ORDER
S. Ashok Kumar, J.
1. Aggrieved by the order of dismissal of Interlocutory Application filed for amendment of the Plaint, the plaintiff has preferred this revision.
2. The revision petitioner who is the plaintiff has filed the suit for partition and separate possession. Pending the suit he filed the Interlocutory Application for amending the prayer of the Plaint contending that from the written statement he came to know that the defendant had entered into a sale agreement with the one K. Balakrishnan regarding his common half share in the family properties. According to him, as per Section 22 of the Hindu Succession Act, the plaintiff is having the preferential right to acquire the common half share o the defendant and he is also ready to purchase the same. But the defendant is refusing to sell his half share to him. So the Plaint has to be suitably amended for directing the defendant to sell his half share in the suit property to the plaintiff and to execute a sale deed, register it and deliver possession of the same.
3. The said Interlocutory Application was resisted by the defendant contending that the right of preemption claimed by the petitioner is untenable as such right will not apply to the transfer of an agricultural land and that too when the devolution of property acquired on account of survivorship. On the other hand it will apply only in case of inheritance.
4. The learned District Munsif, Tiruchengode taking into consideration of the averments and the submissions of the counsel appeared on either side dismissed the said Interlocutory Application. Aggrieved by the same, the present revision is filed.
5. Leaned Counsel for the revision petitioner contended that the defendant in his written statement stated that he has no objection for partition by metes and bounds and he has also averred that he is intending to sell his undivided share to one K. Balakrishnan. In such circumstance, the plaintiff is having the preferential right over the other half share kept by the defendant. According to him the judgment relied on by the trial court in AIR 1975 Patna 336 to hold that right of preemption is not available when property devolved by survivorship is not applicable to the facts of the present case since in the said case there had been a separation between the parties before the sale deed was executed and no application as made under Section 21 of the Hindu Succession Act. Likewise the decision reported in 1981 Rajasthan 16 to hold that the agricultural property is not subjected to such preemptive rights. Because, a plain reading of the Section states that a interest in any immovable property is proposed to be sold by any heir, other heirs shall have a preferential right to acquire the interest. Immovable property as per the decision of the Apex Court reported in AIR 1976 SC 1813 shall include land, benefits arising out of land and things attached to the earth. Section 3 of the General Clauses Act defines immovable property includes the land. Therefore, Section 22 will certainly include agricultural land as well.
6. Further, according to the learned Counsel a Division Bench of this Court in a decision reported in 2000 (II) CTC 159 held that the right of preemption will not be extinguished because of the proposal has merged into a transaction. It is also submitted that even as per the pleading of the defendant the transaction is not complete and therefore as per the decision reported in 1970 (I) MLJ 358, the plaintiff has not lost his preferential right of purchase. He also relied on the decision of a Division Bench of this Court reported in AIR 2000 Madras 516 wherein it has been held that for enforcement of right of preemption, a suit for setting aside the alienation filed is maintainable.
7. Of course as rightly contended by the learned Counsel for the revision petitioner, the decisions reported in AIR 1981 Raj 16 and AIR 1975 Pat.336 which were relied upon by the trial court is not be correct. But a perusal of the typed set would show that the plaintiff who has signed the affidavit of the Interlocutory Application on 3.11.2004 made it to appear as if he came to know the agreement of sale entered into between the defendant and the K. Balakrishnan only after going through he written statement filed by the defendant. Thus it is clear that on the date of filing of the written statement itself the plaintiff knows that there is a proposal for sale to a third party. As per the provisions of Section 22 of the Hindu Succession Act, the right of a co owner for preemptive rights to acquire the share of the other co-owner is to be exercised at the earliest point of time i.e., when he comes to know. But at the time when the plaintiff approached the defendant expressing his desire to purchase the share, the agreement to sell was over and therefore the defendant refused to accede to the wish of the plaintiff. The decision reported in AIR 2000 Madras 516 is only to the effect that if there is no material showing that the other co-heirs before finalizing the sale of suit property had taken into consideration of option exercised by the appellant co-heir, a suit for setting aside the alienation filed is maintainable. Therefore, the said decision is also not applicable to the case on hand where the agreement to sell has already been entered into and the defendant also refused for such a request.
8. The cause of action pleaded in the suit also requires consideration inasmuch as the plaintiff instituted the suit for partition only account of the fact that he will not be able to jointly cultivate the lands with a stranger. This would only go to show that even at the time of filing of the suit he was very much aware bout the proposed transfer. Thus a comprehensive reading of the pleadings establish the fact that the petitioner in spite of knowledge of the proposed sale has to exercised his pre-emptive right of purchase but has only sought for a partition thereby waiving the preemptive right available to him under Section 22 of the Act. This aspect has been dealt with in the decision reported in 1971 (I) MLJ 358 which has also been relied on in the decision of this Court in AIR 2000 Madras 516 (DB).
9. Even for argument sake, if the amendment sought to be made is looked at, it would clearly indicate that the proposed amendment would change the very nature and character of the suit. Even if the amendment is allowed it would show that the cause of action arose only from the date of filing of the written statement, whereas a reading of the plaint would clearly demonstrate that the petitioner was fully aware about the proposed sale by the defendant. The very purport of the provisions of Order VI Rule 17 of CPC is to permit such amendments which are necessary for determining the controversy between the parties including such facts which inspite of due diligence by the applicant could not have been raised at the time of institution of the suit. Therefore, the present amendment which is at a very belated stage that too after waiving the right cannot be allowed to be made.
10. For the reasons stated above, I do not find any irregularity or infirmity in the order passed by the learned District Munsif, Tiruchengode. In the result, this CRP is dismissed. Consequently, connected CMP is also dismissed. No costs.