KALLYANI Vs. NANJAPPAN

JUDGEMENT

(1.) RELYING on Section 4 of the Partition Act, learned counsel for the appellant pointed out that both the courts below have erred in law in not granting relief to the appellant by setting apart the dwelling house to her share.

(2.) IN a suit for partition, the appellant was the 2nd defendant. A preliminary decree was passed in which her share was determined as 1/4th. The sharers who had 3/4th share sold their right to the 1st respondent herein. After passing of the preliminary decree, proceedings were taken for passing of final decree and I.A.No.455/2006 was filed for passing of final decree. In the final decree, the transferee who purchased major shares came on record. A commission was deputed and she submitted Ext.C1 report and Ext.C1(a) plan.

(3.) IT is seen from the records and it is also not disputed that the appellant did file objections to the commission report. R.S.A No.442/2014 2 The main objection taken by her was that the preliminary decree allowed partition of only 36< cents. The commission on inspection found that the extent is 38 and odd cents. It is therefore contended that two cents were not available for partition because it was not covered by the preliminary decree. The other grievance was that the observation of the commissioner in her report that the house is a dilapidated one and has the value of tiles only is not correct. According to the appellant herein, it was a habitable house and she has no other house to stay. She contended that the house should have been set apart to her share along with sharers 1, 4 and 10. She also took objection to the valuation made by the Commissioner.