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, the appellant is before this Court. 3. The main question of law raised in this appeal is

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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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