Post-partition, divided co-owner lacks preferential right under Section 22 HSA absent actual alienation attempt.

JUDGMENT

The plaintiff in O.S.No.182 of 2010 is the appellant. He filed a suit seeking declaration that he has got preferential right to purchase the suit properties and also for mandatory injunction directing the defendants to sell the suit property to the plaintiff for market value. The suit was dismissed by the trial court. Aggrieved by the same, the plaintiff preferred an appeal in A.S.No.17 of 2017. The first appellant court affirmed the findings of the trial court. Aggrieved by the concurrent findings, the plaintiff in O.S.No.182 of 2010 has come before this court by way of second appeal.

2. According to the plaintiff, he along with his brother deceased Purushothaman and his father Vaithilinga Padayachi constituted a Hindu Joint Family owning ancestral properties. There was a partition on 09.04.1986 involving the father, deceased 1^st defendant and plaintiff and they were allotted properties under schedule A, B and C to the partition deed respectively. The Schedule ‘D’ in the partition deed was motor and electricity service connection and the same was agreed to be enjoyed jointly by plaintiff and defendants. It was also stated that the family house was allotted to the plaintiff and the defendants. The plaintiff had taken eastern half and the defendants had taken western half. The defendants filed a suit in OS.No. 80 of 2009 seeking partition of house property and the same is being contested by the plaintiff.

3. As far as agricultural lands are concerned, the entire extent of 2 acres

85 cents was in one block. The defendants were allotted western 1.42 ½ acres and the plaintiff was allotted eastern 1.42 ½ acres. The father Vaithilinga Padayachi was allotted 0.72 cents of lands for his share. Thereafter, as per the understanding, the plaintiff had taken the defendants’ portion of the house and the defendants had taken the land allotted to the father. Thus, according to the plaintiff, the defendants had been in possession of 1.42 ½ acres of agricultural land originally allotted to him and 0.72 cents of land allotted to the share of the father. It is further pleaded that the deceased 1^st defendant planned to go abroad and hence, he wanted to dispose of the suit properties. The plaintiff allegedly expressed his willingness to purchase the suit properties at a prevailing market rate in exercise of the preferential right available to the co-owner. The deceased 1^st defendant refused to accede to the said request and hence, the above said suit was filed seeking declaration of preferential right and for mandatory injunction to direct the defendants to sell his share to the plaintiff.

4. The defendants filed a written statement and resisted the suit on the ground that in the partition dated 09.04.1986, the house property was not properly divided with reference to linear measurements and hence, the defendants had filed a separate suit for re-opening the partition in OS.No. 80 of 2009. The allegation in the plaint as if the plaintiff had taken defendants’

portion of the house and the defendants had taken the land allotted to father was specifically denied. It was the case of the defendants that they purchased 0.72 cents of land allotted to father under registered sale deed dated 21-12-1995 for valid consideration and hence, they have been in possession and enjoyment of the said property as absolute owners. The allegation in the plaint as if the defendants wanted to sell away their properties was specifically denied. It was the specific case of the defendants that deceased 1^st defendant had no idea of going abroad. The allegation in the plaint as if he is th