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2025 DIGILAW 448 (MAD)

G. R. Prakash v. R. Srinivasan

2025-01-22

T.V.THAMILSELVI

body2025
JUDGMENT : T.V.Thamilselvi, J. The appellant has filed this appeal to set aside the judgment and decree in A.S. No. 63 of 2014, dated 30.10.2014, on the file of the XVIII Additional City Civil Court, Chennai, confirming the decree and judgment dated 01.03.2013 in O.S. No. 8632 of 2005, passed by the VI Assistant Judge, City Civil Court, Chennai. 2. For a sake of convenience, the parties herein are referred to as they were ranked in the suit. 3. The appellant is the plaintiff in O.S. No. 8632 of 2005. He filed a suit before the City Civil Court, Chennai, claiming 1/6th share and seeking relief for partition in respect of two items of the suit property by dividing his 1/6th share against five defendants. All five defendants are her brothers and sisters. After the filing of the suit, the second defendant, Vasumathy, along with her husband, Mohan, filed another suit, O.S. No. 1156 of 2012. Before this, Vasumathy and Mohan had filed a suit, O.S. No. 195 of 2004, seeking a permanent injunction, which was later renumbered as O.S. No. 1156 of 2012, for the relief of partition. They claimed a portion of 1376 sq.ft. in the 1st item of the suit property based on a Will executed by Vasumathy's father / Ramachandran. Both suits were tried jointly. 4. According to the plaintiff /G.R. Prakash, both items 1 and 2 of the suit property belonged absolutely to Ramachandran by way of purchase. Upon his death intestate, he left behind his wife and children. As their mother also passed away, the children of Ramachandran became the sole legal heirs. Accordingly, the plaintiff claimed 1/6th share in the suit property. 5. However, the second and fourth defendants, Vasumathy and Anandhi, married the same person, Mohan. They claimed ownership over the second item of the suit property, extending to 1376 square feet, based on the Will marked as Ex.B-2. Both parties adduced evidence, and finally, the learned trial judge held that the plaintiff was entitled to 1/6th share in the first item of the property at Velachery but was not entitled to claim a share in the second item of the property at Porur. The trial court reasoned that, after amending the suit to include the second item (Porur property), the plaintiff failed to pay the correct court fee. The plaintiff had paid the court fee under Section 37(2), assuming joint possession. The trial court reasoned that, after amending the suit to include the second item (Porur property), the plaintiff failed to pay the correct court fee. The plaintiff had paid the court fee under Section 37(2), assuming joint possession. However, since a portion of the property was under the occupation of D2 and D4 based on Ex.B-2 (the Will), the relief regarding the second item was not granted. Nevertheless, a permanent injunction was granted in favor of the plaintiff in another suit, O.S. No. 1156 of 2012, recognizing the possession of D2 and D4 based on the Will. 6. Furthermore, the learned trial judge noted that although the second defendant failed to prove Ex.B-2 (the Will), the evidence of DW1 to DW3 established that D2 and D4 were in possession and enjoyment of the second item of the suit property as owners, with the knowledge of other parties. The trial court held that they had acquired title through adverse possession. Accordingly, the court granted an injunction. 7. Challenging these findings, both parties preferred appeals A.S. Nos. 62 of 2014 and 63 of 2014. After considering the evidence, the first appellate judge independently analyzed the entire record and ultimately held that the trial court’s finding regarding the second item of the suit property, claiming title by adverse possession, was not maintainable. 8. The first appellate judge also held that the Will (Ex.B-2) had not been proved in the manner prescribed by law. The evidence of DW3 alone was insufficient to conclude that the testator executed the Will in a sound state of mind. Accordingly, the first appellate judge ruled that Ex.B-2 (the Will), dated 05.06.1992, was invalid. Considering the overall facts and evidence, the learned first appellate judge held that the trial court’s finding regarding adverse possession was also unsustainable and set aside that finding. Consequently, the appeal in A.S. No. 62 of 2014 was allowed, and the appeal in A.S. No. 63 of 2014, filed by Mohan and Vasumathy, was dismissed. As a result, the permanent injunction granted in their favor in O.S. No. 1156 of 2012 was also set aside. 9. Since the learned first appellate judge granted relief of partition concerning item No. 2, he also held that, after the inclusion of the second item, the appellant failed to make a corresponding amendment regarding the court fee and valuation for the second item of the suit property. 