CRP NPD No.354 of 2013

1. This revision is directed against the order dated 09.11.2012 passed in I.A.No.147 of 2011 in I.A.No.746 of 2007 in O.S.No.123 of 2005 by the I Additional Sub Court, Coimbatore.

2. The petitioner had instituted the suit O.S.No.123 of 2005 on the file of the First Additional Sub Judge, Coimbatore against the respondents 1 to 6 for partition claiming 1/6th share by metes and bounds. After contest, the trial court passed a preliminary decree. Thereupon, the defendants 1 to 5 filed I.A.No.746 of 2007 for passing final decree. When the application was pending, the petitioner filed I.A.No.147 of 2011 under Sections 2, 3, 4 and 5 of Partition Act and 151 of CPC seeking for permission to purchase the sharers of the respondents 1 to 5 for the value of Rs.4,25,000/- or any value which the court may deem it fit and proper for the petition property and for direction to the respondents 1 to 5 to sell their 5/6th shares in the property of the petitioner.

3. The petitioner has averred in the affidavit filed in support of the petition that the trial court has decreed the suit in part and dismissed in respect of some of the properties by a decree dated 07.11.2006. Aggrieved by the order, the petitioner has filed an appeal in A.S.No.26 of 2007 and in the meanwhile, the respondents 1 to 5 filed I.A.No.746 of 2007 for passing of final decree. On 14.03.2007, the respondents 1 to 5 had given a registered power of attorney in favour of one Tamilselvi. Based on the power of attorney, the agent had executed a registered sale agreement with wife of the sixth respondent on 22.03.2007 agreeing to sell the undivided 5/6th share for Rs.4,25,000/-.

4. The petitioner has further stated that the property is a residential house alongwith two shops which is incapable of division amongst themselves. By the sale agreement, the respondents have shown their intention to sell their undivided share to the third party who belongs to a different community. As a co-owner, she has got a right of pre-emption to purchase the undivided share of the respondents. Since the property belonged to her paternal grandfather and she is the only sharer living in the suit property, she has got a very great sentimental attachment towards the suit property, that she is very particular that the property should be retained within their family and should not go out of the family.

5. The application was resisted by the respondents by filing a counter stating that the period of sale agreement was over and thereby there was no sale deed effected so far and as such, the petitioner is not entitled to seek for the relief directing the respondents 1 to 5 to sell 5/6th share to the petitioner; that the Advocate Commissioner was already appointed in final decree proceedings who in turn submitted his report alongwith surveyor for division of the suit property which would amply prove that the property is divisible; that the petitioner, at no point of time evinced interest to purchase the share of the respondents though the agreement of sale was entered on 22.03.2007 and the respondents 1 to 5 had no intention to sell the property to the petitioner and also there is no pre-emptive agreement between them and hence the present petition compelling the respondents 1 to 5 to sell their share to the petitioner is against constitutional law and the petition seeking such direction can only be filed when the purchaser filed a suit for partition and therefore the present petition is unsustainable in law.

6. The trial court, following the decision of the Hon'ble Supreme Court in Gautam Paul v. Debi Rani Paul reported in AIR 2001 SC 61 held that the petition is not maintainable. Aggrieved by the order, the petitioner has filed revision petition in CRP NPD No.354 of 2013.

CRP NPD No.3979/2013 :

7. This revision arises out of the order dated 17.07.2013 made in I.A.No.193 of 2013 in I.A.No.746 of 2007 in O.S.No.123 of 2005 on the file of I Additional Sub Court, Coimbatore.

8. When the abov