thus, no evidence has been brought on record to establish that Late Mulchand had given his share of the property in favour of the plaintiff. Furthermore, the plaintiff claimed right of preemption that would amount to acknowledging the title of defendant No.1 in the suit property. In that view of the matter, the finding recorded by the trial Court that Mulchand had given his property to the plaintiff and the plaintiff has become owner of the said property is the finding which is perverse on the face of record and we hereby decline to affirm the finding that the plaintiff has become title holder and possession holder of the suit property held by Mulchand to the extent of 412.6 sq.ft. as shown in the Will dated 17-6-2003 (Ex.P-8). Answer to Question No.2:- 14.Admittedly, the Will Ex.P-8 contains a restraint stipulation. Testator of the Will Late Nathulal after giving equal share of his property to his son Mulchand and his daughter Geeta Bai, has clearly stated in the Will that neither his son Mulchand nor his daughter Geeta Bai, his daughter’s husband Omprakash and sons of his daughter namely, Pradeep & Gopal would have any right to alienate the suit property, but the Will does not prohibit the legal representative(s)/wife of Mulchand to alienate the suit property. However, the trial Court has held that in order to maintain the property and protect the nistar rights of the parties, defendant No.1 – wife of Mulchand had no right to alienate the suit property. It has been submitted by learned counsel for defendant No.1 that by virtue of Section 10 of the Transfer of Property Act , 1882, such a condition is void. Section 10 is the condition restraining alienation of the property and Section 5 defines “transfer of property”. Section 10 of the Transfer of Property Act , 1882 states as under: - “ 10. Condition restraining alienation .—Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him: Provided that property may be transferred to or for the benefit of a women (not being a Hindu, Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein.” 15.In the matter of State of W.B. and another v. Kailash Chandra Kapur and others, (1997) 2 SCC 387 the Supreme Court has held that transfer connotes, normally, between two living persons during life; Will takes effect after demise of the testator and transfer in that perspective becomes incongruous. 16.Similarly, in the matter of Mahadeo (dead through legal representatives) v. Shakuntalabai , (2017) 13 SCC 756 the Supreme Court relying upon the decision in Kailash Chandra Kapur’s case (supra) has held that devolution of property by way of a will does not amount to a transfer of the property, as it has been held in Kailash Chandra Kapur’s case (supra) that normally, transfer connotes between two living persons during life, however, a will takes effect after demise of the testator and transfer in that perspective becomes incongruous. 17.Similar is the position held by the Supreme Court in the matter of S. Rathinam alias Kuppamuthu and others v. L.S. Mariappan and others, (2007) 6 SCC 724 . 17.Similar is the position held by the Supreme Court in the matter of S. Rathinam alias Kuppamuthu and others v. L.S. Mariappan and others, (2007) 6 SCC 724 . 18.In the matter of Suraj Lamp and Industries Private Limited (2) through Director v. State of Haryana and another , (2012) 1 SCC 656 it has been held by their Lordships of the Supreme Court that Will is not a transfer inter vivos. 19.As such, in light of the decisions of the Supreme Court in Kailash Chandra Kapur’s case (supra), Mahadeo (supra) and S. Rathinam alias Kuppamuthu (supra), it is quite vivid that Will is not a transfer of property for the purpose of Section 10 of the Transfer of Property Act , 1882, therefore, in case of Will, the provisions contained in Section 10 will not apply. However, it is the categorical pleading of the defendants in paragraph 6 of the written statement that the testator has firstly restrained his son Mulchand, his daughter Geeta Bai, his daughter’s husband Omprakash and his grand- sons Pradeep & Gopal, all five persons, from alienating the property, but, however, the testator did not make any stipulation with regard to alienation/non-alienation by wife of Mulchand/legal representative(s) of Mulchand and, therefore, the trial Court is absolutely unjustified in holding that there was prohibition in alienation of the suit property by defendant No.1, as defendant No.1 has succeeded the suit property after death of her husband Mulchand by way of succession. As such, the condition stipulated regarding non- transfer of suit property would not be applicable to defendant No.1 Smt. Mohani Bai Gupta and the finding recorded by the trial Court in this regard is contrary to the facts of the case and evidence available on record. Answer to Question No.3: - 20. The trial Court has further held that the plaintiff has preemptive right towards the suit property in light of Section 22(1) of the Hindu Succession Act , 1956. 21. In this regard, it would be appropriate to notice Section 22(1) of the Hindu Succession Act , 1956, which states as under: - “ 22. Answer to Question No.3: - 20. The trial Court has further held that the plaintiff has preemptive right towards the suit property in light of Section 22(1) of the Hindu Succession Act , 1956. 21. In this regard, it would be appropriate to notice Section 22(1) of the Hindu Succession Act , 1956, which states as under: - “ 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.” 22. A careful perusal of Section 22(1) of the Hindu Succession Act , 1956 would show that Section 22 is concerned about the preferential right to acquire property in certain cases. Sub- section (1) of Section 22 uses the expression “proposes to transfer his or her interest in the property”. Section 22(1) speaks of preferential right to acquire the interest proposed to be transferred and it talks of “contemplated transfer” and not of “concluded transfer” or “transfer already effected”. As such, right to acquire preferential right is conceived as a right exercisable at a stage where one of the heirs of the deceased proposes to transfer his or her interest in the property left by the deceased Hindu dying intestate. 