9. Since the learned first appellate judge granted relief of partition concerning item No. 2, he also held that, after the inclusion of the second item, the appellant failed to make a corresponding amendment regarding the court fee and valuation for the second item of the suit property. Assuming, without admitting, that the entire second item of the suit property was under common enjoyment, the appellant was required to show the market value of the second item of the suit property as of the date of the amendment application and to pay the court fee under Section 37(2) of the Tamil Nadu Court Fees Act. 10. If the market value of the plaintiff’s 1/6th share in the second item was added to the value of the first item, it might exceed the pecuniary jurisdiction of the lower court. In such circumstances, the lower court would have no power to grant a decree of partition. Since the appellant failed to pay the correct court fee and properly value his 1/6th share in the second item, relief regarding the second item was not granted due to non-payment of the proper court fee. This decision has now been challenged in the present appeal. 11. The learned counsel for the appellant argues that the second respondent, Vasumathy, claimed ownership of the second item of the property based on the Will, which was not proved, as concurrently held by both courts below. He further contends that the possession of the property based on the Will is also illegal. However, the courts below failed to properly appreciate this aspect, even though the permanent injunction claimed by Vasumathy was also not granted. Therefore, the property should be deemed to be under the joint possession of all co-sharers. Consequently, the court fee paid under Section 37(2) is valid under law. The learned first appellate judge erroneously dismissed the claim regarding the second item by holding that the correct court fee had not been paid. The appellant now prays for setting aside the findings related to the second item of the property. 12. Consequently, the court fee paid under Section 37(2) is valid under law. The learned first appellate judge erroneously dismissed the claim regarding the second item by holding that the correct court fee had not been paid. The appellant now prays for setting aside the findings related to the second item of the property. 12. This Court admits the second appeal on the following substantial question of law: "Whether the decree and judgment of the courts below, holding that the plaintiff/appellant is not entitled to the relief of partition with regard to item 2 of the schedule property due to non-payment of the court fee under Section 37(3) of the Tamil Nadu Court Fees and Suit Valuation Act , is sustainable in law, when Section 37(3) of the Act deals only with the share of the defendants?" 13. The learned counsel for respondents 2 and 4 submits that, admittedly, they have not preferred any appeal against the order passed by the learned first appellate judge. He further submits that they are in possession of a portion of the second item of the property, which was rightly observed by the learned trial judge. Even though the Will has not been proved, their possession is admitted. Therefore, the other co-owners are not deemed to be in joint possession of the property. Consequently, the learned first appellate judge rightly dismissed the claim of the plaintiff / G.R.Prakash, in respect of the second item of the property, needs no interference. Hence, he prays for the dismissal of the appeal. 14. Considering both submissions, it is noted that in respect of the first item of the property, the learned trial judge granted 1/6th share in the suit property, which is situated at Velachery. The dispute pertains only to the second item of the property. The contesting respondents 2 and 4 claim that they are in possession of a portion of the suit property based on the Will marked as Ex.B-2, said to have been executed by the second respondent’s father, Ramachandran. However, it is admittedly not proved. The courts below have concurrently held this finding, and the same was not challenged by the contesting respondents. 15. In S.A. No. 544 of 2016 , this Court categorically held that the Will had not been proved. Even though the respondents are deemed to be in possession, it cannot be considered lawful possession as they have no rightful title. The courts below have concurrently held this finding, and the same was not challenged by the contesting respondents. 15. In S.A. No. 544 of 2016 , this Court categorically held that the Will had not been proved. Even though the respondents are deemed to be in possession, it cannot be considered lawful possession as they have no rightful title. Their possession is deemed illegal. When possession is not valid, all the co-owners are deemed to be in joint possession. Accordingly, the court fee paid by the plaintiff is correct. Therefore, the findings of the courts below are set aside, and the second appeal is allowed. 16. In respect of the second item of the property, the plaintiff, along with his brother and sisters, is each entitled to 1/6th share in the suit property. The suit was filed in the year 2005, nearly 20 years ago. Therefore, the parties are entitled to approach the court to file a final decree application. Upon such application, the learned trial judge is directed to dispose of the case within three months from the date of receipt of a copy of this order, considering that most of the parties are senior citizens. 17. For both items 1 and 2 of the suit property, the plaintiff and each of the co-owners are entitled to 1/6th share. Accordingly, a preliminary decree is passed. The suit is decreed as prayed for, with no costs. 18. With the above directions, the second appeal is allowed. Consequently, the connected miscellaneous petition is closed. There shall be no order as to costs.