JUDGMENT (Prayer: Appeal filed under Section 100 of Civil Procedure Code to set aside the judgment and decree dated 14.12.2009 made in A.S.No.72 of 2006 on the file of the Sub Court, Sivagangai, reversing the judgment and decree dated 28.07.2006 made in O.S.No.158 of 2008 on the file of the Principal District Munsif Court, Manamadurai.) 1. The plaintiff, who was successful before the trial court in his suit for partition in O.S.No.158 of 2002, but having suffered a reversal in the first appeal in A.S.72 of 2006, has approached this Court in Second Appeal. 2.1 The Brief facts, which are essential for the present purpose may be stated: The suit property is an agricultural property, and it is an ancestral property in the hands of the first defendant, the father of the plaintiff and the karta of the coparcenary. Defendants 2 and 3 are the brothers of the plaintiff. While so, defendants 1 to 3 had sold the entire property including the share of the plaintiff to the defendants 4 and 5 Vide Ext.B1 sale deed, dated 17.05.2001. Asserting his share in the property as a coparcener, the plaintiff has laid the suit for partition ignoring Ext.B-1 sale deed, which defendants 1 to 3 have executed in favour of defendants 4 and 5. 2.2 The defendants 1 to 3, the executants of Ex.B1-sale deed, remained ex-parte, and the suit was contested by defendants 4 and 5 alone. They alleged in their written statement that Ex.B1-sale deed was executed by defendants 1 to 3 only to raise necessary finance to support the plaintiff for securing him a job abroad and justified the sale. 3.1 The dispute went to trial and during trial, the plaintiff examined himself as P.W.1 while the fifth defendant examined himself as D.W.1. The defendants had examined two other independent witnesses D.W. 2 and D.W.3. On the side of the plaintiff Ext.A1 to Ext.A3 were marked, whereas the defendants 4 and 5 produced Ext.B1 to Ext.B7 documents. 3.2 After considering the evidence before it, the trial court decreed the suit. In an appeal preferred by the defendants 4 and 5, the first appellate Court had literally concurred with the finding of the trial court, yet chose to dismiss the suit on the ground that the suit ought to have been valued under Section 37(1) of Tamilnadu Court-Fees and Suits Valuation Act, 1965. This is now under challenge. 4. In an appeal preferred by the defendants 4 and 5, the first appellate Court had literally concurred with the finding of the trial court, yet chose to dismiss the suit on the ground that the suit ought to have been valued under Section 37(1) of Tamilnadu Court-Fees and Suits Valuation Act, 1965. This is now under challenge. 4. This Second Appeal is admitted for considering the following questions of law: a) Whether the courts below are right in rejecting the document of Ex.B5 marked on the side of the defendants? b) Whether the Courts below are right in holding that the original suit is not barred by limitation warrants interference? 5. The learned counsel for the appellant would submit that: If the first appellate Court had considered that the suit was undervalued, and that a higher court-fee is required to be paid, it ought to have directed the plaintiff to pay the differential court-fee, after proper enquiry, more so when the defendants have not raised any objection to the suit valuation. Indeed, no issue was framed by the trial court on this aspect. This goes against Section 12(4)(a) of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955. At any rate, the plaintiff has fixed the court-fee at Rs.200/- as per Section 37(2) of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955, and even if Section 37(1) of the said Act were to be applied, as per the provisions of the Act at the relevant point of time market value has to be assessed at 30 times the kist payable on the land. As per Ext.B3 tax receipt, dated 22-08-2006 the kist paid for the entire property was Rs.1,050/- per fasli and if so, the market value of the property would be (Rs.1050/- X 30) Rs.31,500/- and the plaintiff is required to pay court fee for the market value of his ¼ share of Rs.7,875.50/- The plaintiff has paid a fixed court fee of Rs.200/- under Sec. 37(2) of the TNCF & SV Act, 1955. This has to be deducted and the balance court fee payable is Rs.7,675.50/- and submitted that the plaintiff/ appellate is ready to pay this amount. This has to be deducted and the balance court fee payable is Rs.7,675.50/- and submitted that the plaintiff/ appellate is ready to pay this amount. 6.1 The learned counsel for the fifth respondent/fifth defendant, the purchaser from defendants 1 to 3 argued that notwithstanding the fact that the fifth defendant had not pleaded partial partition in his written statement, it has been admitted by the plaintiff during his cross examination that there are other properties available for partition. This implies that the suit is bad for seeking partial partition. That a suit for partial partition cannot be maintained is a statement of law judicially evolved and it does not any longer dependant upon the pleading of the parties. When it has come to the notice of the Court, it is the duty of the Court to apply the legal principles on the facts proved before it to arrive at the just conclusion. In fitness of things, it is only just and appropriate that the suit is remanded back to the trial Court to enable the plaintiff to include the other properties and to direct him to go for a comprehensive suit for partition in which case, the fifth defendant can move the Court for allotting the entire property by adjusting the equities while passing the final decree. 