Dr.V.Sathish v. Mrs.Radha V.Bhat (deceased)1. Shalini2. Dr.(Mrs.)Sheila rep.by her Power Agent Dr.V.N.Sujeer

IN THE HIGH COURT OF JUDICATURE AT MADRASDated: 17.08.2009Coram:THE HONOURABLE MR.JUSTICE M.CHOCKALINGAMANDTHE HONOURABLE MR.JUSTICE R.SUBBIAHOriginal Side Appeal Nos.17, 18, 19, 202 and 203 of 2009and M.P.No.1 of 2009 in OSA Nos.17 to 19 of 2009, O.S.A.Nos.17 to 19 of 2009:Dr.V.Sathish ..Appellant in all the Appeals/3rd Defendant ..vs..Mrs.Radha V.Bhat (deceased)1. Shalini2. Dr.(Mrs.)Sheila rep.by her Power Agent Dr.V.N.Sujeer (Amended vide order of Court dt.17.08.2009 in M.P.No.3/2009, M.P.No.2/2009 and M.P.2/2009 in OSA Nos.17 to 19/2009)3. Dr.(Mrs.)Sudha4. Dr.(Mrs.)Shobha(Cause title accepted videOrder of Court dt.20.01.2009made in M.P.No.1/2009 in OSASR.Nos.3302, 3305 and 3309/2009 ..Respondents in all the Appeals/Plaintiff & Defendants 4 to 6O.S.A.Nos.202 and 203 of 2009:Dr.V.Satish..Appellant/3rd Defendant..vs.. https://hcservices.ecourts.gov.in/hcservices/

1. Dr.Mrs.Sheila rep.by her Power Agent Dr.V.N.Sujeer (Amended vide order of Court dt.17.08.2009 in M.P.No.13/2009 in OSA 202/2009 and M.P.No.2/2009 in OSA 203/2009)2. Dr.Mrs.Sudha3. Dr.Mrs.Shobha4. Shalini..Respondents/Defendants 4 to 6 &PlaintiffOriginal Side Appeal Nos.17 to 19 of 2009 filed under OrderXXXVI Rule(11) of Original Side Rules read with Clause 15 of LettersPatent, against the common order dated 12.12.2008 passed by a learnedsingle Judge of this Court in Application Nos.669, 670 and 671 of1991 respectively and Original Side Appeal Nos.202 and 203 of 2009filed against the common order dated 20.04.2009 passed by a learnedsingle Judge of this Court in Application Nos.29 and 30 of 2009 inC.S.No.783 of 1995 respectively.For Appellant : Mr.S.ParthasarathyFor Respondents : Dr.V.N.Sujeer (Party-in-person) Power of Attorney for R2 in OSA 17 to 19 of 2009 and R1 in OSA 202 and 203 of 2009 Mr.S.Devanathan for R3 in OSA 17 to 19 of 2009 and R2 in OSA 202 and 203 of 2009 Mr.P.K.Mohanvel for R4 in OSA 17 to 19 of 2009 and R3 in OSA 202 and 203 of 2009 Mr.M.V.Venkataseshan for R1 in OSA 17 to 19 of 2009 and R4 in OSA 202 and 203 of 2009 Mr.D.Veerasekaran for CMDA in all OSAs. https://hcservices.ecourts.gov.in/hcservices/ COMMON JUDGMENT(Judgment of the Court was delivered by M.CHOCKALINGAM, J.,)Appeal Nos. 17, 18 and 19 of 2009 challenge a common order ofthe learned Single Judge dated 12.12.2008 made in ApplicationNos.669, 670 and 671 of 1991 respectively, while Appeal Nos.202 and203 of 2009 challenge a common order dated 20.04.2009 made inApplication Nos.29 and 30 of 2009 in C.S.No.783 of 1985, a suit forpartition. 2. The plaintiff in the said suit for partition filedApplication No.669 of 1991 to pass a final decree with reference tothe schedule mentioned property being Item No.2 of the Schedule 'A'to the plaint, by dividing the same by metes and bounds and allottingthe specific portions to the petitioner and respondents, whileApplication No.670 of 1991 to pass a final decree in respect of ItemNo.3 of Schedule 'A' and Application No.671 of 1991 for appointmentof an Advocate Commissioner to prepare a plan and divide the schedulementioned property by metes and bounds and allot 1/6th share to eachof the parties.3. All the applications came to be filed under the followingfacts and circumstances:The plaintiff and the defendants in C.S.No.783 of 1985, a suitfor partition, are the children of Dr.Bhat, who acquired severalmovable and immovable properties. He executed a last Will andTestament on 30.09.1981 and the same was also registered. On hisdeath on 26.10.1985, the Will came into force. C.S.No.783 of 1985,the suit for partition in respect of the properties mentioned in thelast Will, was filed by the plaintiff, one of his daughters. In thesaid suit, the wife of Dr.Bhat was shown as 1st defendant whiledefendants 2 and 3 were the sons and defendants 4 to 6 were thedaughters. The 2nd defendant, who remained absent, was set ex parteand he was also not given any share in the Will. The writtenstatement was filed by the 3rd defendant, the appellant herein,denying the rights of the plaintiff and also defendants 1, 4 to 6.The plaintiff and defendants 1 and 4 to 6 filed O.P.No.393 of 1987,in which the 3rd defendant was shown as sole respondent. The saidO.P.was converted into T.O.S.No.42 of 1987. Written statement of theappellant was filed and on enquiry, the Will of Dr.Bhat was provedand Letters of Administration was granted in favour of all thebeneficiaries. A consent preliminary decree came to be passed inA.No.3817 of 1989 on 05.09.1989 in the said suit for partition,declaring that the plaintiff and defendants 1 and 3 to 6 wereentitled to get 1/6th share in the properties described as item Nos.2and 3 in Schedule 'A' of the plaint. While the matter stood thus, https://hcservices.ecourts.gov.in/hcservices/ the above said three applications were filed, seeking the reliefsmentioned therein. 