S. Esabella vs C. Thankarajan

NON-REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO(S). 21804-21805/2017 (ARISING FROM SLP (C) NOS.7476-7477 OF 2015)

S. ESABELLA PETITIONER(S)

VERSUS

C. THANKARAJAN RESPONDENT(S)

J U D G M E N T

KURIAN, J.

Leave granted.

2. The appellant has approached this Court

challenging the orders passed by the High Court dated

19.06.2014 in Mat. Appeal No.211 of 2005 and order

dated 10.10.2014 in R.P. No.498/2014. The issue

pertains to partition. On account of impracticability

of partitioning a small pathway which is around 6

feet wide, the High Court granted liberty to the

respondent/C. Thankarajan to purchase the share of

the appellant for a sum of Rs.50,000/-. Aggrieved, Signature Not Verified Digitally signed by the appellant is before this Court. NARENDRA PRASAD Date: 2017.12.16 10:34:44 IST Reason:

3. The main question of law raised in this appeal is

1 whether the appellant, having not challenged the

preliminary decree, may challenge the final decree.

It is contended that the High Court could not have

modified the preliminary decree. We find it

difficult to appreciate this contention. No doubt,

the preliminary decree was for partition by metes and

bounds. But at the stage of final decree, the High

Court, having regard to the peculiar facts of this

case, addressed the question of impracticability of

partitioning a small pathway which is around 6 feet

wide by metes and bounds. The High Court has also

referred to Section 2 of the Partition Act in that

regard.

4. In the facts of this case and having regard to

the provision under Section 2 of the Partition Act,

the view taken by the High Court cannot be faulted.

5. However, we find that the amount fixed by the

High Court i.e. Rs.50,000/- for the total share, in

our view, as on date is too low. Therefore, in the

fitness of things and in the interest of justice it

would only be just and proper to direct the

respondent to pay a further sum of Rs.1,00,000/- in

addition to what the High Court has already fixed.

Ordered accordingly.

6. The appeals are, accordingly, disposed of.

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7. Pending applications, if any, shall stand disposed of.

8. There shall be no orders as to costs.

.......................J. [KURIAN JOSEPH]

.......................J. [AMITAVA ROY] NEW DELHI;

DECEMBER 12, 2017.

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