J U D G M E N T

Challenge is to the concurrent judgment of the Courts below in A.S.No.17 of 2015 on the file of the Subordinate Court, Kanchipuram, confirming the judgment in O.S.No.1165 of 2008 on the file of the District Munsif-cum- Judicial Magistrate at Sriperumpudur.

2. The respondent/plaintiff filed the abovesaid suit for partition in O.S.No.1165 of 2008 to divide the suit property into three equal shares and to allot one share to her and for permanent injunction restraining the appellants from alienating the respondent's 1/3rd share and for costs.

3. The case of the respondent/plaintiff is that the first defendant Rathinasabapathy is her father and the appellants are her brother and sister respectively. The suit property originally belonged to one Rani alias Sivagamiammal by purchase through a registered sale deed on 23.09.1930. She executed a maintenance settlement deed in favour of the respondent/ plaintiff's mother Ganammal in respect of the suit property in the year 1942.

After the execution of settlement, the plaintiff's mother was in possession and enjoyment of the suit property and house tax receipt was transferred in her name and she was paying house tax. Her title and possession were upheld by the Additional District Munsif Court, Poonamallee in O.S.No.40 of 1976, in which, the first defendant was a party. Ganammal died leaving her husband, appellants and the respondent as her legal heirs to succeed to her estate. After her death, all of them are in joint possession and enjoyment of the suit property. The respondent/plaintiff is entitled to 1/4 share in the suit property. She is away from the suit property. Taking advantage of the same, the appellants tried to grab the entire suit property. They were not amenable for an amicable partition. A notice dated 27.12.1999 was issued to the appellants and their father. Another notice dated 31.01.2000 was also issued. In spite of oral requests and notices demanding partition, the appellants have not come forward to effect partition. Hence the plaintiff filed the present suit.

4. It is seen from the written statement filed by the first appellant/second defendant that he admitted the relationship between the parties. It is denied that, after the death of Ganammal, the appellants and the respondent were enjoying the property jointly as co-owners. The respondent is not at all in joint possession and enjoyment of the suit property. She got married 20 years back and separated from the alleged joint family. The first appellant during his young age, with his hard earned money, performed the marriage of the second appellant and the respondent. The second appellant and the respondent relinquished their right in the suit property. The suit property was enjoyed by the first appellant independently and all the records had been changed in his name. The first appellant spent huge amount for the second appellant and the respondent, more than the value of the shares belong to them. The respondent was not in joint possession and enjoyment of the suit property and therefore, Court fee paid under Section 37(2) of Tamil Nadu Court Fees and Suit Valuation Act, 1955 is not correct. She was ousted from joint family from the date of her marriage and she was not in joint possession. The suit has no cause of action and it is liable to be dismissed.

5. It is seen from the written statement of the second appellant/ 3rd defendant that the first appellant took care of the welfare of the family consisting of the appellants and the respondent. The respondent got married at the costs of the first appellant. There was no understanding between the respondent and the appellants. In the later stage, the suit property had gone to the first appellant. As per the agreement, the entire suit property is in possession and enjoyment of the first appellant as sole owner. The respondent is not entitled to claim any share in the suit property.

6. The trial court framed the following issues and additional issues for conside