SATHIRATHAYAMMAL Vs. DURAISHAMY CHETTIAR

JUDGEMENT

(1.) THE plaintiff in O.S. No. 152 of 1974 on the file of the Sub-Court, Dindigul, is the appellant in the above Second Appeal. THE plaintiff filed a suit on the basis of certain sale deeds under which she claims to have purchased a portion of the joint family property. THEre is no dispute about the fact that the said suit came to be compromised at the stage of trial and a preliminary decree came to be passed as follows:

(2.) THE learned trial judge rejected the objections of the appellant/plaintiff, holding that the parties are bound by the terms of the preliminary decree extracted supra, that each party under the terms is entitled to half share and therefore the plaintiff cannot urge that the built-up portion on the southern side should be allotted to her and that such a move would amount to going against and behind the terms of the preliminary decree. THE learned trial judge felt that doing so will result in unequal division, as observed by the learned commissioner, consequently, the manner of division suggested by the Commissioner was accepted and on a subsequent day the matter was called for casting of lots in open court and in the said lot cast, the portion ABCGRIMA fell to the share of the plaintiff/appellant and a final decree came to be passed accordingly directing that the report and the plan of the Commissioner shall form part of the decree.

(3.) AT the time of the admission of the Second Appeal, it was considered that the failure on the part of the courts below to allot the southern moiety to the appellant who is a third party purchaser and who had made improvements to the southern moiety by spending considerable amount, would constitute a serious and patent error of law vitiating the judgments and decrees of the courts below. It was also further considered that the issue as to whether the mode of division adopted by the courts below was opposed to the fundamental principles governing partition and that the third-party purchaser should be allotted such portion purchased by him, or her and improved at his or her own expenses on equitable grounds, arise for consideration in the appeal.