The main legal point established in the judgment is that a final decree cannot amend or go behind a preliminary decree on a matter determined by the preliminary decree, and any order or decree obtained by practicing fraud is a nullity.

1. The following are the allegations succinctly, as per the petition under Section 47 of C.P.C.:

1 (i) One Ammaniammal filed O.S.No.1093 of 1990 against two sons by name Ponnusamy and Varadharajan and daughter Kavariammal, the respondent herein. The Trial Court viz., Sub Court, Coimbatore, passed a preliminary decree on 07.02.1995 for partition of the suit property into eight equal divisions and to allot 5 shares to the plaintiff Ammaniammal. The shares of Ammaniammal alone were declared. The respondent who was defendant in the suit, remained ex-parte and there was no allotment of share in her favour. Ammaniammal died on 21. 1999. The respondent filed an application under Order 20, Rule 18(2) of C.P.C. for passing a final decree wherein the prayer is as per affidavit to allot 5/8 shares to her as per preliminary decree along with 1/4 of her alleged share in the suit property totalling 7/8th share in the suit property in her favour. The said prayer is in contravention to the declaration of shares in the preliminary decree. Since no share was declared for the respondent in the preliminary decree, the final decree should not have been passed in I.A.No.23 of 1999.

1.(ii) The respondent claims share of her mother under a will dated 211. 1995 allegedly executed in her favour by Ammaniammal. The law is very clear on this point that while the preliminary decree is not deciding the share of the party, she could not make any application for final decree. Final decree cannot amend or go behind preliminary decree on a matter determined by the Court in the preliminary decree proceedings. The fraud committed by the respondent vitiates every solemn act. Any order or decree obtained by practicing fraud is a nullity. It is also the law of land that any application under Section 47 of C.P.C. the question of nullity of order can be taken up. Since the final decree is nullity it is inexecutable under law.

1. (iii) The petitioner became major one year prior to passing of the final decree and was shown as respondent in the final decree proceedings to make the same to be ineffective. The respondent has totally suppressed non-declaration of share in the preliminary decree, being aware of the fact that she could not file any application for passing of final decree under Order 20 Rule 18 of C.P.C. She has misled the Court and by misrepresentation, by false representation and by suppression of material facts abused process of Court and obtained final decree. Consequently execution proceedings in E.P.No.402 of 2005 is also unsustainable under law. The final decree passed in I.A.No.23 of 1999 has to be declared as null and void and the same cannot be executed legally.

2. The allegations in the counter may tersely be stated as follows:

2.(i) It is misleading to contend that only Ammaniammals share was declared in the preliminary decree. In a partition suit, each of the parties is in the status of plaintiff. The will dated 211. 1995 executed by Ammaniammal was proved in the final decree proceedings, in which the petitioners mother and brother were contesting parties and also the legal heirs of varadarajan, second defendant in the suit. The petitioner was, at that time, a minor and represented by Court guardian Ms.R.T. Rani. It cannot be stated that in the final decree proceedings, the Court has travelled beyond the preliminary decree. There was no deprivation of share of any of the parties by such allotment. It is false to contend that the properties could not be partitioned without the preliminary decree being modified. The Court has not travelled beyond the preliminary decree. There is no abuse of process of court. This respondent is not guilt of fraud. Petition under Section 47 is not maintainable and the final decree is executable one.

2.(ii) During the pendency of final decree proceedings, the petitioners father died and the petitioner and other legal heirs were made as parties. In E.P.No.402 of 2005, after receiving summons, none of the