4. By an order dated 13.02.1991, one Ms.S.Poorani was appointedas Advocate Commissioner to divide and allot item Nos.2 and 3 inSchedule 'A' of the plaint in equal share to the parties. TheAdvocate Commissioner was also permitted to have the assistance of acompetent Engineer for the said purpose. The Advocate Commissionervisited item No.2 in 'A' Schedule with the assistance of onequalified Engineer and on inspection, made 5 interim reports. TheAdvocate Commissioner in the course of the reports made threesuggestions for division of item 2 of 'A' Schedule property, namely, firstly, to sell the property in toto and to divide thesale proceeds by the parties;secondly, for demolition of the entire superstructure andthe vacant site could be divided among the parties as per thepreliminary decree, allotting 1/6th share to each; and thirdly, the old building at the center and the southwest corner building could be demolished and the northern side3 storeyed building could be retained. 5. After hearing the submissions made by the learned counsel oneither side, the learned single Judge found that the secondsuggestion found in the last report of the Advocate commissioner wasacceptable since it was beneficial to the parties and in so far asthe third item of 'A' schedule property is concerned, there was nodispute for partition of the same, according to their respectiveshare. It was also brought to the notice of the Court that in respectof the share of the mother, the 1st defendant, the rival claims weremade by the parties on the strength of two Wills and thus, it was thesubject matter of litigation and hence, the learned single Judgeordered that 1/6th share of the deceased 1st defendant should be keptapart till the litigation with respect thereto comes to an end andthus, the learned single Judge made an order that the superstructureof the property in item 2 of 'A' Schedule property should bedemolished by entrusting the same to a contractor, after gettingapproval from the concerned authorities; that the sale proceedsshould be divided in equal shares by the plaintiff and defendants 1and 3 to 6 and in so far as the site of item 2 of 'A' Scheduleproperty is concerned, it should be divided into 6 plots of equalextent confirming to the Development Control Rules of ChennaiMetropolitan Development Authority and such plots shall be allottedto each of the plaintiff and defendants 1 and 3 to 6 after drawinglots. For the said purpose, Mr.M.Soundarapandian, former Districtand Sessions Judge was appointed as Advocate Commissioner, with whomall the above works were entrusted, namely, the demolition of https://hcservices.ecourts.gov.in/hcservices/ superstructure by entrusting the same to the Contractor andconverting the same into vacant land and also dividing the site into6 equal plots and also dividing the shares found in item 3 of 'A'Schedule property into 6 equal shares and if fractional shares werefound, they were to be sold in stock market and the sale proceedsshall be divided equally among the parties. Aggrieved over the abovecommon order, Appeal Nos.17, 18 and 19 have been preferred by the 3rddefendant.6. Pending final decree proceedings, Application Nos.29 and 30of 2009 were filed by defendants 4 to 6, seeking a direction to thejoint receiver/3rd defendant to expel all the third parties inductedby him in the suit properties, pending injunction. On enquiry, bothapplications were ordered and the 3rd respondent was directed to evictthe persons so inducted on or before 27.04.2009. Aggrieved over thesaid order, the 3rd defendant has broughtforth Appeals No.202 and 203of 2009. Thus, all the appeals have arisen before