The Hindu Succession (Amendment) Act 2005 has retrospective effect, and possession by one co-owner constitutes possession by another co-owner unless ouster is proved.

This appeal is focused as against the judgment and decree dated 24.07.2007 passed in O.S.No.3291 of 2002 by the learned Additional District Judge, Chennai (Fast Track Court II).

2. For convenience sake, the parties are referred to here under according to their litigative status and ranking before the trial Court.

3. The epitome and the long and short of the germane facts absolutely necessary for the disposal of this appeal would run thus:

The plaintiffs originally nine in number filed the suit for partition as against the three defendants seeking the following reliefs:

"(a) To grant a preliminary decree for partition of the plaintiffs 7/10 share of the schedule mentioned property in the plaint;

(b) to grant an order of injunction restraining the defendants from collecting rents payable from the tenants as set out in the schedules;

(c) The defendants 1 to 3 to render true and proper account of the same and direct them to pay the rental income for the past 3 years; and

(d) For costs." (extracted as such) on the main ground that the suit property, which is a house, belonged to Sambandam as his self acquired property. He died leaving behind his widow and four sons and six daughters. The said widow died subsequently. The plaintiffs 1 to 5 are the daughters of Sambandam; P6 is the daughter of the pre deceased daughter; and P7 to P9 are the widow and children of one other pre deceased son of Sambandam. Thanikachalam/D1, Alagiri/D2 and Selva/D3 are also the sons of Sambandam. The plaintiffs claim jointly 7/10 shares in their favour in the suit property, as the defendants, according to them, did not come forward for amicable partition even though they are in possession of it. According to the plaintiffs, the defendants and some tenants are in physical possession of the suit property.

4. Per contra, D1 filed the written statement resisting the suit on the main ground that as per Section 23 of the Hindu Succession Act, the plaintiffs, who happened to be female members, cannot file the suit for partition for residential house under the occupation of male members, namely, the defendants herein. The said Sambandam died in the year 1982, whereas, the suit was filed in the year 2002 and by that time, the plaintiffs have lost their right over it by ouster also. The Court fee paid under Section 37(2) of the Tamil Nadu Court Fees and Suits Valuation Act was inadequate, as the suit ought to have been valued under Section 37(1) of the Act and ad valorem Court fee ought to have been paid.

5. Up went the trial, wherein, the first plaintiff-Rani examined herself as P.W.1 along with P.Ws.2 and 3 and Exs.A1 to A6 were marked; the first defendant-Thanikachalam examined himself as D.W.1 and Exs.B1 to B15 were marked.

6. The trial Court ultimately decreed the suit allotting 7/10 shares in favour of the plaintiffs.

7. Being aggrieved by and dissatisfied with the said decree passed, this appeal has been filed by D1 on various grounds.

8. The learned counsel for the appellant/D1 would advance his arguments, which could tersely and briefly be set out thus:

Accordingly, they would pray for the dismissal of the suit.

(a) The suit was not properly valued as per Section 37(1) of the Tamil Nadu Court Fees and Suits Valuation Act, even though admittedly the plaintiffs were not in possession of the suit property.

(b) The lower Court failed to take into account the plea that the plaintiffs have lost their right over the suit property in view of ouster and also adverse possession which endured to the benefit of the defendants.

(c) As per the then existed Section 23 of the Hindu Succession Act, the suit itself ought not to have been entertained.

9. In a bid to torpedo and extirpate the arguments as put forth and set forth on the side of the appellant/D1, the learned counsel for the respondents/plaintiffs would pyramid his arguments, which could succinctly and precisely be set out thus:

(a) The suit was properly valued, as possession by one co-owne