LEELAMMA Vs. MADHAVAN

JUDGEMENT

(1.) The following are the questions of law on which notice has been issued by this court in the second appeal:

(2.) These questions arise out of a suit filed for partition. During the pendency of the suit, under Ext. A1 dated 29-8-1972, the rights of the 1st plaintiff were assigned in favour of the 2nd plaintiff. The claim for partition was resisted, on diverse grounds, one being that the 1st defendant should be permitted to purchase the 1st plaintiff's 1/4th share. The claim was based on S.4 of the Partition Act. The evidence on this question relating to the applicability of the provisions of S.4 of the Act, was, however, confined to the testimony of the husband of the 2nd plaintiff and of the 1st defendant.

(3.) The controversy centering round the section was reflected in the additional issue raised in the case. It was contended that the property involved is about 42 cents in extent, that such a large extent would not come within the term of a dwelling house as referred to in the aforesaid section, that the situation of the two houses in the property, one on the eastern side and another on the west, was such that an area representing the 2nd plaintiff's share could be allotted to him, and that in those circumstances, the claim of the 1st defendant should be disallowed. After referring to the judicial decisions on the point, the Trial Court took the view that the dwelling house could not be confined to the family house, but would be wide enough to take in the curtilage, garden, courtyard, orchard and all that is necessary for the convenient occupation of the house. Applying the principle gatherable from the decisions referred to in the judgment, that court felt that the 1st defendant's claim should be allowed. There were 3 defendants, who between them were entitled to the 3/4 share. Only 1/4 share was due to the 2nd plaintiff. A division could not therefore be convenient and would not be conducive to the reasonable occupation of the family house by the defendants. It also observed: