NEELAVATHI Vs. N NATARAJAN

JUDGEMENT

(1.) The appellants in this appeal by special leave are plaintiffs 1 to 5 in the suit. The plaintiffs 1 to 5 are sisters and defendants 1 and 2 are their brothers. The third defendant is their unmarried sister. They are the children of the late Mithukumaraswamy Gounder who died intestate on 20-12-1962 leaving his father Venavaraya Gounder who was managing all the ancestral joint family property as the head of the Hindu Undivided Joint Family till his death on 5-3-1972. The plaintiffs claimed that on the death of Muthukumaraswamy Gounder his 1/3 share in the joint family property devolved on his sons and daughters, his sons, defendants 1 and 2 taking 1/3rd share each in 1/3rd share of the family property by birth and in the balance all the sons and daughters of Muthukumaraswamy Gounder taking an equal share each. The plaintiffs claimed to have been in joint possession of the properties along with Venavaraya Gounder and his other sons. Similarly on the death of Vanavaraya Gounder, 1/3rd share in the family properties devolved upon his heirs, the plaintiffs and defendants 1 to 3 being entitled to certain shares. The claim in the plaint is that each of the plaintiffs is entitled to a share in the suit properties as heirs to Late Muthukumaraswamy Gounder and also as heirs to late Venavaraya Gounder, their grandfather. Each plaintiff claimed that she was entitled to 1/72 share in the suit properties as heirs to their father Muthukumaraswamy Gounder and also to 1/96 share as heirs to their grand-father Venavaraya Gounder. It was alleged in the plaint that since the death of Venavaraya Gounder, defendants Nos. 1 to 6 failed to give the plaintiffs their share of income and the plaintiffs could not remain in joint possession. The plaintiffs repeatedly demanded partition and the defendants 1 to 6 were evading. The plaintiffs claimed that each of the plaintiffs as co-owners is in joint possession of the suit properties and this action was laid to convert the joint possession into separate possession so far as the shares of the plaintiffs are concerned. For the purpose of Court Fee and Jurisdiction, the plaintiffs valued their share of the property and paid court-fee of Rs. 200/ under S. 37 (2) of the Tamil Nadu Court Fees and Suits Valuation Act. The relief prayed for was for partition of the properties and for allotment of their separate share, for accounts and for other reliefs.

(2.) In the written statement, the defendants 1 and 2, the brothers, contended that the properties were divided in the year 1946 during the lifetime of Muthukumaraswamy Gounder and that Muthukumaraswamy was enjoying the properties separately. Regarding possession of the plaintiffs, defendants 1 to 3 the contesting defendants alleged in paragraph 18 of the written statement as follows:-

(3.) The Subordinate Judge who tried the suit did not frame any preliminary issue regarding Court Fee as required under Section 12 of the Court Fees Act but proceeded to try all the issue together. The Subordinate Judge granted preliminary decree for partition and possession of the plaintiffs' 1/72 share in B. Schedule properties, and to certain shares in deposit in State Bank of India at Pollachi, and to the share in the Ganambika Mills, on payment of court fees by the plaintiffs, under Sec. 37 (1) of the Court Fees Act. The Court granted time for payment of court fee till 15-2-1973. As the Court fee was not paid, the Trial Court dismissed the suit, by its judgment dated 7-2-1974.