CRP(PD) No.3641 of 2016 &

CMP.No.18529 of 2016

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on : 28.06.2021

Pronounced on : 30.07.2021

CORAM:

THE HONOURABLE MR.JUSTICE A.D.JAGADISH CHANDIRA

CRP(PD) No.3641 of 2016

and

CMP.No.18529 of 2016

S.Pandian

Petitioner

Vs.

S.Elavarasan

Respondent

PRAYER: Civil Revision Petition filed under Article 227 of Constitution of

India to set aside the fair and decreetal order dated 22.8.2016 passed

in I.A.No.496 of 2016 in O.S.No.135 of 2015 on the file of the Principal

District Munsif, Kanchipuram.

For Petitioners

: Mr.R.Mubarak Basha

For Respondents

: Mr.Dhyaneshwar for

Mr.S.Ganesh

O R D E R

(This case has been heard through video conference)

This revision petition has been filed seeking to set aside the fair

and decreetal order dated 22.8.2016 passed in I.A.No.496 of 2016 in

O.S.No.135 of 2015 on the file of the Principal District Munsif,

Kanchipuram.

2. The first defendant in O.S.No.135 of 2015 on the file of the

Principal District Munsif, Kanchipuram is the revision petitioner.

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CRP(PD) No.3641 of 2016 &

CMP.No.18529 of 2016

3. The respondent herein, who is the own brother of the revision

petitioner had filed the suit for a declaration that the plaintiff is having

preemptive right to purchase the suit property and for a consequential

relief of permanent injunction against the first defendant/revision

petitioner restraining him and his men and agents from in any way

alienating the suit property. The plaintiff had claimed that though the

suit property stands in the individual name of the revision petitioner as

per registered sale deed dated 7.11.1979, at the time of such purchase,

he was only about 18 years old and hence, the question of self

acquisition of the property by the first defendant will not arise and the

suit property is also a joint family property. The plaintiff claimed that

he has got sentimental value and emotional attachment with the joint

family and therefore, he wants to purchase it.

4. The revision petitioner/first defendant had filed a petition under

Order VII Rule 11(a) read with Section 151 CPC seeking to reject the

plaint on the ground that it does not disclose any cause of action. He

had taken a stand that when the suit property was purchased, he was

20 years old and he paid the sale consideration. It is his further case

that in a family partition which took place in the year 1981, his separate

title in the suit property was recognized and it was left out of the family

partition. The plaintiff has also not filed any suit for partition of the suit

property by treating it as a joint family property except claiming for a

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CRP(PD) No.3641 of 2016 &

CMP.No.18529 of 2016

declaration of the preemptive right to purchase as if the suit property is

a joint family property. Therefore, the plaintiff is estopped from

questioning the proprietary interest in the suit property as exclusive

owner thereof. The plaintiff had not filed any suit questioning the

correctness of the partition that took place in the year 1981 and

therefore, he has no cause of action to file the suit. The right of

preemption under Section 22(1) of the Hindu Succession Act, 1956 is

not available to the plaintiff in respect of the suit property as it is the

self acquired property of the first defendant. As none of the parties to

the partition of the year 1981 has come forward to claim a share in the

suit property, the plaintiff is now estopped from questioning the

character of the suit property as, by his conduct, he had admitted the

separate title of the revision petitioner/first defendant in the suit

property. The plaintiff not being a co-sharer or co-owner of the suit

property, the preemption right to purchase the suit property will not be

available under Section 22(1) o