this Court.7. Heard the learned counsel for the appellant and also therespondents.8. At the outset, learned counsel for the appellant, namely, the3rd defendant, would submit that all the persons, who were inductedinto the property, pending proceedings, have been vacated and thus,the statement could be recorded and Appeal Nos.202 and 203 of 2009could be disposed of.9. Learned counsel for the respondents contended that though itis stated by the appellant's side that all the persons so inducted,pending proceedings, were vacated, some of them continued to occupyand hence, it becomes necessary to issue a direction to the 3rddefendant to evict them within a stipulated time.10. From the materials available, in particular, the impugnedorder, it is quite clear that the 3rd defendant was not the onlyreceiver appointed by the Court, but only a joint receiver. TheCourt has also appointed an Advocate commissioner. The 3rd defendanthas neither sought permission of the Court nor it was an act jointlydone by both the receivers on permission of the Court and, under suchcircumstances, the act of the 3rd defendant in inducting the thirdparties into the property, pending proceedings, is thoroughly illegaland the persons so inducted have to be termed as 'trespassers'illegally got into the property and hence, the Advocate Commissionerappointed by the Court is empowered to evict them, by takingnecessary steps and thus, the common order made by the learned singleJudge in Application Nos.29 and 30 of 2009 is sustained and furtherdirection is issued to the Advocate Commissioner as stated above. 11. Advancing the arguments on behalf of the appellant in Appeal https://hcservices.ecourts.gov.in/hcservices/ Nos.17, 18 and 19 of 2009, the learned counsel would submit that theorder of the learned single Judge in passing the final decree andappointing the advocate commissioner was erroneous; that the Courtshould have deferred the passing of the order of demolition of item 2of 'A' Schedule property till the disposal of O.P.Nos.291 and 558 of2008, which are filed by the plaintiff and the appellant respectivelyfor probate of the Wills; that the appellant has filed objections tothe report of the Advocate Commissioner report, but they were notconsidered by the learned single Judge; that as early as 27.03.1991,the mother of the appellant had executed a Will bequeathing her 1/6thshare to the appellant by registered document and accordingly, theappellant is entitled to 2/6th share; that the Advocate Commissionerhad stated in the 4th interim report that the appellant had agreed fordemolition; but, in fact, the appellant had agreed for demolitiononly in respect of the dilapidated building and not to the extent of2/6th share, where the appellant and other respondents were runningtheir Clinics on the northern side; that the value of the northernside building is about Rs.one crore; that the total extent of thenorthern side building is only 5610 sq.ft.and not 3 grounds i.e.7200sq.ft., as stated by the Commissioner in the fourth interim report;that the construction of the northern side of the property wasregularised by the competent authority and the same was assessed fortax and the appellant is regularly paying taxes to the concernedauthorities since 1985 to till date; that Mrs.V.Radha Bhat, who isthe mother of the parties, during the first visit of the Advocatecommissioner on 08.03.1991 had furnished written Memo to theCommissioner and expressed her intention to give 1/6th share to theappellant and therefore, he is entitled to 2/6th share and the Willdated 27.03.1991 executed by the mother of the appellant expressingher husband's desire to run a clinic in the suit property and theappellant, being a competent Surgeon, would be able to run a nursinghome and the northern side building should not be demolished. 