Continuance of order of temporary injunction would cause hardship and loss to defendant.

R. Banumathi, J.

Seeking to exercise the right of pre-emption, the plaintiff has filed the Suit for a declaration that he has pre-emption right of first option to purchase the Suit schedule property and for a consequential injunction re-straining the defendant from in any manner alienating the Suit schedule property to any Third Party. The applicant/plaintiff has also obtained an ex parte injunction restraining the respondent/defendant from selling/alienating the Suit schedule property. For convenience, the Parties are referred in their original rank in the Suit.

2. The uncontroversial facts are these

.(i) The plaintiff and the defendant are the only two sons/children of their father Late R. Gopalan. The Grandfather of the plaintiff viz., Late Ramachandra Sastri purchased the Suit, schedule property in the year 1918 from the Mambalam Co-op. Society by virtue of a Sale Deed No.2951 of 1918 dated 210. 1918, of an area of 11200 sq.ft. situated at

.T. Nagar, Chennai. After his death, his only son Late R. Gopalan inherited the Suit schedule property.

.(ii) In the year 1981, Late R. Gopalan, the plaintiff and the defendant partitioned the Suit schedule property by virtue of a registered Partition Deed No. 1593 of 1981 dated 23. 1981. The property was divided into two schedules viz., Schedule-I and II. Schedule-I property measuring two grounds and 1040 sq.ft., was allotted to the defendant. Schedule-II property measuring one ground and 2217 sq.ft. was allotted to the plaintiff. Vide the said Partition Deed, late R. Gopalan and his wife G. Rukmani, who are the father and mother of both plaintiff and defendant, were given the absolute right of residence and enjoyment of the whole of the property till their and/or any one of their life time.

(iii) It is one of the conditions amidst various others, laid down in the said Partition Deed. The Suit schedule property, if for any reason sought to be sold by anyone of the parties viz., plaintiff or the defendant, the Party which seeks to sell the Suit schedule property shall give the first option to the other party to purchase the same at the value entered In the Partition Deed or as may be mutually agreed upon.

3. The case of the plaintiff is that he has a legal right to purchase the property as per the recitals in the Partition Deed. The defendant had taken steps to alienate his share to some Third Party without providing the first option of purchase to the plaintiff. There were exchange of communications between the Parties beginning from 30.3.2006 till about October 2006. The communication between the brothers did not fructify and their mother also died on 18. 2007.

4. The plaintiff has alleged that after the death of mother, the defendant is making serious attempts to sell the Suit property to a Third party without complying with the condition of offering the first option to purchase the Suit property to the plaintiff and thereby enabling the plaintiff to exercise his right of pre-emption, which amounts to breach of the terms of the Partition Deed. After issuing the Legal Notice, asserting his pre-emption right to purchase the Suit property the plaintiff has filed the Suit.

5. Resisting the Suit and the Application in O.A. No. 1037 of 2007, the defendant has filed the Counter contending as follows: The plaintiff has commercially exploited the property and did not mend his ways and made the life of the defendant miserable. The defendant had executed a Settlement Deed in respect of undivided half share in favour of his wife on 28. 2002 and 14. 2006. The plaintiff having exercised the right of preemption does not have a prima facie case to seek for enforcement of the right. Though, the exchange of communication began at the earliest in 30.3.2006, the plaintiff had not exercised the right within one year from the said date. The plaintiffs mere expression that he is willing to exercise the pre-emptive right is not sufficient and he has to match the offer, which a Third party has