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)
C. THANKARAJAN RESPONDENT(S)
J U D G M E N T
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,
the appellant is before this Court.
3. The main question of law raised in this appeal is
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
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.
6. The appeals are, accordingly, disposed of.
7. Pending applications, if any, shall stand
8. There shall be no orders as to costs.
DECEMBER 12, 2017.