W S SEETHARAM Vs. V K JOHN

JUDGEMENT

(1.) THE third defendant has filed the above application seeking rejection of the partition suit in C. S. No. 423 of 1995 filed by the plaintiff V. K. John.

(2.) IT is the case of the plaintiff V. K. John that the suit property originally belonged to Elie John, who died leaving behind K. John-the father of the plaintiff, Appu John, the deceased first defendant and Mrs. Leelie the deceased second defendant. The plaintiff V. K. John is the sole surviving heir of K. John. The plaintiff claimed 1/3 share in the suit property. The third defendant W. S. Seetharam has been impleaded as the legal heir of the deceased second defendant. On the demise of Appu John, one Prema Chandrasekar, who claimed that she is one of the beneficiaries under the Will, executed by Appu John was arrayed as fourth defendant and T. R. T. Thirumalvasi who claim that he has been appointed as Executor under the said Will was impleaded as fifth defendant in the suit.

(3.) IN the present application filed by the third defendant, it is contended that appropriate court fee was not paid by the plaintiff who has not been in actual possession and enjoyment of the suit property. The plaintiff filed a non testamentary partition suit under the Indian Succession Act claiming only the share of his deceased father K. John. The plaintiff's father's assets vest with the Official Assignee on adjudication as an insolvent. Therefore, no property of the plaintiff's father is available for partition. Of course, the Will dated 2. 2. 1974 executed by Mrs. Elie John is a true and genuine one. The plaintiff, who had the Will executed by his grandmother late Mrs. Elie John, could have filed the Will even in the year 1995. The plaintiff hid his grandmother's Will for so long time. In the above circumstances, the relief of partition of his father's share cannot be granted. Therefore, the third defendant has sought for rejection of the suit.