1 IN THE HIGH COURT OF JUDICATURE AT MADRAS (ORDINARY ORIGINAL CIVIL JURISDICTION) TUESDAY, THE 16th DAY OF AUGUST 2011 THE HON'BLE MR. JUSTICE V.PERIYA KARUPPIAH A.Nos.6671 AND 6672 of 2010 IN C.S.No.952 OF 2010 Mrs. S.Vanitha, W/o. Mr.B.Soundararajan, No.17, Raja Street Extension, R.A.Puram, Mandaveli, Chennai - 28. ... Plaintiff -Versus- 1. Mrs. K.B.Dayavathi W/o. late Mr.K.B. Bangaruswamy, No.49/1, Bheemasenna Garden Road, Mylapore, Chennai-4. 2. Mr.K.B.Baburaj, S/o. late Mr.K.B.Bangaruswamy, No.49/1, Bheemasenna Garden Road, Mylapore, Chennai-4. 3. Mr. P.Ranjith Kumar S/o. Mr. B.Prabhakaran, 4. Mr P.Santhosh Kumar, S/o Mr.B.Prabhakaran, 3 and 4 at No.20/11, 2nd Street, Gopalapuram, Thousand lights, Chennai-86. 5. Mrs. D.Krishnakumari W/o. Mr.Sundhakar Reddy, Plot No.304 and 305, 3rd Floor, Panna Prince Apartment, No.24, Loyds Road, Triplicane, Chennai-5. ... Defendants A.Nos.6671 and 6672 of 2010: Mrs. S.Vanitha, W/o. Mr.B.Soundararajan, No.17, Raja Street Extension, R.A.Puram, Mandaveli, Chennai - 28. ... Applicant/Plaintiff https://hcservices.ecourts.gov.in/hcservices/ 2 -Versus- 1. Mrs. K.B.Dayavathi W/o. late Mr.K.B. Bangaruswamy, No.49/1, Bheemasenna Garden Road, Mylapore, Chennai-4. 2. Mr.K.B.Baburaj, S/o. late Mr.K.B.Bangaruswamy, No.49/1, Bheemasenna Garden Road, Mylapore, Chennai-4. 3. Mr. P.Ranjith Kumar S/o. Mr. B.Prabhakaran, 4. Mr P.Santhosh Kumar, S/o Mr.B.Prabhakaran, 3 and 4 at No.20/11, 2nd Street, Gopalapuram, Thousand lights, Chennai-86. 5. Mrs. D.Krishnakumari W/o. Mr.Sundhakar Reddy, Plot No.304 and 305, 3rd Floor, Panna Prince Apartment, No.24, Loyds Road, Triplicane, Chennai-5. ... Respondents/Defendants 6. Mr.Jagannathan, Ground Floor 7. Mahaveer Jain, First Floor 8. Venkatesh, Second Floor 9. Ashok, Second Floor 10. Udhay, Third Floor 11. Kumar, Third Floor Garnishee 6 to 11 residing at No.49/1, Bheemasena Garden Street, Mylapore, Chennai-4. 12. R.Arun, Ground Floor 13. Kumaravel, Ground Floor 14. Ganesh Moorthy, First Floor 15. Dhilip, First Floor, 16. Arunachalam, Second Floor, 17. Sundar, Second Floor 18. Saranya, Third Floor 19. Durairaj, Third Floor Garnishee 12 to 19 residing at No.49/2. Bheemasena Garden Street, Mylapore, Chennai-4. 20. Senthil, Ground Floor, https://hcservices.ecourts.gov.in/hcservices/ 3 21. Selvaraj, Ground Floor, 22. Vishvanathan Iyer, First Floor 23. Rajabhathar, First Floor 24. Jayakumar, Second Floor 25. Gopi, Second Floor, Garnishee 20 to 25 residing at No.49/3, Bheemasena Garden Street, Mylapore, Chennai-4. ... Respondents 6 to 25 / Garnishees/Tenants A.No.6671 of 2010: Application praying that this Hon'ble Court be pleased to direct the Garnishees/Tenants Nos. 6 to 25, to deposit their respective monthly rent month to month payable by them in respect of their respective tenancy portions at No.49/1, 49/2, 49/3 and 49/4 Bheemasena Garden Street, Mylapore Chennai-4 into Court more particularly described in the schedule item No.1 to 4 properties hereunder till the disposal of the above suit. A.No.6672 of 2010: Application praying that this Hon'ble Court be pleased to direct the Respondents 1 and 2 to deposit the entire rents collected by them from each occupant let out with the aforesaid 28 room portions situated at premises No.49/1, 49/2 and 49/3 Bheemasena Garden Street, Mylapore Chennai-4, into court more particularly described as the schedule item Nos.1 to 3 properties hereunder till the disposal of the above suit. Schedule Item No.1 House, ground and premises bearing door No.49 (Old No.160), Bheemasena Garden Road, Mylapore, Chennai 4, comprised in R.S.No.1724/19, T.S.No.1724/35 part, measuring 1 ground and 1744 Sq.ft (4144 Sq.ft) Bounded on the North by: property belonged to C.Prabhakar; South by : Bheemasena Garden Road; East by : Property belonged to C.Sudhakar and https://hcservices.ecourts.gov.in/hcservices/ 4 West by : Door No.159-A (New No.48), Bheemasena Garden Road, situated within the Sub Registration District of Mylapore and Registration District of Chennai South. Item No.2 House, ground and premises bearing door No.49/L1 (Old No.160), Bheemasena Garden Road, Mylapore, Chennai 4, comprised in R.S.No.1724/19, T.S.No.1724/35 part, measuring 1 ground and 1743 Sq.ft (4143 Sq.ft) Bounded on the North by: R.S.No.1723; South by : property belonged to C.Prabhakar; East by : property belonged to C.Sudhakar and West by: Door No.159-B (New No.47) Bheemasena Garden Road, situated within the Sub Registration District of Mylapore and Registration District of Chennai South. Item No.3 House, ground and premises bearing door No.49/L2 Bheemasena Garden Road, Mylapore, Chennai 4, comprised in R.S.No.1724/19, T.S.No.1724/34 part, measuring 1 ground and 1995 Sq.ft (4395 Sq.ft) Bounded on the North by: R.S.No.1723; South by : property belonged to C.Sudhakar East by : Door No.161, Bheemasena Garden Road and West by: property belonged to C.Prabhakar, situated within the Sub Registration District of Mylapore and Registration District of Chennai South. Item No.4 House, ground and premises bearing door No.49 (Old No.160), Bheemasena Garden Road, Mylapore, Chennai 4, comprised in R.S.No.1724/19, T.S.No.1724/34 part, measuring 1 ground and 1995 Sq.ft (4395 Sq.ft) Bounded on the North by: property belonged to c.Sudhakar; South by : Bheemasena Garden Road; East by : Door No.161-B, Bheemasena Garden Road and West by : property belonged to C.Prabhakar, situated within the Sub Registration District of Mylapore and Registration District of Chennai South. https://hcservices.ecourts.gov.in/hcservices/ 5 These Applications coming on this day before this Court for hearing the court made the following order: A.No.6671 of 2010 This application has been filed by the applicant / plaintiff seeking a direction against the garnishees / tenants / respondents 6 to 25 to deposit the respective monthly rent payable by them from month to month in respect of their respective tenanted portions at Door Nos.49/1, 49/2 and 49/3 Bheemasena Garden Street, Mylapore, Chennai – 4 as detailed in the application. A.No.6672 of 2010 2. This application has been filed by the applicant / plaintiff praying for a direction against the respondents 1 & 2 to deposit the entire rents collected by them from each occupant let out with the 28 room portions situated at premises in Door Nos.49/1, 49/2 and 49/3 Bheemasena Garden Street, Mylapore, Chennai – 4 to the credit of the suit. 3.Heard Mr.Nagu Sah, learned counsel for the applicant, Mr.N.Nithiyanandam, learned counsel for the first respondent, Mr.S.Lakshmanasamy, learned counsel for the second respondent and Mr. Govi Ganesan, learned counsel for the respondent Nos. 3 and 4, Mr.Sundara Ravi Reddy, learned counsel for the fifth respondent and Mr.M.Ganesh, learned counsel for the respondent https://hcservices.ecourts.gov.in/hcservices/ 6 Nos.6, 7, 9, 10, 13, 14, 16, 20, 22, 23, 24 and 25. 4. The learned counsel for the applicant / plaintiff would submit in his argument that the applicant as plaintiff has filed the suit in C.S.No.952 of 2010 for partition and separate possession of her 6/20th share in the suit properties. He would further submit that the applicant, second respondent, one Mrs.Chitra - mother of respondents 3 and 4, and the 5th respondent are the children of the first defendant and Mr.K.B.Bangaruswamy Reddiar; and the properties scheduled in the suit property was owned by Mr.K.B.Bangaruswamy Reddiar ancestrally and he also purchased various properties from and out of income from the ancestral nucleus; the applicant and the 5th respondent, who happened to be unmarried on the notified date mentioned in the Tamil Nadu Act (1) of 1990, are entitled to inherit the properties as co-parceners equally with the second respondent, S/o.Mr.K.B.Bangaruswamy Reddiar and accordingly, even during the lifetime of Mr.K.B.Bangaruswamy Reddiar, she, her father and respondents 2 and 5 are equally entitled to 1/4th share and thereafter on the death of the father Mr.K.B.Bangaruswamy Reddiar, who died intestate, she became entitled to 1/5th share out of the father's 1/4th share in the entire properties and thereby she is entitled to 1/20th share in the entire property and therefore, she is totally entitled to 6/20th share in the suit properties. He would further https://hcservices.ecourts.gov.in/hcservices/ 7 submit in his argument that the defendants 1 and 2, who are entitled to 1/20 and 6/20 shares respectively, are in possession and enjoyment of the entire properties and are realising the rental income and also the income from the landed properties belonging to the family. He would also submit that the four items of properties described in Judge's summons are having several apartments in the ground floor, first floor and second floor and third floor in Door No.49/1; and in ground floor, first floor, second floor and third floor in Door No.49/2; ground floor, first floor and second floor in Door No.49/3 of Bheemasena Garden Street, Mylapore, Chennai – 4 and the said apartments, except the two apartments occupied by the defendants 1 and 2, are being occupied by the respondents 6 to 25 / garnishees for a monthly rent of Rs.15,000/-, Rs.12,000/-, Rs.16,500/-, Rs.10,000/- and Rs.13,000/- as detailed in paragraph 10 of the affidavit, and the advanced sums mentioned, therein. He would further submit that the respondents 1 and 2, taking advantage of their possession of the suit property, are receiving the rents from the garnishees / respondents 6 to 25 and are enjoying the same to the detriment of the applicant / plaintiff. He would further submit that if the respondents 1 and 2 are permitted to do so, the object of filing the suit for partition and for damages would likely to be defeated and the applicant will not get any remedy towards damages in future. He would therefore https://hcservices.ecourts.gov.in/hcservices/ 8 submit that the respondents 6 to 25, who are the tenants of the joint family property in Door Nos.49/1, 49/2 and 49/3 Bheemasena Garden Street, Mylapore, Chennai – 4, be directed to deposit the respective rents payable to the tenanted premises in their respective possession as tenants as detailed in paragraph 10 of the affidavit. 