ORDER
M. Karpagavinayagam, J.
1. This application has been filed by the applicants/defendants under Order XIV, Rule 8 of Original Side Rules read with Sections 151 and 152 of C.P.C. praying this Court to pass an order amending the preliminary decree dated 22-1-1999 passed in C.S. No. 214 of 1996 declaring that the applicants/defendants would be entitled to 82.502% in the Plaint Schedule Properties and for further directing the office to amend the preliminary decree by including a clause for directing the plaintiffs to render a true and proper account for the rental income from the suit properties and on ascertainment of the same, direct the respondents/ plaintiffs to pay the applicants/defendants their share of the rental income.
2. This application is resisted through the counter-affidavit filed by the respondents/ plaintiffs.
3. On the basis of the grounds mentioned. Mr. T. V. Ramanujam, the learned Senior Counsel appearing for the applicants/defendants and Mr. R. Thiagarajan, learned counsel appearing for the respondents plaintiffs argued the matter at length and made their respective pleas.
4. I have given my anxious consideration to the rival contentions and carefully perused the affidavits of the parties and other records.
5. The respondents/plaintiffs filed C.S. No. 214 of 1996 claiming for partition and separate possession of the suit schedule properties bearing Door Nos. 6 and 15, Meeran Sahib Street. Chennai in respect of their 17, 498% shares in the suit properties.
6. After recording the evidence and after hearing the parties, this Court by judgment and decree dated 22-1-99 granted preliminary decree for partition and separate possession of the suit schedule properties in respect of the plaintiffs' share of 17.498% in the same.
7. The applicants/defendants being the majority of the shareholders would be entitled to 82/502% shares in the suit properties. The applicants filed Application No. 2052/99 for passing a final decree in consonance with the preliminary decree, allotting the plaintiffs' share of 17-498%. Since the applicants/defendants have not paid the requisite Court-fee for allocation of the balance share and declaration of their entitlement of 82/502% in the suit properties and for rendition of accounts along with the written statement, they have now filed this application to amend the preliminary decree, earlier passed, to the effect that the applicants/ defendants would be entitled to the balance share, namely. 82.502% and for rendition of accounts in respect of the said share.
8. Along with this application, the applicants/defendants paid the Court-fee under Sections 37(3) and 35 of Tamil Nadu Court-fees and Suits Valuation Act. 1955 (Rs. 150 + Rs. 750 = Rs. 900).
9. According to the learned Senior Counsel appearing for the applicants, if the respondents' share is divided in consonance with the preliminary decree, automatically, the applicants/defendants share would remain divided, as they are entitled to the balance share, namely, 82.502% in the suit properties and underthose circumstances, itwill be in the interests of justice to amend the preliminary decree declaring their shares also, especially when the shares of the applicants were admitted and the shares of the respondent had already been determined.
10. Opposing the above submission, Mr. R. Thiagarajan, learned counsel appearing for the respondents/plaintiffs would contend that this application seeking for declaration of applicants' rights and entitlement in the suit schedule properties, without there being proper adjudication, is not maintainable in law or on facts.
11. Learned counsel for the respondents/ plaintiffs, would also contend that the applicants, who are not in joint possession, have to necessarily file separate applications for passing a decree for partition in their favour and the relief cannot be clubbed by all the applicants, since each one has a separate right and that the rights of the parties have to be adjudicated independently.
12. The relevant section that is applicable to the present case is Section 37 of the Tamil Nadu Court-fees and Suits Valuation Act, 1955. Section 37(1) of the Act deals with the payment of Court-fee in a suit for partition and separate possession by a plaintiff who has been excluded from possession of such property. Whereas Section 37(2) of the Act deals with the payment of Court-fee in a suit for partition and separate possession by a plaintiff, who is in Joint possession of such property.
13. Section 37(3) of the Act indicates that if, at the time of filing the written statement, the defendant claims partition and separate possession of his share of the property, then Court-fee becomes payable immediately, computed on half the market value of his share or at half the rate specified in Section 37(2) of the Act depending upon whether such defendant has been excluded from possession or is in joint possession. Section 37(3) does not however provide for a case to enable a defendant after the passing of the preliminary decree to ask for separation of his share; but when all the parties are before the Court and the shares have not undergone any change and the matter has not proceeded to a final decree, there cannot be any serious objection in principle, if a defendant, even after passing of the preliminary decree, is permitted to seek a separation of his share of the properties by payment of the Court-fee. This is exactly the view of this Court ex-pressed in the decision, reported in : AIR1981Mad307 (Muthu v. Veerammal), with which I respectfully agree.
14. Hon'ble Ratnam, J. (as he then was) would observe, in the said decision, as follows :--
'It appears to me that Section 37(3) of the Act would apply even with reference to a case where a defendant seeks the partition and separate possession of his share of the properties after the passing of the preliminary decree, but only so long as the final decree proceedings are pending.'
This observation, in my considered opinion, would apply to the present case too.
15. Admittedly, in this case, neither in thewritten statement nor in the preliminary decree, there is reference about the exact shares allotted to the applicants/defendants.
However, as laid down in the abovementioned decision, it is open to the applicants now to approach this Court to have the preliminary decree amended in such a manner as to include a declaration of their rights as regards their shares in the properties as well, more particularly, when the shares have been admitted by the respective parties.
16. Incidentally, it is contended by Mr. Thiagarajan, learned counsel for the respondents that the parties are not in joint possession of the properties and the respondents are alone in possession. With regard to the said submission 1 do not find any material to accept the same.
17. In this context, the observation made by the Supreme Court in the decision, reported in : [1980]2SCR307 (Neelavathl v. N. Natarajan) is quite relevant and the same is as follows :--
The general principle of law is that in the case of co-owners, the possession of one is in law possession of all, unless ouster or exclusion is proved. To continue to be in Joint possession in law, it is not necessary that the plaintiff be in actual possession of the whole or part of the property. Equally it is not necessary that he should be getting a share or some income from the property. So long as his right to a share and the nature of the property as joint is not disputed the law presumes that he is in joint possession unless he is excluded from such possession. Before the plaintiffs could be called upon to pay Court-fee under Section 37(1) of the Act on the ground that they had been excluded frompossession, it is necessary that on a reading of the plaint, there should be a clear and specific averment in the plaint that they had been 'excluded' from joint possession to which they are entitled in law. The averments in the plaint that the plaintiff could not remain in joint possession as he was not given any income from the joint family property would not amount to his exclusion from possession.'
18. As observed by the Supreme Court, unless there is a clear and specific averment in the plaint that the defendant had been excluded from the joint possession, it cannot be contended that the respondents alone are in possession.
19. Under those circumstances, it is not necessary to direct the applicants/defendants to file a separate application for seeking the relief of declaration of shares.
20. In view of what is stated above, the application is allowed. No costs.