JUDGMENT : (A. BADHARUDEEN, J.) This regular first appeal has been led under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908. 2. The decree and judgment in O.S. No. 1041 of 2004 on the files of the Sub Court, Thrissur, dated 29.07.2011, are under challenge in this appeal at the instance of the 1 st defendant in the said suit. The respondents herein are the plaintiff and defendants 2 and 3. 3. Heard the learned counsel for the 1 st defendant/appellant and the learned counsel appearing for the plaintiff . Even though notice served upon defendants 2 and 3, they did not appear. 4. Adverting to the facts, a suit for the recovery of possession of the plaint schedule property, on the strength of Ext.A1 settlement deed No.3258 of 2022 (title deed) has been led by the plaintiff along with the 2 nd defendant. As per the settlement deed property originally allotted to the plaintiff , 2 nd defendant, and to one Mr. Ramakrishnan. Thereafter, Ramakrishnan released his 1/3 rd share in the property in favor of the plaintiff as per Ext.A21 sale deed No.2316 of 1992. During the pendency of the suit, on 12.05.2008, the 3 rd defendant purchased the 1/3 rd share of the 2 nd defendant in the property, as per Ext.A9 sale deed. Thereafter, the prayer in the suit was amended with relief of partition and separate possession of the property between the plaintiff and the 3 rd defendant also. 5. The 3 rd defendant led written statement to assert his title over the plaint schedule property, and disputed the joint possession of the property by the plaintiff and the 3 rd defendant. The 2 nd defendant also led an additional written statement supporting the plaintiff 's contention. The trial court raised necessary issues and tried the case. PW1 was examined, and Exts. A1 to A25 were marked on the side of the plaintiff . The first defendant was examined as DW1. 6. Ultimately, the trial court decreed the suit as follows:- “i. The 1 st defendant is directed to surrender possession of the plaint schedule property to the plaintiff and 3 rd defendant within 3 months from the date of decree, failing which the plaintiff or the 3 rd defendant can initiate steps against the 1 st defendant to get recovery of possession of the property. ii. ii. The counter claim led by the 1 st defendant is dismissed. iii. The plaint schedule property shall be divided into three equal shares, out of which the plaintiff is having 2/3 shares and the remaining one share will go to the 3 rd defendant as assignee of the 2 nd defendant. iv. The 1st defendant shall pay the cost of the suit to the plaintiff . v. The plaintiff or the 3 rd defendant can take steps for passing final decree. vi. The suit is adjourned sine die. vii. Send a copy of the judgment to the District Collector to realise the court fee in the counter claim from the 1 st defendant.” 7. The learned counsel for the 1st defendant argued that the property covered by Ext.A3 sale deed was purchased by Sarojini Amma using the funds of the joint family, and therefore, the sale deed would enure to the benefit of all members of the joint family. At the same time, the learned counsel for the 1st defendant submitted that, on perusal of the recitals in Ext.A3, the said fact could not be found. Similarly, the learned counsel for the 1 st defendant contended that no convincing evidence is also available in this regard. However, the learned counsel pointed out the impropriety of the decree passed for the recovery of the property by the plaintiff and the 3 rd defendant from the 1 st defendant, as well as for partition. Accordingly, the learned counsel for the 1 st defendant argued that the prayer for partition was introduced by way of amendment. The learned counsel for the 1 st defendant argued further that recovery of possession from the 1st defendant, especially after the purchase of the 1/3 rd share by the son of the 1 st defendant, does not arise. According to him, since a preliminary decree of partition has already been passed, only after culmination of the nal decree proceedings who would get the house situated in the plaint schedule property—where the 1 st defendant has been residing at present could be decided. Therefore, expelling the 1 st defendant, who is none other than the mother of the 3 rd defendant, one of the co-owners, without the separation of shares through final decree proceedings, is an illegality. Accordingly, the learned counsel argued that the decree requires interference. 8. Therefore, expelling the 1 st defendant, who is none other than the mother of the 3 rd defendant, one of the co-owners, without the separation of shares through final decree proceedings, is an illegality. Accordingly, the learned counsel argued that the decree requires interference. 8. In this connection, the learned counsel for the petitioner placed reliance on Order 20, Rule 18 of the Code of Civil Procedure, which provides as follows: “18. Decrees in suit for partition of property or separate possession of a share therein.- Where the court passes a decree for the partition of property or for the separate possession of a share therein, the court may, if the partition or separation cannot be conveniently made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required.” 9. Whereas, it is submitted by the learned counsel for the plaintiff that the plaintiff raised a specific contention in Paragraph No.3 of the plaint, stating that immediately after the registration of Ext.A1 settlement deed, the plaintiff and the 2 nd defendant demanded vacant possession of the property from the 1 st defendant, to be handed over to the plaintiff and the 2 nd defendant. At this juncture, the 1 st defendant led O.S. No.234 of 2003 seeking the relief of prohibitory injunction to prevent her from being forcefully evicted from the building. After the decree in that suit, the present suit was led to evict the 1 st defendant from the plaint schedule property. According to the learned counsel for the plaintiff, the plaintiff and the 3 rd defendant are now the co-owners of the property, and therefore, the decree granted by the trial court, with the direction to the 1 st defendant to vacate the plaint schedule property, is only to be confirmed. 