5. The learned counsel for the applicant would also submit that there are 28 rooms in the said buildings, in which bachelor students are permitted to stay on payment of a sum of Rs.8,000/- per student for six months and in one such rooms, 3 to 5 bachelor students were permitted to stay and in all the 28 rooms, 108 occupants were permitted to stay and thereby a total sum of Rs.8,64,000/- (Rupees eight lakhs and sixty four thousand only) was received by the respondents 1 & 2 for six months. He would further submit that after the completion of said six months, another batch of students numbering 108 are permitted to occupy on the same tariff of Rs.8,000/- per student and the respondents 1 and 2 are collecting the rents from those students to the tune of Rs.8,64,000/- (Rupees eight lakhs and sixty four thousand only) for the said six months. He would also submit in his argument that the suit was filed by the applicant during November, 2010 and the respondents 1 and 2 let another batch of students from the middle of November, 2010 and thereby earned a sum of Rs.8,64,000/- (Rupees eight lakhs and sixty four thousand only) from the said 28 https://hcservices.ecourts.gov.in/hcservices/ 9 rooms and the said money collected by the respondents 1 and 2 may be directed to be deposited to the credit of the suit. He would further submit that in the event of no direction given against the respondents 1 and 2, the respondents 1 and 2 would enrich themselves by sitting over the right of the applicant and other respondents and it would become unjust. Therefore, he would request the Court to issue a direction to the respondents 1 and 2 to deposit the amount collected by the respondents 1 and 2 on and from November 2010, towards the rent for the said 28 rooms in the scheduled mentioned property to the credit of the suit. He would further request the Court to pass suitable directions in both the applications to the respondents 1 and 2 and the respondents 6 to 25 to deposit the collected rent from and out of the 28 rooms in the suit property by the respondents 1 and 2 and the rents payable to the tenanted portions by respondents 6 to 25 as detailed in paragraph No.10 of the affidavit respectively. 6. The learned counsel for the second respondent would submit in his argument that the first respondent, who is the mother of both parties, alone collected the rent both from the respondents 6 to 25 and from the bachelor students occupied in 28 rooms in the said property and the second respondent is no way connected with the said collection of money. He would further submit that the right of the applicant in the said property is in dispute and it https://hcservices.ecourts.gov.in/hcservices/ 10 has to be determined only in the suit and therefore, there could not be any apportionment of the rental income from the suit properties. He would further submit in his argument that the second respondent, who is not collecting the rents from the tenants / respondents 6 to 25 or from the bachelor students, may not be directed to deposit the money as asked for by the applicant. Therefore, he would request the Court that the applications may be dismissed. 7. Learned counsel for the respondent Nos.6, 7, 9, 10, 13, 14, 16, 20, 22, 23, 24 and 25 / tenants / garnishees would submit in his argument that the particulars of quantum of rent and advance furnished in the application are varied from the amount actually paid by the tenants and the said amounts were paid only to the first respondent by the tenants and the tenants are ready and willing to deposit the actual monthly rent, that are payable by them from the month of September 2011 onwards. Therefore, he would request the Court to pass suitable orders. 