Advocates:
['M/s R Parthasarathy', '', 'RAHUL BALAJI-MS', 'B MADHAN BABU-MS', 'VISHNU MOHAN-MS']

Application Nos. 3736 & 3737 of 2021

Application Nos. 3736 & 3737 of 2021

in

C.S. No. 104 of 2007

N. SESHASAYEE,J.

These applications are filed by the plaintiffs in C.S. No. 104 of 2007

for passing a final decree and also for appointing a Commissioner to suggest

modes of division.

2.

The subject matter of the litigation is a plot measuring about

3300 sq.ft with a building comprising of Ground Floor and First Floor.

Sambasivam, father of the plaintiffs and defendants 1 and 2, died on

21.01.1979 leaving behind him surviving his wife and five children.

Jayalakshmi, the widow of Sambasivam (mother of the parties) died in

1998. According to the plaintiffs, the mother died intestate whereas

according to the 1^st defendant (the brother of the plaintiffs) the mother had

exeucted a Will dated 20.01.1989. For probating the Will, the 1^st defendant

has filed T.O.S. No. 34 of 2021.

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Application Nos. 3736 & 3737 of 2021

3.

It is not in dispute that the children of Sambasivam are not

entitled to a share, but to whom the share of the mother should go. Since

the Will of the mother was not probated, this Court did not take cognizance

of the same and has passed a preliminary decree declaring 1/5^th share of the

plaintiffs in the suit property. Aggrieved by the same, the 1^st defendant is

said to have preferred an intra-court appeal in O.S.A. No. 414 of 2018 and

this came to be dismissed on 24.02.2020. Subsequently, the 1st defendant

has filed an O.P. for probating the Will and the plaintiffs have entered

caveat and now, it is converted into T.O.S. No. 34 of 2021 and it is pending

adjudication.

4.

Turning to the present applications, for appointing a

Commissioner and passing a final decree, one of the applications can

instantly be considered: the application for appointing a Commissioner in

A.No. 3736 of 2021.

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Application Nos. 3736 & 3737 of 2021

5.

Opposing the same, learned counsel for the

defendants/respondents would contend that inasmuch as T.O.S. No. 34 of

2021 has to go for trial, any report of the Commissioner suggesting modes

of division based on the decree in O.S.A. No. 414 of 2018 would prejudice

the interest of the 1st defendant. He added that the Will itself was

introduced in evidence and it was not opposed. He added that contention

taken by the plaintiffs in T.O.S. No. 34 of 2021 is essentially one of

limitation and nothing more.

6.

This Court does not want to state whether the probate

proceedings to obtain Letters of Administration for the Will of Jayalakshmi,

mother of the parties, is barred by limitation or not, since it has to be

separately adjudicated. So far as the present application is concerned, a

mere visit by the Commissioner, per se, is not likely to affect anybody's

right for the present. In the eventuality of the 1st defendant succeeding in

T.O.S. No. 34 of 2021, his share may enlarge and to that extent, others share

may reduce. Admittedly, the property to be divided is not a vacant plot and

it has got a building comprising of Ground Floor and First Floor.

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Application Nos. 3736 & 3737 of 2021

N. SESHASAYEE,J.

nv

Therefore, adjusting the equities, may not pose difficulty even if the 1^st

defendant succeeds in T.O.S. No. 34 of 2021. At any rate, no final decree is

going to be passed immediately.

7.

Hence, this Court appoints Mr.U. Madhanagopalan, learned

counsel with Enrolment No: MS 423/2021, Cell No. 8883575843, having

chamber address at No.65, Law Chambers, High Court Building, Chennai -

104, residing at "Home Kitchen Apartments", L.B. Road, Adyar, as

Advocate Commissioner. His initial remuneration is fixed at Rs. 50,000/-.

Report of the Advocate Commissoner by January, 2022.

23.11.2021

nv

½

Application Nos. 3736 & 3737 of 2021

in

C.S. No. 104 of 2007

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