Plaintiff cannot be said to have waived her right of pre-emption.

1. The unsuccessful 3rd defendant before the courts below has filed this Second Appeal.

2. The plaintiff filed the suit in O.S.No.106 of 1987 to enforce her right of specific performance by directing the defendants to execute the sale deed in respect of 2?3 share in the suit properties in favour of the plaintiff.

3. The suit properties originally belonged to one Madasami Chettiar who died in 1963 and he purchased the same under the sale deed dated 3.7.1944, marked as Ex.A1. He died leaving his wife Sankarammal (1st defendant), and daughters, Meenakshi ammal (plaintiff) and Muppidathi ammal (2nd defendant). The 1st defendant/mother conveyed the entire suit properties to the 3rd defendant who is none other than the brother of her husband Madasami Chettiar under the sale deed Ex.B1 (marked as Ex.A2 also), dated 6.10.86 . According to the plaintiff, she claimed H share in the suit properties by issuing notice to defendants 1 and 2 under Ex.A4, dated 29.9.86. Thereafter she filed O.S.No.112 of 1986 for partition of her ^ share and a preliminary decree for partition and separate possession of the plaintiff’s 1?3 share in the suit properties was passed on 18.11.1987 on the basis of the endorsement made by the 3rd defendant to the effect that he has no objection to decree the suit in respect of the 1?3 share of the plainti ff. The 2nd defendant had also executed a release deed under Ex.B2 dated 4.2.87 (also marked as Ex.A3) in favour of 3rd defendant and on 24.8.87, plaintiff filed the present suit claiming right of pre-emption recognised under Sec.22 of the Hindu Succession Act 1926, hereinafter called 'The Act'.

4. The 3rd defendant filed written statement stating that since plaintiff had filed a suit for partition of her 1?3 share alone, the suit claiming right of pre-emption was hit under the provisions of Order 2, Rule 2, C.P.C., and the claim is time barred.

5. The trial court which dealt with both the suit filed by the plaintiff in O.S.No.106 of 1987 and the Application in I.A.No.136 of 1988 filed by the 3rd defendant to pass final decree as per the preliminary decree passed in O.S.No.112 of 1986, accepting the case of the plaintiff decreed the suit holding that plaintiff is entitled to get the sale deed in respect of her 2^ share and rejected the application filed by the 3rd defendant in I.A.No.136 of 1988. Aggrieved, 3rd defendant filed appeal in A.S.No.31 of 1990 against the decree in O.S.No.106 of 1987. The learned District Judge also concurred with the findings of the trial court and dismissed the Appeal. Hence this Second Appeal.

6. The substantial questions of law that were framed in this Second Appeal are:- 1)Whether the 1 st respondent is not by her conduct, estopped from enforcing her alleged preemptive right?

(2)Whether the 1 st respondent can get over the decree in O.S.No. 112 of 1986, sub Court, Tenkasi, made during the pendency of the present suit, in her presence?

(3)Whether the present suit is not barred by res judicata?

(4) Whether the present suit is not barred under the provisions of Order II,Rule 2, C.P.C.?

(5)Whether, in any event, the Courts below were right in adopting the plaint valuation for fixing the market value of the suit properties, especially in the light of the valuation of the present properties in O.S.No. 112 of 1986, Sub Court, Tenkasi?

7. It is not in dispute that plaintiff has got statutory right of pre-emption under Sec.22 of the Act. The only defence to deny such a right of the plaintiff, defendants have come forward with the plea that plaintiff did not come forward with such a claim immediately and she filed the suit for partition in O.S.1 12 of 1986 without claiming such a right and thereby she waived her right and so she is estopped from claiming the said right in the present suit, though plaintiff knew about the sale in favour of 3rd defendant under Ex.B1.

8. To appreciate the said issue, it is beneficial to extract Sec.22 of the Act which reads as follows:-

"22.Prefe