8.I have given anxious thoughts to the arguments advanced on either side. 9. The relationship in between the parties namely the applicant and the respondents 1 to 5 are not disputed. The claim of the applicant/plaintiff is that she was married only after the notified date mentioned in the Act 1 of 1990 i.e., on 15.12.1989 and therefore, she is entitled https://hcservices.ecourts.gov.in/hcservices/ 11 to the benefits of Tamil Nadu Amendment Act 1 of 1990 and she can claim a right in the family properties as one of the co-parceners. She would also claim that she is thus entitled to 6/20th share out of the entire properties. Even though, the claim of the applicant / plaintiff is questioned by the respondents 1 & 2, the factual aspects regarding the relationship, date of marriage have not been seriously disputed. Admittedly, the properties were originally belonging to the father Mr.K.B.Bangaruswamy Reddiar, who derived the said property from and out of a partition had in between his brothers and subsequently he purchased certain properties from and out of the income from the joint family properties. It is also not disputed that the said Mr.K.B.Bangaruswamy Reddiar died intestate in the year 2005. Therefore, I could see a prima facie case in favour of the applicant / plaintiff, on her claim over the properties. Admittedly, the properties mentioned in the schedule and other properties are in possession and enjoyment of the respondents 1 & 2. It is also not disputed that the schedule mentioned properties in the Judge's summons are having so many apartments in the said three buildings consisting of three floors and two floors respectively. Apart from that, the existence of 28 rooms in the said property was also not disputed. Except the two flats in which the respondents 1 and 2 are residing, the other flats have been leased out to the respondents 6 to 25 https://hcservices.ecourts.gov.in/hcservices/ 12 by the respondents 1 and 2 and they are in occupation of the said tenanted premises on payment of rents. Similarly the only contention raised by the second respondent was that 28 rooms were leased out to bachelor students and the rents were realised by the first respondent only and the second respondent did not receive any rent from the respondents 6 to 25 or from the bachelor students. 10. The contention of the respondents 6 to 25 was to the effect that the quantum of rent as detailed in the affidavit are varied with the actual rent paid by them and they are ready to pay the actual rent payable to the said tenanted premises into the Court from the month of September 2011 onwards. The tenants have submitted that they used to pay the rent to the first respondent only. In support of the contentions raised by the second respondent and the respondents 6 to 25, two separate memos have been filed with a request to record them. 11. Considering the materials placed before this Court and the submission of both sides, I could see that the respondents 1 and 2 are residing in two flats belonging to the family without paying any rent. According to the submission of the applicant, the said flats would fetch a rent of Rs.15,000/- each and both are also collecting the rents payable by the other tenants. The list of tenants enumerated as garnishees and ranked as respondents 6 to 25 is not disputed and no particulars have been given by the https://hcservices.ecourts.gov.in/hcservices/ 13 respondents 1 and 2 whether any of the tenants has vacated the premises. Similarly, the respondents 6 to 25 did not produce the variations in the quantum of rent described in paragraph No.10 of the affidavit. The mere submission of the respondents 6 to 25 that the rents described in Paragraph No.10 of the affidavit and the advance amount paid by them are varied, nor helpful to the Court, for passing an order, cannot hold water. There shall not be any hesitation for the respondents 6 to 25 to submit the particulars of the quantum of rent and the advance paid, if really they are varied from the particulars given in Paragraph No.10 of the affidavit filed by the applicant. Therefore, the particulars given in Paragraph No.10 of the affidavit filed by the applicant, could be taken as correct. The respondents 6 to 25 have agreed to pay the rent from the month of September 2011. No doubt, the applicant has filed the application seeking for a direction against the respondents 6 to 25 in the month of November 2010 and the respondents 6 to 25 were served and they have appeared before the Court through counsel and submitted a memo stating that they are ready to deposit the rent payable to the tenanted premises from the month of September 2011. Therefore, I could see that the rent payable for the month of August 2011 shall be deposited by the respondents 6 to 25 on or before 10th September 2011 into the Court and the respondents 6 to 25 are directed to https://hcservices.ecourts.gov.in/hcservices/ 14 deposit the future rent payable for the ensuing months also on or before the 10th of the next succeeding English Calendar Month, into the Court to the credit of the Suit. As regards the quantum of rent, I have already discussed that the respondents 6 to 25 have not given any particulars about the variation in the quantum of rent or in the payment of advance amount. Therefore, they have to deposit the rents payable to the tenanted premises respectively held by them at the rate of quantum of rent detailed in paragraph No.10 of the affidavit filed by the applicant. 