12. Added further the learned counsel that it is pertinent topoint out that regarding the allotment of 1/6th share of the 1stdefendant was pending before the Court in O.P.No.558 of 2008 and 291of 2008 and thus, the learned Judge should not have directed thedemolition of the entire superstructure and thereby change thetopography of the property before the Will was decided; that theappellant had already expressed his intention to run a charitablehospital in the property in the name of his father for the noblecause, for which he requires 2/6th share; that thus, the order of thelearned single Judge for demolition of the entire superstructure wasarbitrary; that the appellant had no objection in selling the sharesstated in item 3 of 'A' Schedule; that the learned single Judge wasnot correct in coming to the conclusion that the appellant isdragging on the issue; that it was also not correct in coming to theconclusion that 1/6th share of the mother could be decided later andthe same could be allotted separately; that even without demolishing https://hcservices.ecourts.gov.in/hcservices/ the existing structure, the suit property could be divided as itwould be beneficial not only to the appellant but also to the otherparties; that no demolition notice was issued by the ChennaiMetropolitan Development Authority for the demolition of the existingbuilding; that by payment of taxes and charges, the said buildingcould be regularised and hence, it need not be demolished; that thebuilding was constructed during 1980; that necessary charges werealso paid and hence, the same cannot be treated as an unauthorisedconstruction; thus, the learned single Judge was not correct inaccepting the Commissioner's report and rejecting the objections ofthe appellant; that even in the year 1987, the appellant and theother defendants filed the written statement, wherein they hadcategorically stated that the present superstructure of the northernside need not be demolished and only the central Old building couldbe demolished and allotted to the parties and that the learned singleJudge has not assigned any reason for ordering demolition of thenorthern side building when the balance portion is enough forpartition among the four co-sharers.13. Learned counsel would further add that the building situateon the northern side, which would cover 2/6th of the shares, could beretained and he has no objection for the removal of the remainingsuperstructure of that building and the other superstructure of theother buildings. Thus, the demolition of the entire superstructurewas detrimental to the interest of all the parties and hence, theorder has got to be set aside.14. Learned counsel for the respondents made their honestattempt of sustaining the orders under challenge.15. The Court made a thorough scrutiny of all the materialsavailable and considered the submissions putforth on either side.The present final decree and the appointment of Advocate Commissionerfor allotment of shares came to be made in C.S.No.783 of 1995, a suitfor partition. It is not in controversy that the plaintiff, theeldest daughter, filed the suit against her mother, brothers andsisters on the strength of the Will executed by her father Dr.Bhat.In T.O.S.No.42 of 1987, the execution of the Will of Dr.Bhat wasproved and Letters of Administration was also granted. A preliminarydecree came to be passed on 05.09.1989 by consent of all the parties,whereby it was declared that the plaintiff and defendants 1 and 3 to6 are entitled to get 1/6th share in each of the properties describedin items No.2 and 3 of Schedule 'A' of the plaint in the saidpartition suit. The defendants and the plaintiff have made theirrival claims on the strength of two Wills. By virtue of which, theywere entitled to 1/6th share of the 1st defendant, who died pendingsuit. 16. It is also true that two Original petitions are pending as https://hcservices.ecourts.gov.in/hcservices/ yet. The contention that since both the original petitions arepending and till the disposal of those petitions, the passing of thefinal decree has got to be deferred, cannot be countenanced for thesimple reason that in the suit for partition, the mother of theplaintiff was shown as the 1st defendant and it was also not indispute that she was also entitled to 1/6th share in item Nos.2 and 3of Schedule 'A' of the suit properties. Under such circumstances,the learned single Judge was perfectly correct in keeping the 1/6thshare of the 1st defendant till the disposal of the said originalpetitions and on the ground of pendency of those original petitions,the other 5 sharers, who were each entitled to 1/6th share, could notbe restrained to get their shares or to get the fruits of the decree.Hence, the contention putforth by the learned counsel for theappellant in this regard has got to be rejected.17. Admittedly, the property situate in Door No.34, G.N.ChettyRoad, T.Nagar, Madras, shown as item 2 in 'A' Schedule, is a housesite with an extent of 9 grounds and 522 sq.ft.and there are threesuperstructures. The property is not abutting the said G.N.ChettyRoad. It is also admitted that the building situate at the centreportion is a very old and in a dilapidated condition and hence, allthe parties would agree that it could be demolished and in thenorthern side, 3 storeyed building is situated. 