6.2 To show the existence of other properties, this defendant had taken out a petition in C.M.P.(MD) No.5421 of 2022 under Order 41 Rule 27 of Code of Civil Procedure for production of those documents, which would go to indicate that the plaintiff has other properties. 7. In response, the learned counsel for the appellant/plaintiff submitted: * That all that the plaintiff has testified in his cross examination is availability of certain properties belonging to his father. However, when his father is still alive, succession does not open. Admittedly, the suit property alone is an ancestral property in which, the plaintiff has a share by birth. It is not as if the fifth defendant does not know about the existence of plaintiff as he himself has testified in his cross examination as D.W.1 about the same. In these circumstances, even if the Courts were to ignore the pleadings to look into the aspect of partial partition, then it may become necessary for this Court to appreciate the fact that the spes successionis does not provide a cause for any action for partition. In these circumstances, even if the Courts were to ignore the pleadings to look into the aspect of partial partition, then it may become necessary for this Court to appreciate the fact that the spes successionis does not provide a cause for any action for partition. * The documents which the fifth defendant has now produced before this Court all indicate that they stand in the name of the plaintiff's father and there is nothing to indicate that it was their ancestral property. * Thirdly, a plea of partial partition is not available to an alienee of a property held in co-ownership or co-sharership. It is essentially available as between the co-owners and co-sharers. 8. Reliance was placed on Balakrishna Udayar and others vs. Chellammal and others [1992-2-L.W.414]; Ramdas vs. Sitabai and others [ (2009) 7 SCC 444 ]; Karuppiah and another vs. C.Muniyappan and others [ 2014 (2) CTC 706 ]; and Maria Arulayi vs. Anthoniyal (Died) and others [2013-1- L.W.903] 9. Rival subsmissions are carefully weighed. The arguments for the respondent are made principally from a position of desperation. The suit property indisputably is an ancestral property, and it was sold entirely to the 5th defendant. The plaintiff must therefore be given his share in it. This has been the finding of the Courts below and the 5th defendant has not challenged it. The case he builds on partial partition is a belated strategy that he pressed into service without pleading it. Secondly, a suit for partial partition as between the cosharers is judicially frowned upon, not because any law forbids it, but because the Court may not be able to do complete justice to the parties during final decree proceedings, where inter se equities may have to be adjusted between the co-sharers. A defence on the ground of partial partition which is generally available to a cosharer is not readily available to a third party purchaser. The best such a purchaser of a property, on purchase from some of the co-sharers, may do, is to go for a suit partition to secure possession of a specific spot proportionate to the share he had purchased. Here however, in a case where the fifth defendant had indisputably purchased one share in excess of what his vendors were combinedly entitled to, and has occupied the property with no right in law to do when the plaintiff was abroad. Here however, in a case where the fifth defendant had indisputably purchased one share in excess of what his vendors were combinedly entitled to, and has occupied the property with no right in law to do when the plaintiff was abroad. This is bad in law. This will also be known from the tenor of his defence in his written statement where he chiefly justifies the purchase as something that was necessary to support the plaintiff's travel abroad. No remorse expressed, no regret felt. Now, to accommodate his plea of partial partition to non-suit the plaintiff will put premium to an obvious illegality which the 5th defendant has opted to believe. This is uncceptable as it is unfair to the plaintiff and unaccommodatable in law. 10. Turning to the first appellate court 's decree, it is in palpable and egregious error in denying the decree to the plaintiff on the ground of deficiency in court fee inasmuch as the plaintiff has valued the suit under Sec.37(2) of the Act and not under Sec.37(1) of the Tamil Nadu Court Fee and Suit Valuation Act, 1955. When once the first appellate court has chosen to consider this for which it has power to do under Sec.12(4) of the Act, it ought to have only directed the plaintiff to pay the deficit court fee in terms of Sec.12(4)(2) of the Act within a specified time. 11. The calculation part of the deficit court fee payable has already been provided by the counsel for the plaintiff. This Court agrees with the said calculation. This Court now directs that the plaintiff to pay the deficit court fee within a period of two weeks from today. 12. In conclusion this appeal is allowed, and the judgment and decree dated 14.12.2009 made in A.S.No.72 of 2006 on the file of the Sub Court, Sivagangai, is modified, and the plaintiff/appellant is directed to pay the deficit court fee of Rs.7,675.50/- (Rupees Seven Thousand Six Hundred and Seventy Five and Fifty Paise) within a period of two weeks from today. The decree of this appeal is directed to be prepared only after the payment of the deficit court fee. No costs. Connected miscellaneous petition is closed. 13. The Registry is required to post this Second Appeal on 22.08.2022 under the caption 'For Reporting Compliance'.