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2021 DIGILAW 391 (MAD)

Madan Suri v. Anuradha Sarin

2021-02-04

P.RAJAMANICKAM

body2021
JUDGMENT : (Prayer: This application is filed under Section 12 of Tamil Nadu Court Fees and Suits Valuation Act, 1955, R/w Order XIV, Rule 8 of the Original Side Rules, Madras High Court, 1956, to decide and determine the issue of court fee as a preliminary issue.) 1. This application has been filed by the defendants 1 and 2 under Section 12 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 (herein after referred to as TNCF Act) read with Order XIV Rule 8 of the Original Side Rules, Madras High Court, 1956 to decide and determine the issue of court fee as a preliminary issue. 2. The averments made in the affidavit filed in support of this application are in brief as follows: The fourth defendant who was a tenant in the suit property for a very long time had purchased the same from the first petitioner/first defendant on 14.11.2013 and thereafter, he continues to be in possession of the suit property as absolute owner and therefore neither the first respondent/plaintiff nor the petitioners are in actual or constructive possession of the suit property from 14.11.2013 onwards. Since the first respondent/plaintiff is not in joint possession of the suit property along with the third respondent/fourth defendant, she should have valued the relief for partition under Section 37(1) of the TNCF Act. Contrary to the same, she valued the said relief under Section 37(2) of the TNCF Act. Pointing out the said fact, the petitioners have filed written statement and after considering the same, this court has also framed an issue with regard to the payment of court fee and therefore the petitioners prayed to decide the said issue of court fee as a preliminary issue before recording evidence. 3. The averments made in the counter affidavit filed by the first respondent/plaintiff are in brief as follows: The first respondent/plaintiff has filed the above suit for partition and to declare the sale deed dated 14.11.2013 executed by the first petitioner / first defendant in favour of the third respondent/fourth defendant as null and void and not binding on her. Since the first respondent/plaintiff is also having one-fourth share in the suit property, the sale deed executed by the first applicant/ first defendant in faovur of the third respondent / fourth defendant will not bind upon her. Since the first respondent/plaintiff is also having one-fourth share in the suit property, the sale deed executed by the first applicant/ first defendant in faovur of the third respondent / fourth defendant will not bind upon her. When the suit for partition is filed, the joint possession is a presumption and so is the contention of the first respondent/ plaintiff and without recording the evidence on merits, the question with regard to court fees cannot be decided. Since the matter is pertaining to the sale of the suit property, the issue as to whether the first respondent/plaintiff is in joint possession of the suit property cannot be decided without recording evidence on merit and therefore she prayed to dismiss this application. 4. Heard Mr.P.J.George, the learned counsel for the applicants/defendants 1 and 2 and Mr.Adeesh Anto, the learned counsel for the first respondent/plaintiff. 5. A perusal of the case records shows that the first respondent herein had filed the above suit for partition to divide the suit property in to four equal shares and allot one such share to her and to declare the sale deed dated 14.11.2013 executed by the first defendant in favour of the fourth defendant as null and void and not binding on her. 6. According to the first respondent/plaintiff, the suit property is an ancestral property and the same was devolved on her father Surya Narayanan under a registered partition which took place on 30.03.1968. Her further case is that the defendants 1 and 2 are her brothers and the third defendant is her sister and their father Surya Narayanan died on 03.02.2003 and thereafter she, the defendants 1 to 3 and their mother Pushpa Surya Narayanan had partitioned their family property which is situated at Bangalore Rural District vide Registered Document dated 29.09.2010 and at that time, the defendants had admitted that their father Surya Narayanan died intestate and subsequent to his demise, the plaintiff, the defendants 1 to 3 and their mother succeeded to the suit property as co-owners. She further stated that during life time of their father Surya Narayanan, the suit property was leased out to the fourth defendant/bank and when she came to know that the first defendant alone trying to sell the property to the fourth defendant, she issued a lawyer’s notice on 14.11.2013 and after knowing the said fact, the first defendant had sold the suit property to the fourth defendant on 14.11.2013 itself for a sum of Rs.8 Crores and hence the said sale deed will not bind upon her. She also stated that their mother died and hence, she and the defendants 1 to 3 are entitled to get 1/4th share in the suit property. She further stated in the plaint that after the death of their father, they were in joint possession of the suit property and hence she valued the relief for partition under Section 37(2) of TNCF Act and paid a fixed court fee of Rs.1000/-. 7. The first petitioner / first defendant in his written statement has stated that in or about August 1974, their father and defendants 1 and 2 as the only coparceners then decided to partition the properties allotted to their father under a family arrangement which took place in the year 1968 and the said family arrangement was reduced into writing on 01.03.1976 and as per the said memorandum of family arrangement, the suit property was allotted to the first defendant and hence, he alone is entitled to the suit property. The fourth defendant in its written statement has stated that originally the fourth defendant was a tenant under Surya Narayanan. Further, it has stated that later, as per the unregistered partition deed, the first defendant became the land lord of the fourth defendant in respect of the suit property. Therefore, whether the properties were divided under an unregistered partition deed or the properties were divided orally as per the family arrangement and subsequently memorandum of family arrangement was executed are the issues to be decided only after recording evidence. If the Court comes to the conclusion that the alleged unregistered partition deed dated 01.03.1976 is only a memorandum of family arrangement and the same is valid and binding upon the plaintiff, then the plaintiff cannot claim any right over the suit property. If the Court comes to the conclusion that the alleged unregistered partition deed dated 01.03.1976 is only a memorandum of family arrangement and the same is valid and binding upon the plaintiff, then the plaintiff cannot claim any right over the suit property. In the written statement, though the fourth defendant has stated that originally the fourth defendant was a tenant under Surya Narayanan, but subsequently, as per the unregistered partition deed dated 01.03.1976, the first defendant became the landlord, but, it is not stated from which date, the first defendant was recognized as land lord. 8. If the first defendant is able to prove that he became the absolute owner as per the family arrangement/partition deed dated 01.03.1976, the sale deed dated 14.11.2013 which was executed in favour of the fourth defendant will bind upon the plaintiff. In case, the court comes to the conclusion that the alleged partition is not true, certainly, the plaintiff is entitled to get 1/4th share. 9. Further, if the property is sold to the third party and in pursuance of the said sale, the third party has been inducted into possession of the property, certainly, the other share holders cannot claim that they are in joint possession of the property along with the purchaser. But, in this case, admittedly, the fourth defendant was a tenant under the father of the plaintiffs and the defendants 1 to 3 and in such a case, it cannot be said that the fourth defendant came into possession of the suit property only for the first time through the sale deed dated 14.11.2013 executed by the first defendant in favour of the fourth defendant. 10. As already stated that if this court comes to the conclusion that the alleged partition is not true or not valid and the same will not bind upon the plaintiff, certainly, the plaintiff is entitled to claim as one of the landlords and in such a case, the fourth defendant cannot deny the title of the plaintiff. So, the issue as to whether the plaintiff is in joint possession of the property or not, can be decided only after taking evidence and therefore, the said issue cannot be decided as preliminary issue. 11. For the aforesaid reasons, this application is dismissed. No costs.