A plaintiff invoking Section 2 of the Partition Act cannot later seek relief under Section 3; only other shareholders can do so, emphasizing strict procedural adherence.

ORDER :

K. MURALI SHANKAR, J.

1. The Civil Revision Petition is directed against the order passed in I.A.No.97 of 2016 in O.S.No.6 of 2000, dated 09.11.2017 on the file of the Subordinate Court, Sankarankovil, allowing the petition filed under Section 3 of the PARTITION ACT .

2. The revision petitioner as plaintiff has filed a suit in O.S.No.6 of 2000 on the file of the Subordinate Court, Sankarankovil, claiming partition and allotment of 7/18 shares in the suit property. After full trial, preliminary decree came to be passed on 25.04.1991. Aggrieved by the preliminary decree, the first defendant has preferred an appeal before this Court in A.S.No.974 of 1991 and the same came to be dismissed vide judgment and decree, dated 13.03.2001. The plaintiff/decree holder has filed an application in I.A.No.403 of 2010 in O.S.No.6 of 2000 (previously O.S.No.75 of 1987 on the file of the Sub Court, Tenkasi) under Section 2 of PARTITION ACT , seeking orders to sell the suit property in Court auction sale and then to permit him to withdraw the amount proportionate to his share out of the sale proceeds and the same was pending.

3. Pending the above application filed under Section 2 of PARTITION ACT , the respondents 1 to 4 being the legal representatives of the deceased first defendant have filed an application under Section 3 of the PARTITION ACT in I.A.No.101 of 2011, praying the Court to fix the value of the property and to permit them to pay the amount to the plaintiff proportionate to his shares allotted to him. The plaintiff has filed a counter statement raising objections. Pending enquiry in the above I.A.No.101 of 2011, the legal representatives of the first defendant have again filed a petition under Section 3 of the PARTITION ACT in I.A.No.97 of 2016, praying the Court to fix the value of the property at Rs.43 lakhs or to fix the value through PWD Engineer and permit them to pay the amount, which is proportionate to the plaintiff's 7/18 shares to him.

4. The petitioner/first respondent/plaintiff has filed a counter statement raising serious objections wherein, he has prayed the Court to fix the value at Rs.55 lakhs and permit him to purchase the shares of the first defendant by paying proportionate amount to them. The learned Subordinate Judge, after enquiry, has passed the order, dated 09.11.2017, closing the petition in I.A.No.101 of 2011 and allowing the petition in I.A.No.97 of 2016 permitting the legal representatives of the first defendant to purchase the shares of the remaining shareholders at the valuation to be fixed by the Court and also appointed an Advocate Commissioner to fix the value of the property. Aggrieved by the impugned order, the plaintiff has preferred the present revision.

5. The learned Senior Counsel appearing for the revision petitioner would contend that the trial Court erred in deciding that the present petitioner invoking Section 2 of the PARTITION ACT cannot invoke Section 3 of the said Act; that there can be no application under Section 3 of the PARTITION ACT unless an application under Section 2 of the PARTITION ACT is already filed; that mere expression to purchase the property is very much sufficient to satisfy the legal requirements under Section 3 of the PARTITION ACT and there need not be a formal petition to invoke the same; that the application under Section 3 of the PARTITION ACT can be invoked only when the larger shareholder files an application under Section 2 of the PARTITION ACT ; that the petitioner was allotted a share of 7/18, for which he is not a larger shareholder but, he is the only lesser shareho