A defendant can seek partition and separate possession of his share of the properties after the passing of the preliminary decree, but only so long as the final decree proceedings are pending.

ORDER:- Defendants 1 to 4 in O.S. No. 213 of 1968, Sub. Court, Coimbatore, are the petitioners in this civil revision petition which is directed against the order dismissing an application filed by them praying for the issue of a cheque in a sum of Rs. 13,259-23 in favour of their counsel. The suit, O.S. No.213 of 1968 was filed by the respondent herein for partition and separate possession of their share in the properties and on 4-8-1971, a preliminary decree was passed against which an appeal was filed to this court in A. S. No. 646 of 1972, which also stood dismissed. The petitioners claim that as per clauses (8) and (9) of the preliminary decree, they are entitled to a sum of Rs. 14588-30 being the dividend due to the father of the petitioners from the 14th defendant in the suit who had deposited a sum of Rs. 13704-60 into court as per clauses (8) and (9) of the preliminary decree. The petitioners claim that out of this amount they are entitled to withdraw a sum of Rs. 13259-23 and that the respondents are entitled to withdraw a sum of Rs. 445-37. It is on this ground that the petitioners filed I.A. 472 of 1978 in O.S. No. 213 of 1968, praying for the issue of a cheque in favour of their counsel.

2. The respondents resisted the application contending that the petitioners have not paid the court-fee for partition and separate possession and hence, they are not entitled to ask for their share in the amount. It was also contended by them that the petitioners have to render accounts to them as well as to defendants 5 and 6 in the suit regarding the income derived by the petitioners from their share in accordance with clause 36 of the preliminary decree and, therefore, the application has to be dismissed.

3. The learned Subordinate Judge, Coimbatore, held that though the preliminary decree had been passed on 4-8-1971, yet, no steps whatever have been taken to pass a final decree and that no prejudice will be caused to the respondents, if payment out of the cheque is ordered. But, however, the learned Subordinate Judge held that the petitioners are entitled to withdraw the amount subject to payment of requisite court-fee. Ultimately, the court directed the payment of a sum of Rs. 13259-23 in favour of the counsel for the petitioners, subject to the payment of requisite court-fee for this amount. It is the correctness of this order that is challenged in this civil revision.

4. The learned counsel for the petitioners contended that no court-fee is payable at all since, according to him, on the separation of the share of the respondents, the share of the petitioners also gets ascertained and separated and that there is no need, therefore, for the petitioners to pay court-fee on their share and pray for its separation as well. On the other hand, Mr. N.R. Chandran, learned Addl. Government Pleader (II), contends that whenever the defendants ask for separation of their share of the properties, the court-fee is payable and such separation can also be sought for after the passing of the preliminary decree; but only so long as the final decree proceedings are pending and in the present case, the petitioners, after preliminary decree, are seeking a separation of their share and, therefore, the court-fee is payable. The relevant section that is applicable to the present case is Section 37 of the Tamil Nadu Court-Fees and Suits Valuation Act, 1955 (hereinafter referred to as the Act). The section reads as follows:-

"37. Partition suits--- (1) In a suit for partition and separate possession of a share of joint family property or of property owned, jointly or in common, by a plaintiff who has been excluded from possession of such property, fee shall be computed on the market value of the plaintiff's share.

(2) In a suit for partition and separate possession of joint family property or property owned jointly or in common by a plaintiff who is in joint possession of such property, fee shall be paid at the following rates---

When the plaint i