18. As could be seen from the available materials, Dr.Bhatsubmitted a plan for approval only for the construction ofresidential quarters and the plan was approved. The construction ofnorth side building was made by Dr.Bhat without any plan at all.When a notice was served upon him under Section 236 of the MadrasCity Municipal Corporation Act, he had submitted a plan for necessaryapproval. While the plan was approved, it was found that the part ofthe construction was in violation of the Development Control Rules.The sanction was granted subject to the additional portion should beused for residential purposes only and no change in the usage of thebuilding. It was also made clear that the portions, which wereconstructed in contravention of the Rules, must be demolished withinsix months from the date of the sanction. The Corporation alsoreserves its right to withdraw the sanction if there was anyviolation or misrepresentation. Dr.Bhat was also prosecuted inS.T.C.No.911 of 1992 and was imposed fine for the unauthorisedconstruction. 19. It is pertinent to point out that the Corporation of Madrasissued a notice to the legal heirs of Dr.Bhat, who are the parties tothe proceedings, and ordered the demolition of the unauthoriseddeviated portions of the northern side of the building and thus, itwill be quite clear that the entire construction occupying about 3grounds was contrary to the plan sanctioned and also in violation ofthe permit issued by the Corporation of Madras. Under such https://hcservices.ecourts.gov.in/hcservices/ circumstances, the property situate on the northern side, which theappellant wants to retain, was nothing but illegal construction andin violation of the principles of law. Despite the notice from 1986to till date, the parties to the proceedings have not taken any stepsfor removal of the illegal construction. The contention putforwardby the learned counsel for the appellant that Dr.Bhat was imposedfine and hence, there was no necessity for removal of theunauthorised construction, cannot be countenanced in law and thus, itwill be quite clear that the building, which, according to theappellant, could be retained without demolition for the purpose ofrunning a clinic either by himself or by the other parties, cannot becountenanced.20. The next contention put forward by the learned counsel forthe appellant that a part of the construction, covering 4000 and oddsq.ft. could be retained towards his share, where Dr.Bhat wasrunning his clinic. This contention cannot also be accepted. Pendingproceedings in these appeals, the learned counsel for the appellant,after getting permission of the Court, addressed a letter to the CMDAfor a clarification with regard to the partition of the Scheduleproperty in the suit in the manner shown in the sketch filed by theAdvocate Commissioner, as to whether there will be any obstacle forgrant of sub-division of the plots after the Court passes a finaldecree in the partition suit. In the letter dated 21.04.2009, it wasreplied by the Department stating that the sub-division approvalcannot be accorded due to residuary plot violation. 