P SRINIVASAMURTHY Vs. P LEELAVATHY

JUDGEMENT

(1.) These appeals have been field against the orders of the learned single Judge in C.S. No. 799 of 1996 and Application No. 2458 of 1998. The appellant is the plaintiff in C.S. No. 799 of 1996. The suit was filed seeking a declaration that the plaintiff is entitled to the preferential right to purchase and acquire the interest of the defendants 1 to 6 and also for declaration that the sale deed dated 29-1-1996 executed by the defendants 1 to 6 in favour of the seventh defendant is not valid and not binding upon the plaintiff, and also for a direction to the defendants to execute the sale deed in respect of the suit property in favour of the plaintiff and put the plaintiff in possession of the shares of defendants 1 to 7 in the suit property.

(2.) The main allegations in the plaint are the suit property consisting of ground and premises bearing door No. 20, Ravanier Street, Park Town Chennai, originally belonged to one Subramania Achari. The said Subramani Achari died intestate on 24-4-1972 leaving behind him, his wife,a son born through his first wife and children born to him and the second wife. The first defendant is the second wife of Subramania Achari and the defendants 3 to 6 and the plaintiff are all children born to said Subramamia Achari and the first defendant. The second defendant is the son born to the first wife. The suit property has devolved upon the plaintiff and the defendants 1 and 6 and each of them is entitled to 1/7 share. While so, the second defendant field the suit G.S. No. 1933 of 1989 on the file of the City Civil Court, Madras, for partition and separate possession of his share, and a preliminary decree was passed in the suit on 9-3-1993 holding that the second defendant is entitled to 1/7 share, and other legal heirs are entitled to the balance of 6/7 share. The second defendant has filed an application for final decree in pursuance of the preliminary decree and he is taking steps to have division of his share effected. The plaintiff is entitled to 1/7 share which has been upheld by the preliminary decree in the partition suit. The defendants 1 to 6 have joined together to deprive the plaintiff of the suit property and sold their shares in the suit property to the seventh defendant, who is an utter stranger to the family by a sale deed dated 29-1-1996. The sale deed is contrary to the provisions of Section 22 of the Hindu Succession Act. The plaintiff has got preferential right to acquire the interest of the defendants 1 to 6 and 7th defendant cannot get title to the property disregarding the rights of the plaintiff. The plaintiff is ready and willing to purchase the share of the defendants 1 to 6 for the consideration to be fixed by this Court. Hence the suit.

(3.) The second defendant has filed an application No. 2458 of 1998 praying for dismissal of the suit, contending that the plaintiff has got 1/7th share in the suit property , the defendants have got remaining 6/7 share in the suit property which have been declared in O.S. No. 1933 of 1989, that the defendants 1 to 6 found it difficult to reside in the property on account of large number of members of the family and therefore, the defendants 1 to 6 decided to sell the property and requested the plaintiff to join and sell the property in its entirety to the seventh defendant, that the plaintiff was unwilling to vacate the portion in his occupation, that the plaintiff wanted to retain that portion of the property and suggested that the other portion may be sold and proceeds divided among the defendants 1 to 6. The plaintiff was put on notice of the proposed sale of the shares of these defendants before effecting sale in favour of the seventh defendant, that the plaintiff sent a letter dated 4-1-1995 expressing his inability to purchase and retain the entire property and suggested the sale of back portion of the property, that the proposed sale was informed to the plaintiff on 5-9-1994 by registered post, that the proposal was notified to the plaintiff after preliminary decree for partition was granted on 9-3-1993, that the sale of 6/7 shares by the defendants 1 to 6 in favour of the seven defendant was effected as early as 29-1-1996, that the present suit has been filed claiming preferential right under Section 22 of the Hindu Succession Act, after a long delay that the plaintiff has also filed O.S. No. 1053 of 1996 in the City Civil Court, Madras, for injunction, that the plaintiff ought to have exercised right of preferential purchase before the contemplated transfer, that once the sale has been effected the plaintiff is not entitled to challenge the same and the suit itself is not maintainable.