Judgment 1. THIS is an application under Section 115 of the code of Civil Procedure and is directed against Order No. 65 dated 12th of august 1974 passed by the Subordinate judge, 1st Court, Hooghly, in Misc. Case no. 57 of 1971 by which the petitioner's application under Section 22 of the Hindu Succession Act was rejected. 2. THE opposite party No. 1 filed a suit against the petitioner being Title suit No. 136 of 1969 for partition of the properties. In the said suit the opposite party No. 2 (mother of the petitioner)and the opposite party No. 3 (sister of the petitioner) were made parties. Admittedly, the suit properties belonged to Panchanan Keora, father of the petitioner. In the suit it was asserted that the opposite party No. 1 by virtue of two registered deeds of sale dated April 1, 1968 had purchased the interest of the opposite parties Nos. 2 and 3 in the suit properties and had acquired 23rd interest. But the petitioner did not allow him to possess the properties and hence the suit. During the pendency of the suit the petitioner filed an application under Section 22 of the Hindu Succession act in the same court is claiming preemption on a preferential right to acquire the 2/3rd interest of the opposite party No. 1 and also claiming for a determination of the consideration thereof. It was contended by the petitioner that he was not intimated about the sale and he had no earlier knowledge about the said transfer when on the said application Misc. Case No. 57 of 1971 was started. The opposite party no. 1 filed a written objection. The partition suit, however, was dismissed for default on April 9, 1974. After that an application under Order 9 Rule 4 was filed by the plaintiff and on the said application Mis-Judicial Case No. 62 of 1974 was started and that case is still pending. The learned Subordinate Judge dismissed the petitioner's application under Section 22 of the hindu Succession Act on the ground that the application was not in proper form and the transactions having been completed before the filing of the application, Section 22 of the said Act had no application. Being aggrieved by the aforesaid order, the present application has been filed. 3. MR. Being aggrieved by the aforesaid order, the present application has been filed. 3. MR. Shyamaprasanna Ray Chowdhury, learned Advocate appearing on behalf of the petitioner in the first place submits that learned court ought not to have rejected the application on the ground that it was defective. It ought to have given the petitioner an opportunity to amend the application properly. In support of his contention Mr. Ray Chowdhury refers to a decision reported in 55 C. W. N. 402 in Re : Associated Bank of Tripura Ltd. (in Liquidation) v. Bishnu Pada Chakravarty. In this case it was held "an error as to the form of proceeding which is merely an irregularity can be cured by the Court in the exercise of its inherent jurisdiction by allowing suitable amendments, e. g. where a party files a suit where he ought to have filed an application or files an application where he ought to have filed a suit there is an error only as to the mode of proceeding and the Court can regularise it by treating the plaint as an application or the application as a plaint". 4. IN the second place it is contended by Mr. Ray Chowdhury that the learned Subordinate Judge was wrong to hold that Section 22 of the Hindu Succession Act is not applicable in a case where the transaction has already been completed. It will be useful to quote Section 22 (1) which reads as follows: "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." In support of his contention Mr. Ray Chowdhury refers to a decision reported in 67 C. W. N. 792 Sachindra nath Banerjee and Ors. v. Hari Bhusan banerjee and Ors. In this case the court below found that the application under Section 22 of the Hindu Succession Act was misconceived as the proposal to sell merged into the transaction. Ray Chowdhury refers to a decision reported in 67 C. W. N. 792 Sachindra nath Banerjee and Ors. v. Hari Bhusan banerjee and Ors. In this case the court below found that the application under Section 22 of the Hindu Succession Act was misconceived as the proposal to sell merged into the transaction. The said order was set aside and the learned court below was directed to dispose of the application afresh. It was held "the law of pre-emption refers to sale already effected either under section 4 of the Partition act or under any other law. There has been no right to file an application before the transfer actually takes effect. Section 22 goes a bit further which says there would be a right to pre-empt as soon as there is a proposal for transfer and even before a transfer is actually effected. Therefore, the right of preemption would not cease because the proposal has merged into a transaction. If by a proposal there is a right of preemption, by the transaction it is proved. To do otherwise would be to act against the principles for which the section was enacted and the purpose of the section would be defeated if an interpretation is made that the right of pre-emption is available as long us there is the proposal but lost as soon as the proposal comes into effect and a transaction is achieved. Such a construction should not be made for the simple reason that such construction would defeat the purpose of the act in A.I.R. 1971 Orissa 65 Ganesh Chandra Pradhan v. Rukmani Mohanty and others the same principle has been laid down. It has been observed that from the perusal of the words "proposes to transfer" appearing in sub-section (1) of the section, there appears to be a requirement that it is only when the transferor heirs do not exercise their preferential right conferred under the section, that he would be free to make the transfer to strangers not coming within the fold of the section. Once it is held that such a statutory duty is cast on the transferor-heir, where it is shown that the transferee has purchased the property without notice having been given to the remaining Class I co-heirs, the transfer could still be impugned after it was completed. Once it is held that such a statutory duty is cast on the transferor-heir, where it is shown that the transferee has purchased the property without notice having been given to the remaining Class I co-heirs, the transfer could still be impugned after it was completed. Such an interpretation would not only be in keeping with the true legislative intention, but it would also not work inequitably. Thereby the preferential right would be kept up, the transferor would not have an undue impediment on his right to transfer and the transferee should after being satisfied that the Class I co-heirs have in spite of notice failed to exercise their preferential right of acquisition purchase the property and obtain the same free from the liability under Section 22 of the Act. " Considering the provisions of section 22 of the Hindu Succession Act and the principles laid down in the decisions referred to above I agree with Mr. Ray Chowdhury that the learned subordinate Judge was wrong to hold that the application under Section 22 was not maintainable as in this case the application was filed after the transaction was completed. 5. MR. Dilip Kumar Banerjee, learned Advocate appearing on behalf of the opposite parties, submits that at the time when the order was passed on the application under Section 22 of the Hindu Succession Act the suit was dead and the application having been filed in the suit on which Miscellaneous case was started, no order could have been passed in the said Miscellaneous case. It is true that the application was filed in the pending suit. Section 22 is, however, silent as to the procedure to be adopted when an application is filed. The true import of the section must be that such an application should be treated as an independent application and that being so, the dismissal of the suit cannot prevent the learned Subordinate Judge from proceeding with the application under Section 22. 6. FOR the reasons staled above the order passed by the learned Subordinate judge is set aside. The Rule is made absolute. The learned Subordinate Judge is directed to dispose of the application in the light of the legal position indicated above. He is further directed to afford the petitioner an opportunity to amend the petition if he so likes. There will be no order as to costs. The Rule is made absolute. The learned Subordinate Judge is directed to dispose of the application in the light of the legal position indicated above. He is further directed to afford the petitioner an opportunity to amend the petition if he so likes. There will be no order as to costs. Let the records be sent down immediately. Rule made absolute.