21. A perusal of the plan made by the Commissioner would make itclear that on demolition, leaving a passage in the middle, each ofthe parties will be getting a site measuring 3064 sq.ft and all thesix sharers can have ingress and egress to the plots by having 16'width passage leading from the G.N.Chetty Road. If a part of theproperty on the northern side covering an area of 4000 sq.ft.isretained, then the passage of 16' width cannot be given. At thisjuncture, the learned counsel for the respondents brought to thenotice of this Court that if not a passage with such a width, theparties, who were the respective owners of the plots, cannot enjoytheir property either conveniently or to improve or develop theproperty and thus, it will be detrimental to their enjoyment.22. It is the well settled principal of law that while makingdivision of the property, the Court must keep in mind the interest ofall the parties and the convenient enjoyment of all the properties,by all the sharers, without any kind of hindrance from the othersharers and their successors-in-interest.Under suchcircumstances, the contention put forward by the learned counsel forthe appellant that the property could be divided into equal shares,leaving the building situate on the north intact or leaving a part ofthe said construction, cannot be accepted since more than 2/3rd of https://hcservices.ecourts.gov.in/hcservices/ the construction of the property situate on the northern side wasunauthorised and in thorough deviation of the sanctioned plan. 23. It is pertinent to point out that the thirddefendant/appellant, who is running a clinic in the northern sideproperty, has been using the same all along the period more than twodecades. It is true, the husband of the plaintiff and some of thedefendants too have their clinics. But it remains to be stated thatmajor part of the building on the northern side is under the use andoccupation of the 3rd defendant/appellant all along the period. Itwould go against the very spirit of the decree for partition grantedin favour of all the parties. 24. Taking into consideration the nature of the property, inparticular, the unauthorised construction of major part of thebuilding and the convenient enjoyment of the parties concerned, theCourt is of the considered opinion that the entire superstructure ofthe property has got to be removed and the vacant site has got to beallotted to the plaintiff and defendants 3 to 6, as found in thepreliminary decree, while keeping 1/6th share of the 1st defendanttill the disposal of the above mentioned original petitions. In thesaid circumstances, this Court is of the view that the contentionsput forward by the learned counsel for the appellant do not carrymerit and hence, they are liable to be rejected and, accordingly,rejected. The learned Commissioner appointed by the learned singleJudge can proceed with the execution of the warrant.Accordingly, all the original side appeals are dismissed and theimpugned orders passed by the learned single Judge are confirmed.There will be no order as to costs. Consequently, connected M.Ps.areclosed.17.08.2009These Original Side Appeals having been posted on28.8.2009, under the caption 'for being mentioned,' subsequent to theorder of this Court dated 17.8.2009 and made herein and in thepresence of the aforesaid advocates, the Court made the followingOrder:-The matter appears under the caption "for being mentioned".2.It is represented by the respondents' side that time schedulehas got to be given for the execution of the commission work sincetwo months' time was granted originally by the trial Court. Thelearned Counsel for the appellant would submit that theappellant/third defendant is running a clinic there, and hence sixmonths time should be given to him. https://hcservices.ecourts.gov.in/hcservices/

3.Taking into consideration the facts and circumstances, thisCourt feels that it is a fit case where time schedule has got to begiven. Accordingly, two months' time from today is granted to theappellant/third defendant to vacate and hand over possession. Afterpossession is handed over, the Commissioner can commence thedemolition work and complete the same within a period of two monthstherefrom. However, there is no impediment for the Commissioner toproceed with the other work as per the assignment, even from now. Sd/- Asst.Registrar/true copy/ Sub Asst.RegistrarglTo1. Mr.M.Soundarapandian, Former District & Sessions Judge, 55/38, Teachers Colony, Venkataratinam Nagar, Adyar, Chennai-20.2. The Sub Asst.Registrar, Original Side, High Court, Madras.+1 cc to Mr.S.Parthasarathy, Advocate, SR.No.*42996+2 cc to Mr.S.Devanathan, Advocate, SR.No.*42626+5 cc to Mr.M.V.Venkataseshan, Advocate, SR.No.42627+2 cc to Mr.P.K.Mohanvel, Advocate, SR.No.*42628Common Judgment in O.S.A.Nos.17 to19 and 202 and 203 of 2009NG {CO}TP/26.8.2009.TP/1.9.2009.