Mr. S.Raghuraman vs Mrs. Deviga Somassoundirame
2022 Latest Caselaw 17357 Mad

Citation : 2022 Latest Caselaw 17357 Mad
Judgement Date : 7 November, 2022

Madras High Court

Mr. S.Raghuraman vs Mrs. Deviga Somassoundirame on 7 November, 2022

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 07.11.2022

CORAM :

THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN

C.S.No. 71 of 2021

Mr. S.Raghuraman ... Plaintiff
Vs.

1. Mrs. Deviga Somassoundirame
2. Mr.Robert Arjun Sandanakichenin
3. Mr.Enzo Aditya Sandanakichenin
Minor rep., by Natural Guardian mother
Mrs. Deviga Somassoundirame ...Defendants

Prayer : Petition filed under Order VII Rule 1 CPC read with Order IV Rule
1 of OS Rules, to pass a Judgment and Decree by

a) directing the plaintiffs ½ share in the schedule mentioned
properties, more fully described in the schedule as item No.1 and 2
hereunder, and pass a preliminary decree to such effect; and

b) directing the defendants to pay the costs of the suit.
***
For plaintiff : Ms. R.V.Gayatri

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2

ORDER

The suit had been filed seeking partition and separate possession by

dividing the two items of proprety given in the schedule to the plaint into two

equal shares and to allot one half to the plaintiff and by natural inference, the

other half share to the defendants.

2. The plaintiff S.Raghuraman and the late husband of the first

defendant and father of the second and third defendants, S.Ganesan were

brothers and sons of B.Santhakrishnan. The father B.Santhakrishnan had

beniffited in a partition deed dated 25.03.1991 and had been allotted item

No.1 property, namely, land and house bearing Door No. 6-A, Pillaiyar Koil

Street, 100 feet Jawaharlal Nehru Salai, Vadapalani, Chennai – 600 026

originally measuring 2696 sq.ft., and had also purchased by sale deed dated

30.09.1971 registered as Document No. 4281 of 1971 in the Office of the Sub

Registrar Office, Kodambakkam, the second item of the suit schedule namely

land and building measuring 1665 sq.ft., at Old Door No. 49, New No. 56,

Palayakaran Street, Kodambakkam, Chennai – 600 024. The plaintiff

therefore claimed that he is entitled to an undivided ½ share of the two suit

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schedule properties. His brother S.Ganesan, had died in Paris France on

09.12.2014 leaving behind him as his legal representatives the first, second

and third defendants.

3. It has been stated in the plaint that S.Ganesan had actually

appointed the plaintiff as his power of attorney agent by a registered power of

attorney deed dated 13.09.2012 registered as Document No. 806 of 2012 in

the office of the Sub Registrar Office, Mylapore, to collect the rents for the

properties on his behalf. It is stated by the plaintiff that the rents collected

had been deposited into the bank account of his brother S.Ganesan. Since the

defendants did not respond to the suit summons, they were set ex-parte on

23.09.2022. The summons had been complied by the Assistant Registrar,

OS-I on 19.07.2022. They had not entered appearance. They had not filed

written statement.

4. The plaintiff S.Raghuraman examined himself as PW-1. The

death certificate of his father B.Santhanakrishnan was marked as Ex.P-1 and

the legal heirship certificate was marked as Ex.P-2. The sale deed for the

purchase of the second item of the suit property was marked as Ex.P-4. The

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general power of Attorney which S.Ganesan, the deceased brother of the

plaintiff had given was marked as Ex.P-6.

5. It must be mentioned that out of the original area of 2696 sq.ft.,

of land in item No.1 property, 344 sq.ft., had been accquired by Land

Acquisition Proceedings dated 19.10.2012. Therefore, the land avilable for

partition is 2352 sq.ft. The document relating to the said acquisition of land

was marked as Ex.P-7. The plaintiff had occassion to issue a legal notice and

a copy of that was marked as Ex.P-9. It had been returned unserved and that

cover had been marked as Ex.P-10.

6. The plaintiff had also filed along with the suit the death

certificate of his brother S.Ganesan. It is a notarised copy. The learned

Master during the course of evidence had apparently refused to mark the

same but I would take the same on record and is mark it as Ex.P-11.

7. It must be mentioned that notaires are appointed to attest

declarations particularly with respect to birth, marriage and death of French

Citizens and therefore, the said document, can be taken on record and is

accordingly taken on record.

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8. In view of the evidence presented, a preliminary decree is

granted to the extent of undivided one half share to the plaintiff and the other

half share to the defendants with respect to both item Nos.1 and 2 of the

schedule properties.

9. Ms.R.Gandhimadhi, Advocate [Mobile No. 9952081601],

Enroll. No. 1197/1994, Madras High Court, Advocate Association, High

Court Building, High Court, Chennai – 104, is appointed as Advocate

Commissioner. The Advocate Commissioner should give notice to both the

plaintiff and the defendants and thereafter, file a report with respect to the

division or otherwise of the two schedule properties.

10. The initial remuneration to the Advocate Commissioner is

determined at Rs.50,000/- (Rupees fifty Thousand only). In the first instance,

the plaintiff may bear the same and later during the final decree proceedings,

seek to adjust the payment made with the defendants.

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11. A Preliminary Decree is granted as prayed for, however in view

of the relationship among the parties without costs.

12. The Advocate Commissioner to discharge the warrant on or

before 31.03.2023.

                    Vsg                                                             07.11.2022

                    Index:Yes/No
                    Web:Yes/No

                    Speaking/Non Speaking Order

1. List of Witnesses Examined on the side of the Plaintiff:-

1. P.W.1 – Mr. S.Raghuraman

2. List of Exhibits Marked on the side of the Plaintiff:-