C RAJVEL Vs. C MUTHUSAMY

JUDGEMENT

(1.) AGGRIEVED by the order of dismissal of Interlocutory Application filed for amendment of the Plaint, the plaintiff has preferred this revision.

(2.) THE revision petitioner who is the plaintiff has filed the suit for partition and separate possession. Pending the suit he filed the Interlocutory Application for amending the prayer of the Plaint contending that from the written statement he came to know that the defendant had entered into a sale agreement with the one K.Balakrishnan regarding his common half share in the family properties. According to him, as per Section 22 of the Hindu Succession Act, the plaintiff is having the preferential right to acquire the common half share o the defendant and he is also ready to purchase the same. But the defendant is refusing to sell his half share to him. So the Plaint has to be suitably amended for directing the defendant to sell his half share in the suit property to the plaintiff and to execute a sale deed, register it and deliver possession of the same.

(3.) LEANED counsel for the revision petitioner contended that the defendant in his written statement stated that he has no objection for partition by metes and bounds and he has also averred that he is intending to sell his undivided share to one K.Balakrishnan. In such circumstance, the plaintiff is having the preferential right over the other half share kept by the defendant. According to him the judgment relied on by the trial court in AIR 1975 Patna 336 to hold that right of preemption is not available when property devolved by survivorship is not applicable to the facts of the present case since in the said case there had been a separation between the parties before the sale deed was executed and no application as made under Section 212 of the Hindu Succession Act. Likewise the decision reported in 1981 Rajasthan 16 to hold that the agricultural property is not subjected to such preemptive rights. Because, a plain reading of the Section states that a interest in any immovable property is proposed to be sold by any heir, other heirs shall have a preferential right to acquire the interest. Immovable property as per the decision of the Apex Court reported in AIR 1976 SC 1813 shall include land, benefits arising out of land and things attached to the earth. Section 3 of the General Clauses Act defines immovable property includes the land. Therefore, Section 22 will certainly include agricultural land as well.