N MANICKAM Vs. KANAGARAJ

JUDGEMENT

(1.) The plaintiff in O.S. No. 1128 of 1997 on the file of the I Additional Sub Court, Coimbatore is the revision petitioner. The plaintiff/revision petitioner filed the above suit for partition against his brother the first respondent for dividing the property and to allot half share. The suit was decreed on 11.4.2000. Thereafter, the first respondent herein filed I.A.No.932 of 2007 on the file of the I Additional Sub Court, Coimbatore for passing final decree in terms of the preliminary decree and during the pendency of the said application, the first respondent herein sold his undivided half share to respondents 2 and 3 by a registered sale deed dated 27.5.2008 for valuable consideration and filed I.A.No.333 of 2008 in I.A.No.932 of 2007 to implead the subsequent purchasers as respondents 2 and 3 and that was ordered as prayed for. Thereafter, the revision petitioner filed I.A.No.332 of 2008 under section 5 of the Partition Act seeking permission of the court to exercise the right of pre-emption to purchase the undivided share of the first respondent herein stating that the first respondent had sold his undivided share to respondents 2 and 3 and therefore, he is entitled to exercise the right of pre-emption. The revision petitioner also filed I.A.No.442 of 2008 in I.A.No.932 of 2007 under sections 2 and 3 of the Partition Act seeking permission of the court to purchase the property that was allotted to the first respondent by depositing the value in court as mentioned in the sale deed executed by the first respondent in favour of respondents 2 and 3.

(2.) The learned I Additional Sub Judge, Coimbatore dismissed both the applications holding that only after appointment of advocate commissioner and after verifying whether the suit property is a residential house or non-residential premises and whether the property can be divided into two halves, the right of preemption can be decided and as the first respondent had already sold his undivided share to respondents 2 and 3, the right of pre-emption claimed by the revision petitioner cannot be granted. Aggrieved by the same, these two revisions are filed.

(3.) Mr. Subbiah, learned counsel for the revision petitioner submitted that under section 22 of the Hindu Succession Act, when a property is devolved upon two or more heirs specified in class I to schedule and if one of such heirs proposed to transfer his or her interest in the property or properties, the other heirs shall have a preferential right to acquire the rights proposed to be transferred and for exercising the right, it is not necessary that the application must be filed before the sale by other sharers and the application can be filed even after the sale executed by the other sharers in favour of a stranger and in this case, the suit property devolved on the revision petitioner and the first respondent and each of them are entitled to undivided half share in the suit property and as such, the revision petitioner has got a right to purchase the interest of the other co-sharer who has sold the property to a stranger and for that purpose only, the application in I.A.No.332 of 2008 was filed and as per the provisions of sections 2 and 3 of the Partition Act, 1893, one of the co-sharers is entitled to apply for sale and without properly appreciating the provisions of sections 22 and 2 and 3 of the Partition Act, the court below dismissed the application. He also relied upon the judgment in Nagammal v. Nanjammal, 1970 1 MadLJ 358. and Srinivasamurthy, P v. Leelavathy. P,2002 2 CTC 325.