The appellant was not entitled to preemptive right without filing an application under Sections 2 and 3 of the Partition Act, 1893.

R. MALA, J.

1. The appellant/second defendant has come forward with this Appeal Suit, challenging the decree and Judgment passed by the trial Court in O.S.No.26 of 2010, on the file of learned District and Sessions Judge, Kanyakumari at Nagercoil, on 06.08.2012.

2. Respondents 1 and 2, as plaintiffs, filed a Suit for partition and separate possession for their 2/5 share in the suit property stating that the property originally belonged to one Easwara Pillai. He executed a Gift Deed in favour of his second wife/Jegadhamma and giving life estate to her and vested remainder to children born to both first wife and second wife, Sathia Bama and Jegadhamma respectively. Jegadhamma died. The first wife having one daughter and three sons viz., Sethulekshmi/D1 and Ramachandran, Balakrishnan/P1, Sadhasivan/P2. Ramachandran died. His wife is Chandra/D3. His daughter is 5.Sathia/D4, Son is Chenthil/D5. His predeceased daughter Suja's legal heirs are Sarathy/D6, Sabari/D7 and her husband Saravanan/D8. Since the property is in possession of the defendant/appellant, she filed a Suit for partition and separate possession. Admittedly, the first item of the Suit property is agricultural property and the second item is house property, where the 2nd defendant/appellant is residing. Only the 2nd defendant/appellant herein alone contesting the suit stating that she has purchased 1/5 share from the 1st defendant in 1980 another share of 1/5 from Ramachandran on 22.09.1980. So, totally she is entitled to 3/5 share. Since she is residing in the second item of the suit property and first item of the suit property also in her possession, she wants preemptive right over the suit properties. She further submitted that the properties are incapable of division. Hence, she prayed for dismissal.

3. The 3rd defendant has also filed a written statement. He has no objection for partition.

4. The trial Court after framing necessary issues and considering the oral and documentary evidence adduced on either side, granted the decree of share, in favour of the defendant/appellant. In respect of preemptive right, which she raised in the additional issues, the trial Court held that it has to be decided at the time of final decree proceedings. Against which, the present appeal has been preferred.

5. Though the appellant/2nd defendant preferred the present Appeal Suit against both the items of the suit properties, Mr.V.M.Balamohan Thambi, the learned counsel appearing for the appellant / 2nd defendant advancing his arguments only in respect of second item of the suit property viz., house property. The learned counsel appearing for the appellant/2nd defendant would submit that from the day one, the appellant/2nd defendant is in possession of the Suit property and she is a major share holder and therefore, as per Sections 2 and 3 of Partition Act, 1893, she is entitled to, preemptive right. Adding further, the learned counsel would submit that mere filing of written statement itself is sufficient to grant preemptive right. Advancing his arguments, the learned counsel would submit that petition under Sections 2 and 3 of the Partition Act, is not necessary and that factum was not considered by the trial Court. In support of his contention, the learned counsel relied on the decision of the Hon'ble Supreme Court in R. Ramamurthi Vs. Rajeswararao reported in (AIR 1973 SC 643). Hence, the learned counsel prayed for setting aside the findings in additional issues framed by the trial Court.

6. Per contra, Mr.V.MeenakshmiSundaram, the learned counsel appearing for the respondents 1 and 2/plaintiffs would submit that even though the appellant/2nd defendant herein has not advanced any arguments in respect of first item of the suit property, insofar as agricultural-agricultural property is concerned, he is not entitled to any preemptive right. In support of his contention, th