The question of court fees cannot be decided without recording evidence on merit.

JUDGMENT :

(Prayer: This application is filed under Section 12 of Tamil Nadu Court Fees and Suits Valuation Act, 1955, R/w Order XIV, Rule 8 of the Original Side Rules, Madras High Court, 1956, to decide and determine the issue of court fee as a preliminary issue.)

1. This application has been filed by the defendants 1 and 2 under Section 12 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955 (herein after referred to as TNCF Act) read with Order XIV Rule 8 of the Original Side Rules, Madras High Court, 1956 to decide and determine the issue of court fee as a preliminary issue.

2. The averments made in the affidavit filed in support of this application are in brief as follows:

The fourth defendant who was a tenant in the suit property for a very long time had purchased the same from the first petitioner/first defendant on 14.11.2013 and thereafter, he continues to be in possession of the suit property as absolute owner and therefore neither the first respondent/plaintiff nor the petitioners are in actual or constructive possession of the suit property from 14.11.2013 onwards. Since the first respondent/plaintiff is not in joint possession of the suit property along with the third respondent/fourth defendant, she should have valued the relief for partition under Section 37(1) of the TNCF Act. Contrary to the same, she valued the said relief under Section 37(2) of the TNCF Act. Pointing out the said fact, the petitioners have filed written statement and after considering the same, this court has also framed an issue with regard to the payment of court fee and therefore the petitioners prayed to decide the said issue of court fee as a preliminary issue before recording evidence.

3. The averments made in the counter affidavit filed by the first respondent/plaintiff are in brief as follows:

The first respondent/plaintiff has filed the above suit for partition and to declare the sale deed dated 14.11.2013 executed by the first petitioner / first defendant in favour of the third respondent/fourth defendant as null and void and not binding on her. Since the first respondent/plaintiff is also having one-fourth share in the suit property, the sale deed executed by the first applicant/ first defendant in faovur of the third respondent / fourth defendant will not bind upon her. When the suit for partition is filed, the joint possession is a presumption and so is the contention of the first respondent/ plaintiff and without recording the evidence on merits, the question with regard to court fees cannot be decided. Since the matter is pertaining to the sale of the suit property, the issue as to whether the first respondent/plaintiff is in joint possession of the suit property cannot be decided without recording evidence on merit and therefore she prayed to dismiss this application.

4. Heard Mr.P.J.George, the learned counsel for the applicants/defendants 1 and 2 and Mr.Adeesh Anto, the learned counsel for the first respondent/plaintiff.

5. A perusal of the case records shows that the first respondent herein had filed the above suit for partition to divide the suit property in to four equal shares and allot one such share to her and to declare the sale deed dated 14.11.2013 executed by the first defendant in favour of the fourth defendant as null and void and not binding on her.

6. According to the first respondent/plaintiff, the suit property is an ancestral property and the same was devolved on her father Surya Narayanan under a registered partition which took place on 30.03.1968. Her further case is that the defendants 1 and 2 are her brothers and the third defendant is her sister and their father Surya Narayanan died on 03.02.2003 and thereafter she, the defendants 1 to 3 and their mother Pushpa Surya Narayanan had partitioned their family property which is situated at Bangalore Rural District vide Registered Document dated 29.09.2010 and at that time, the defendants had admitted that their father Surya Narayanan died intestate and subsequ