VIJAYALAKSHMI C.V. Vs. AMMINI AMMA

JUDGEMENT

(1.) This second appeal is filed against the judgment and decree dtd. 26/2/2019 in A.S. No. 209/2015 on the file of the District Court, Palakkad (hereinafter referred to as 'the first appellate court'), arising from the final judgment and decree dtd. 20/8/2015 in FDIA. No. 1592/2011 in O.S. No. 86/1983 on the file of the Munsiff Court, Alathur (hereinafter referred to as 'the trial court'). For the sake of convenience, the parties shall be hereinafter referred to as referred in the original suit unless otherwise stated.

(2.) A substantial question of law arises for consideration before this Court in this second appeal. The substantial question of law is whether the allotment of the dwelling-house in favour of respondent, a stranger to the family, is illegal and in violation of the principles behind Sec. 44 of the Transfer of Property Act, 1882 (hereinafter referred to for short as 'the T.P. Act').

(3.) The matter arises out of a suit for partition. The first appellant is the plaintiff. Appellants 2 and 3 are defendants 2 and 3 respectively. As per the preliminary decree passed by the trial court and as modified in appeal, the suit property has to be divided into four equal shares and the plaintiff and the defendants are entitled to one-fourth share each. The first defendant-Meenakshi Amma died after the preliminary decree was passed. After the death of Meenakshi Amma, the respondent/petitioner filed the final decree application viz., FDIA 1592/2011 in O.S. No. 86/1983 claiming rights on the basis of a gift deed alleged to have been executed by deceased Meenakshi Amma in her favour.