Legal rights to partition and court fee requirements under the Tamil Nadu Court Fees Act related to ownership and co-ownership.

JUDGMENT :

T.V.Thamilselvi, J.

The appellant has filed this appeal to set aside the judgment and decree in A.S. No. 63 of 2014, dated 30.10.2014, on the file of the XVIII Additional City Civil Court, Chennai, confirming the decree and judgment dated 01.03.2013 in O.S. No. 8632 of 2005, passed by the VI Assistant Judge, City Civil Court, Chennai.

2. For a sake of convenience, the parties herein are referred to as they were ranked in the suit.

3. The appellant is the plaintiff in O.S. No. 8632 of 2005. He filed a suit before the City Civil Court, Chennai, claiming 1/6th share and seeking relief for partition in respect of two items of the suit property by dividing his 1/6th share against five defendants. All five defendants are her brothers and sisters. After the filing of the suit, the second defendant, Vasumathy, along with her husband, Mohan, filed another suit, O.S. No. 1156 of 2012. Before this, Vasumathy and Mohan had filed a suit, O.S. No. 195 of 2004, seeking a permanent injunction, which was later renumbered as O.S. No. 1156 of 2012, for the relief of partition. They claimed a portion of 1376 sq.ft. in the 1st item of the suit property based on a Will executed by Vasumathy's father / Ramachandran. Both suits were tried jointly.

4. According to the plaintiff /G.R. Prakash, both items 1 and 2 of the suit property belonged absolutely to Ramachandran by way of purchase. Upon his death intestate, he left behind his wife and children. As their mother also passed away, the children of Ramachandran became the sole legal heirs. Accordingly, the plaintiff claimed 1/6th share in the suit property.

5. However, the second and fourth defendants, Vasumathy and Anandhi, married the same person, Mohan. They claimed ownership over the second item of the suit property, extending to 1376 square feet, based on the Will marked as Ex.B-2. Both parties adduced evidence, and finally, the learned trial judge held that the plaintiff was entitled to 1/6th share in the first item of the property at Velachery but was not entitled to claim a share in the second item of the property at Porur. The trial court reasoned that, after amending the suit to include the second item (Porur property), the plaintiff failed to pay the correct court fee. The plaintiff had paid the court fee under Section 37(2), assuming joint possession. However, since a portion of the property was under the occupation of D2 and D4 based on Ex.B-2 (the Will), the relief regarding the second item was not granted. Nevertheless, a permanent injunction was granted in favor of the plaintiff in another suit, O.S. No. 1156 of 2012, recognizing the possession of D2 and D4 based on the Will.

6. Furthermore, the learned trial judge noted that although the second defendant failed to prove Ex.B-2 (the Will), the evidence of DW1 to DW3 established that D2 and D4 were in possession and enjoyment of the second item of the suit property as owners, with the knowledge of other parties. The trial court held that they had acquired title through adverse possession. Accordingly, the court granted an injunction.

7. Challenging these findings, both parties preferred appeals A.S. Nos. 62 of 2014 and 63 of 2014. After considering the evidence, the first appellate judge independently analyzed the entire record and ultimately held that the trial court’s finding regarding the second item of the suit property, claiming title by adverse possession, was not maintainable.

8. The first appellate judge also held that the Will (Ex.B-2) had not been proved in the manner prescribed by law. The evidence of DW3 alone was insufficient to conclude that the testator executed the Will in a sound state of mind. Accordingly, the first appellate judge ruled that Ex.B-2 (the Will), dated 05.06.1992, was invalid. Considering the overall facts and evidence, the learned first appellate judge held that the trial court’s finding regarding adverse possession was also unsustainable and set aside that finding. Consequently, the appeal in A.S. No