JUDGMENT :

(Prayer: Appeal Suit filed under Order 41 Rule 1 read with Section 96 of CPC against the judgment and decree in OS.No.5718/2013 dated 12.01.2018 passed by the learned XVI Additional Judge, City Civil Court, Chennai.)

1. This Appeal Suit is preferred by the defendants in the suit in OS.No.5718/2013 on the file of the learned XIV Assistant Judge, City Civil Court, Chennai, granting a decree for partition in favour of the respondent/plaintiff.

2. The respondent/plaintiff filed the suit in OS.No.5718/2013 for partition of her half share in the suit property which is described as the property bearing Door No3./33, Plot No.1669, Anandan Street, GKM Colony, Chennai-82.

3. The respondent/plaintiff is the sister of the 1st defendant who died during the pendency of the suit. The plaintiff and the 1st defendant were the children of one Venkat Rathinam @ Rathinam who died intestate on 24.02.1996 leaving behind him, his wife Suryakantham, the plaintiff and the 1st defendant as his legal heirs. It is admitted that the mother Suryakantham died on 21.11.2012.

4. It is the case of the plaintiff that on the death of her father Venkat Rathinam, his wife Suryakantham, plaintiff and the 1st defendant are entitled to equal share in her father's property. It is further stated that the plaintiff is entitled to one half share after the death of her mother Suryakantham in the year 2012. Stating that the 1st defendant did not agree for an amicable partition, the suit came to be filed after issuing notice and receiving reply from the 1st defendant denying the averments in the notice.

5. The suit was contested mainly on the basis that the father during his lifetime, had executed a Will dated 22.02.1994. However, the Will was not allowed to be marked as a document as the same is not probated as required in law. However, a further defence was taken in the written statement that the plaintiff is not entitled to file a suit for partition when she was ousted from the suit property for more than the statutory period. Stating that the plaintiff was never in physical possession of the suit property and that she had left the parental home even before the date of purchase of the suit property, it is stated that she cannot be considered to be in constructive possession of the property. A further defence was also taken in the written statement that the suit itself was not properly valued and ad valorem Court fee was not paid. Since the plaintiff is not in possession, it is stated that the suit is liable to be dismissed on the ground that the proper court fee is not paid.

6. The Trial Court framed necessary issues and found that the Will is not admissible in evidence for want of probate. The Trial Court after holding that the father of the plaintiff is the owner of the property, held that the plaintiff is entitled to half share after the death of her parents. Even though the issue regarding ouster was not specifically framed, the Trial Court held that the plaintiff is deemed to be in joint possession as a co-owner and that, therefore the plea of ouster is not sustainable.

7. Relying upon the judgment of this Court in Arabia Bibi V. Sarbunissa, the Trial Court followed the legal principle that the plaintiff being a lady, who is expected to live in her husband's house after marriage, should not be deprived of her legitimate share in the joint property by presuming that she got her connection to the suit property snapped once for all. After holding the issues in favour of the plaintiff, the suit was decreed as prayed for. Aggrieved by the same, the present Appeal Suit is preferred by the defendants.

8. The learned counsel for the appellants submitted that the plaintiff herself has admitted during the course of evidence that she was out of possession for more than the statutory period and no proper court fee is paid. It is further contended that the Trial Court did not consider the evidence of plaintiff herself with regard to her exclusion of possession. Learned counsel