IMPORTANT POINT
Co-sharer has preferential right to get share in partition of joint property.

N.K. Balakrishnan, J.—This Second Appeal was filed by defendants 1 to 3. The first defendant died during the pendency of this appeal. 3rd appellant and respondents 8 to 13 are the legal representatives of the deceased first defendant. 8th respondent died subsequently. 3rd appellant and respondents 9 to 13 are the legal representatives of deceased 8th respondent.

2. The suit for declaration of right of pre-emption filed by the plaintiff was dismissed by the learned Munsiff. In the, the learned Sub Judge reversed the finding entered by the trial court and granted a decree as prayed for by the plaintiff.

3. The gist of the plaintiffs case can be stated thus:-

The plaint schedule property belonged to deceased Lakshmi Amma. She died. The plaintiff, D2, D4 and D5 are the legal representatives of deceased Lakshmi Amma. It was contended by both sides before the courts below that the husband of Lakshmi Amma is also one of the legal representatives. However, Sankaran Adiyodi, the father of the plaintiff and defendants 2, 4 and 5 died subsequently and as such it is not disputed that the plaint schedule property belonged to the plaintiff and defendants 2, 4 and 5 and as such, each of them had share in the property. According to the plaintiff, all the other co-sharers had agreed to sell their respective undivided shares to the plaintiff. The 2nd defendant executed Ext.B1 sale deed in favour of D1. D1 is the father of the 3rd defendant. 3rd defendant is the wife of the 2nd defendant. The plaintiff contended that since he was one of the co-sharers and since the property was jointly held by the plaintiff and defendants 2, 4 and 5, the plaintiff was having a preferential right to get assignment of the share of the 2nd defendant by virtue of the provision contained in Sec.22 of the Hindu Succession Act. Hence, the suit was filed for enforcement of that right.

4. Defendants 1 to 3 filed joint written statement admitting the fact that the right over the property devolved upon four persons; the plaintiff and defendants 2, 4 and 5. It was admitted that Sankaran Adiyodi, the father of the plaintiff in fact wanted other sharers to sell their share to the 2nd defendant, who was the youngest son. The allegation made in the plaint that the 2nd defendant had given Rs.5,000/- out of Rs.10,000/-, which was fixed as value of his share was denied. The right of pre-emption claimed by the plaintiff was also denied. It was contended that the first defendant had effected repairs to the house spending more than Rs.15,000/-. The allegation that there was an agreement to sell the share was also denied.

5. Ext.B1 was marked before the trial court. No other evidence was adduced by the parties. The trial court found that the plaintiff did not mount the witness box to give evidence in support of the claim made in the plaint. It was also found that Sec.22 of the Hindu Succession Act is not applicable to the case on hand and thus the suit was dismissed.

6. The appellate court reversed the finding and concluded that the plaintiff is entitled to get a right of preemption and so, the plaintiff was directed to deposit Rs.12,000/-before the trial court and the 2nd defendant was directed to execute the sale deed within two months from the date of judgment. This Second Appeal is filed by defendants 2, 4 and 5 contending that the property in question is an agricultural land and so, Sec.22 of the Hindu Succession Act has no application. It is also contended that the plaintiff is not entitled to get any preferential right since Ext.B1 was already executed. Unless the said document is declared void and inoperative and unless the 2nd defendant is also directed to execute a deed of conveyance, no decree as granted by the lower appellate court can be sustained, it is further contended.

7. The substantial questions of law framed for consideration are:-

(a) Whether the lower appellate court is justified in holding that the plaint schedule property is not an agricultural land