10. In view of the rival contentions, the points that would require answers are as follows: 1. Whether the plaint schedule property is a joint family property in view of Ext.A3 sale deed and the same would enure to the benefit of all members of the family is established? 2. Whether recovery of possession granted against the 1 st defendant is sustainable? 3. Whether grant of preliminary decree of partition is erroneous? 4. Whether the decree and judgment require interference in this case? 5. Reliefs and costs? 2. Whether recovery of possession granted against the 1 st defendant is sustainable? 3. Whether grant of preliminary decree of partition is erroneous? 4. Whether the decree and judgment require interference in this case? 5. Reliefs and costs? Point Nos.1 to 5:- 11. The specific case of the plaintiff and the 2 nd defendant is that, as per Ext.A1 settlement deed, Sarojini Amma executed and settled the entire plaint schedule property in favor of the plaintiff , the 2 nd defendant, and one Ramakrishnan. Thereafter, as per Ext.A21, Ramakrishnan transferred his right in favour of the plaintiff. Thus, now, the contention of the plaintiff is that plaintiff had 2/3 rd right in the plaint schedule property; Further, the 3 rd defendant, who is the son of the 1 st defendant, purchased the 1/3 rd share of the 2 nd defendant. Accordingly, in view of the operation of Section 44 of the Transfer of Property Act, he became a co-owner with 1/3 rd undivided share in the plaint schedule property. Even though the learned counsel for the 1 st defendant asserted that the plaint schedule property to be considered as a joint family property, and all the members of the joint family would succeed upon the same, in fact, neither in Ext.A3 sale deed nor by any other evidence the said contention was proved. Therefore, the said contention would fail. 12. In fact, as contended by the plaintiff, the plaintiff is the co-owner of the plaint schedule property, holding 2/3 rd share in view of Ext.A1 settlement deed and Ext.A21 sale deed. Similarly, the 3 rd defendant holds 1/3 rd share in the plaint schedule property on the strength of Ext.A9 sale deed. Therefore the preliminary decree for partition granted by the trial court is sustainable. Now, as pointed out by the learned counsel for the 1 st defendant, the question arises in whether decree for the recovery of possession of the plaint schedule property by the plaintiff and the 3 rd defendant jointly from the 1 st defendant is sustainable?, since 3 rd defendant not claimed recovery of possession. This is particularly in view of the fact that the 1st defendant is the mother of the 3 rd defendant, and a specific contention has been raised in the written statement led by the 3 rd defendant, stating that he could not have any adverse interest against his mother. This is particularly in view of the fact that the 1st defendant is the mother of the 3 rd defendant, and a specific contention has been raised in the written statement led by the 3 rd defendant, stating that he could not have any adverse interest against his mother. It is true that, even though the decree and judgment in O.S. No.234 of 2003 have not been produced before this Court, the 1 st defendant has not disputed the said fact. As of now, a decree restraining the plaintiff from forcefully evicting the 1 st defendant from the plaint schedule property is in operation. 13. In fact, in the instant case, no independent right could be found in favor of the 1 st defendant. However, the direction given to the 1 st defendant to surrender the plaint schedule property to the plaintiff and the 3 rd defendant, and the recovery of possession of the property through the process of court, without finalizing the final decree proceedings, is a matter that needs to be addressed. As already pointed out, the 3 rd defendant, who is the son of the 1 st defendant, is not agreeable to the plaintiff's claim for recovery of possession of the property from the 1 st defendant. Thus, it appears that, even though the plaintiff, who is one of the co-owners, has sought recovery of the property from the 1st defendant, the 3 rd defendant does not wish to pursue the said claim. Therefore, while confirming the preliminary decree of partition, for which no challenge raised by the 1 st defendant, the relief of recovery of possession needs interference. Therefore, the appeal stands allowed in part as under:- 14. While confirming the preliminary decree for partition, the relief of recovery of possession is modified and it is ordered that the recovery of possession of the property from the 1 st defendant shall be deferred till the culmination of the nal decree proceedings and separation of shares. If on separation of shares, the house where the 1st defendant has been residing can be independently allotted to the 3 rd defendant, recovery of possession granted as against the 1 st defendant is not necessary. If on separation of shares, the house where the 1st defendant has been residing can be independently allotted to the 3 rd defendant, recovery of possession granted as against the 1 st defendant is not necessary. However, if on separation of shares on the basis of the final decree proceedings, the property along with the house will be allotted in favour of the plaintiff, the decree of recovery of possession can be executed as against the 1 st defendant by the plaintiff. 15. Considering the nature of this case there shall be no order as to costs. 16. Since the appeal has been led as C.M.C.P. and this Court allowed the appellant to proceed with the appeal without paying court fee as indigent person, the appellant is bound to pay court fee in view of disposal of the appeal. Therefore, Registry is directed to take necessary steps in this regard. The appellant/defendant is directed to pay court fee of Rs.87,100/- (Rupees eighty seven thousand one hundred only), within a period of one month from today and on failure, Registry is directed to forward a copy of the decree to the District Collector concerned to realise the same from the appellant/defendant, as per law, without fail, at any rate, within a period of two weeks, on completion of one month period to pay the court fee with specific direction to the District Collector to realise the court fee, within three months from the date of receipt of a copy of the decree.