23. The M.P. High Court in a decision rendered in the matter of Ghewarwala Jain v. Hanuman Prasad and another, AIR 1981 Madhya Pradesh 250 has held that Section 22(1) of the Hindu Succession Act , 1956 can be invoked when any of such heir proposes to transfer his or her interest and it is not applicable in case of concluded transfer or transfer which has already been effected. Paragraphs 7, 8 and 9 of the report state as under: - “7. The title of this Section indicates that it concerns itself with 'preferential right to acquire property in certain cases. In sub-section (1) the expression used is "proposes to transfer". Paragraphs 7, 8 and 9 of the report state as under: - “7. The title of this Section indicates that it concerns itself with 'preferential right to acquire property in certain cases. In sub-section (1) the expression used is "proposes to transfer". Accordingly, when the legislature talks of preferential right to acquire the interest "proposed to be transferred" in sub-section (1) of Section 22, it talks of a "contemplated transfer" and not of "concluded transfer" or "transfer already effected." The right to acquire preferentially the interest is conceived as a right exercisable at a stage where one of the heirs of the deceased proposes to transfer his or her interest in the property or business left by the deceased Hindu dying intestate. Acceptance of the contention that Section 22(1) of the Act creates a preferential right to acquire the interest already transferred will involve re-writing thereof. This is not permissible on any established principle of construction of statutes. 8. Sub-section (2) of Section 22 of the Act provides for a cheap and speedy remedy for determination of 'consideration', for which any interest in the property or business of the deceased "may be transferred under the Section". The sub-section (2) of Section 22 of the Act does not create any right wholly independent of that created by sub-section (1) of Section 22. It is only where the other heirs of the deceased have a preferential right to acquire under sub-section (1) of Section 22 that an application for determination of the consideration has to be moved in the Court specified in the Explanation appended to the section. 9. In view of the aforesaid discussion, an application under Section 22(2) of the Act cannot be regarded to be maintainable after 'transfer' has been effected. It is maintainable only at a stage where transferor heir proposes to transfer his or her interest in the property. ...” 24. The Supreme Court in the matter of Radhakishan Laxminarayan Toshniwal v. Shridhar Ramchandra Alshi and others, AIR 1960 SC 1368 (Constitution Bench) has held that the right of preemption is a weak right and is not looked upon with favour by courts and therefore the courts cannot go out of their way to help the preemptor. ...” 24. The Supreme Court in the matter of Radhakishan Laxminarayan Toshniwal v. Shridhar Ramchandra Alshi and others, AIR 1960 SC 1368 (Constitution Bench) has held that the right of preemption is a weak right and is not looked upon with favour by courts and therefore the courts cannot go out of their way to help the preemptor. Paragraph 12 of the report states as follows: - “(12) … The right to pre-empt the sale is not exercisable till a pre-emptible transfer has been effected and the right of pre-emption is not one which is looked upon with great favour by the courts presumably for the reason that it is in derogation of the right of the owner to alienate his property. It is neither illegal nor fraudulent for parties to a transfer to avoid and defeat a claim for pre-emption by all legitimate means. In the Punjab where the right of pre-emption is also statutory the courts have not looked with disfavour at the attempts of the vendor and the vendee to avoid the accrual of right of pre-emption by any lawful means and this view has been accepted by this court in Bishan Singh v. Khazan Singh, 1959 SCR 878 at p. 884: (AIR 1958 SC 838 at p. 841), where Subba Rao, J. observed : "The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place ".” 25. One of us (Sanjay K. Agrawal, J.) in the matter of Vidyanand Soni (Died) Through LRs v. Prembati (Died) Through LRs and another, 2019 SCC OnLine Chh 220 has held that once the partition is complete, the preferential right under Section 22(1) of the Hindu Succession Act , 1956 is not available and the applicability of Section 22(1) is limited to a time period when the interest which is ought to be transferred by one of the co- heirs is incomplete i.e. the proposal to transfer is still pending or yet to complete. 26. 26. Reverting to the facts of the present case in light of the principles of law laid down by the judgments of the Supreme Court and the M.P. High Court in the above-cited judgments (supra), it is quite vivid that the suit property was alienated by defendant No.1 in favour of defendant No.2 on 5-7-2021 and thereafter, the suit was filed on 16-8-2021 for declaration of title and permanent injunction. Therefore, once the suit property had already been alienated by defendant No.1 in favour of defendant No.2, right of preemption would not be available to the plaintiff. In that view of the matter, the trial Court is absolutely unjustified in holding that the plaintiff had the preemptory right over the suit property as on the date of filing of suit. Conclusion 27. In view of the aforesaid findings, we hereby hold that the trial Court is absolutely unjustified in deciding issues No.1 to 4 in favour of the plaintiff and against the defendants. Consequently, the appeal is allowed and the impugned judgment & decree passed by the trial Court are hereby set-aside. The suit is dismissed. No order as to cost(s). 28. Decree be drawn-up accordingly.