The main legal point established in the judgment is the interpretation and application of the right of pre-emptive purchase under the Partition Act, 1893 in the context of a dwelling house.

JUDGMENT :

Prayer: Appeal Suit has been filed under Section 96 of the Civil Procedure Code against the judgment and decree dated 19.03.2008 made in O.S.No.248 of 2007 on the file of the I Additional District Court, Erode.

1. This appeal filed by the first defendant, aggrieved by the judgment and decree passed by the trial Court in the suit filed for partition.

2. The brief facts of the case is as under:-

The suit property belongs to the joint family consisting of Periyasamy and his two sons viz. P.Madhanmohan and A.P.Pushpanathan. The said Periyasamy and A.P.Pushpanathan borrowed money from a Private Finance Concern by name, R.A.N.Muthusamy Mudaliar Chit Funds. For the unpaid debt, the said Chit Funds Company obtained award against Periyasamy and A.P.Pushpanathan in C.C.No.3 of 1993 before the Registrar of Chits, Erode. Based on the award, Execution Proceedings was initiated. The suit property was put to the Court auction. One Venkatesan was the successful bidder in the auction held on 22.06.1995. Sale was confirmed on 22.08.1995 for consideration of Rs.3,90,500/-. The sale certificate was issued in favour of A.Venkatesan. In E.A.No.221 of 1997 in E.P.No.147 of 1993, the Sub Court, Erode recorded symbolic possession of the suit property, since 2/3rd share in the suit property has been purchased by Venkatesan and the delivery of symbolic possession was also recorded. The said Venktatesan became 2/3rd share holder in the suit property. The said Venkatesan died intestate on 24.03.2001. The wife and children, who are the legal representatives of the said deceased Venkatesan, filed suit for partition to divide the property into 3 equal shares by metes and bounds; allot two divided shares to the plaintiffs and to direct the defendants to pay future damages for use and occupation of the suit property till actual delivery of possession.

3. The first defendant/co-sharer in the property filed Written Statement in which he contended that, there is no truth in the averments that the plaintiffs took symbolic possession of the suit property, pursuant to the execution petition. The allegation that the first defendant has let out the premises to the second defendant for the monthly rent of Rs.4,500/- also denied. The portion let out to the second defendant belongs to his 1/3rd share. The remaining 2/3rd share is in occupation of his father and mother. Infact, only A.P.Pushpanathan was indebted to the finance company. For the said debt, Periyasamy stood only as guarantor. The auction purchaser Venkatesan, who was working as an Amine in the Court and being the co-brother of Periyasamy, assured that he will take the suit property in auction on behalf of Periyasamy. Periyasamy believed the words of Venkatesan, paid a sum of Rs.4,00,000/- to Venkatesan to pay the auction price and get sale certificate in his name. Later, Venkatesan refused to transfer the property in the name of Periyasamy. In the Panchayat held in the month of January 2001, Venkatesan orally relinquished his 2/3rd share in the suit property and promised that he will not dispossess Periyasamy. Hence, the plaintiffs have no right in the property, since their predecessor Venkatesan has already relinquished his right in favour of Periyasamy.

4. In the additional written statement, relying upon Sections 3 and 4 of the Partition Act, 1893, claimed pre-emptive right of purchase on the ground that major portion of the suit property being a dwelling- house, he as a co-sharer is entitled to exercise his right of purchase from the third party-co-sharer, who has initiated partition suit. To the Additional Written Statement, the plaintiffs have filed reply statement denying the Panchayat alleged to have been held in the month of January 2001 and relinquishment of right by Venkatesan.

5. The Trial Court framed the following issues:-

(1) Whether the oral relinquishment made by Venkatesan as contended by the 1st defendant is true?

(2) Whether the plaintiffs are entitled to the relief of partition as pra