Negative declaratory relief cannot be sought without establishing positive ownership claims under the Specific Relief Act; inadequate court fees leads to dismissal of suit.

JUDGMENT :

S. SRIMATHY, J.

The present Second Appeal is filed by the defendant in the suit to set aside the Judgment and Decree dated 25.10.2016 passed in A.S.No.53 of 2015 by the VI Additional District Court, Madurai by reversing the Judgment and Decree dated 17.06.2015 passed in O.S. No.389 of 2008 by the III Additional Sub Court, Madurai.

2. The defendant is the appellant herein and the plaintiffs 2 & 3 are the respondents herein. For the sake of convenience, the parties shall be referred to as plaintiffs and defendant as per the ranking in the suit.

3. The plaintiffs have filed O.S.No.611 of 2002 on the file of District Munsif Court, Madurai, thereafter the same was transferred and renumbered as O.S.No.294 of 2002 on the file of District Munsif Court, Thirumangalam, again transferred and renumbered as O.S.No.389 of 2008 on the file of III Additional Sub Court, Madurai.

4. The plaintiffs had filed the suit for declaration to declare that the defendant has got no common ownership in Item No.1 of the suit property, consequential prayer for mandatory injunction directing the defendant to clear the trespass and restoring the possession to the plaintiffs and permanent injunction restraining the defendant from interfering with the possession and enjoyment of the suit property by the 2^nd plaintiff.

5. The suit was filed by the 1^st plaintiff C.Velusamy and the 2^nd plaintiff V.Marimuthu and they claim that the 1^st plaintiff C.Velusamy is the adopted father of the 2^nd plaintiff. After the demise of the 1^st plaintiff on 29.10.2003, the 2^nd plaintiff was recorded as legal representative of the 1^st plaintiff as per order dated 28.01.2004. Then the 3^rd plaintiff was impleaded as per order dated 23.01.2008.

6. The brief facts as stated in the plaint is the 1^st plaintiff C.Velusamy is the adopted father of the 2^nd plaintiff V.Marimuthu. The 3^rd plaintiff is the wife of the 2^nd plaintiff. The 1^st plaintiff father had filed the suit stating that he and his wife Panchavarnathammal had adopted the 2^nd plaintiff as their adopted son while he was 6 days old and he was named as Marimuthu and all were living together as members of Hindu Joint Family. Thereafter that the marriage of the 2^nd plaintiff with one Kalarathinam, the 3^rd plaintiff was celebrated on 22.05.1996 at Madurai and she hails from their own caste Aasari. The 1^st item of the suit property was purchased by the deceased 1^st plaintiff and his wife jointly vide registered sale deed, dated 13.05.1964 and they were in possession and enjoyment of the same. Then the 1^st plaintiff and his wife had executed registered Will dated 16.10.2000 in respect of the 1^st item of the suit property bequeathing the same to the 2^nd plaintiff. The 1^st plaintiff’s wife died in the plaintiffs’ residence on 30.05.2001 and her last rights were performed by the 2^nd plaintiff, adopted son.

7. After the demise of the 1^st plaintiff’s wife, the plaintiffs are living as members of the Hindu Joint Family. The 1^st plaintiff had sold the 1^st item of the said property for valid consideration in favour of the 2^nd plaintiff and 2^nd item in favour of the 3^rd plaintiff under registered sale deeds, dated 25.06.2001. As per Will, dated 16.10.2000 the 1^st item of the suit property was inherited by the 2^nd plaintiff as adopted son, after the lifetime of the said Panchavarnathammal and the 1^st plaintiff. The 1^st plaintiff had added the adopted son 2^nd plaintiff in order to avoid any technical objection. The 1^st plaintiff further stated that the defendant falsely claim that he is the adopted son of the 1^st plaintiff and his wife Panchavarna