12. In respect of the claim over the rents collected for the 28 rooms put up in the said properties from the bachelor students, the second respondent / second defendant disputed the receipt of the said amount by saying that it was only received by the first respondent. The second respondent has not filed any affidavit to the effect to say that he has not received the said rental amounts. The mere submission of memo may not be sufficient to controvert the allegations made in the affidavit filed by the applicant. No doubt, the leasing out of 28 rooms to 108 bachelor students has been not controverted by the respondents 1 and 2. The case of the applicant / plaintiff was that the said rooms were leased out and the amounts paid by the bachelor students were appropriated by the respondents 1 and 2, even prior to the suit. The subsequent tenancy through induction of another batch of https://hcservices.ecourts.gov.in/hcservices/ 15 108 students would commence in the middle of November 2010 and run upto next six months till 15th May 2011. The respondents 1 and 2 would have leased out similarly and might have realised the amount. Thereafter also from 15th May 2011 to 15th November 2011, i.e., being the current six months, they would have leased out to another set of 108 bachelor students and would realise the amount in advance. The submission of the second respondent / second defendant in the memo that the first respondent / first defendant alone was receiving the said amount was not accepted, since it was not submitted or sworn in through an affidavit. Admittedly, the respondents 1 and 2 are in occupation of the two flats belonging to the family and are in management of the entire properties described in the Judge's summons. In view of the same, I am not able to place reliance on the submission made by the second respondent that he did not receive the money from those bachelor students and therefore, he is not liable to deposit the said amount as asked for by the applicant. Therefore, both the respondents 1 and 2 / defendants 1 and 2 are liable to deposit the said amount realised by them from and out of the bachelor students staying at the 28 rooms built in the suit properties from the date of plaint onwards, to the credit of the suit. The applicant has estimated the amount collected by the respondents 1 and 2 to be a sum of Rs.8,64,000/- for a period of six months. The respondents https://hcservices.ecourts.gov.in/hcservices/ 16 1 and 2 are directed to deposit the said amount for the first six months commencing from the date of plaint and also to deposit the rental amount collected for the next six months within the completion of the said six months, namely, on or before 15th November 2011. The said amount already realised by them for the first six months commencing from the date of plaint for six months at Rs.8,64,000/- (Rupees eight lakhs and sixty four thousand only) shall be deposited within the period of four weeks from today. Accordingly, the respondents 1 & 2 are directed to deposit every six months' collection to the credit of the suit, within the completion of the said period, till the disposal of the suit. The rent deposited by the respondents 6 to 25 as well as the amount as directed to be deposited by the respondents 1 and 2 shall accrue to the credit of the suit and it shall be decided by the Court as to its disbursement on any application made by both parties or at the time of trial as the case may be. 13. As far as the application in A.No.6671 of 2010 is concerned, the respondents 6 to 25 are directed to deposit the rent payable for the month of August 2011 on or before 10th September 2011 into the Court, to the credit of the suit and the respondents 6 to 25 are further directed to deposit the future rent payable for the ensuing months also on or before the 10th of the next succeeding English Calendar Month, into the Court to the credit of the Suit. https://hcservices.ecourts.gov.in/hcservices/ 17 As regards the quantum of rent, the respondents 6 to 25 have to deposit the rents payable to the tenanted premises respectively held by them at the rate of quantum of rent detailed in paragraph No.10 of the affidavit filed by the applicant. 14. As far as the application in A.No.6672 of 2010 is concerned, the respondents 1 and 2 are directed to deposit the sum of Rs.8,64,000/- (Rupees eight lakhs and sixty four thousand only) for the first six months commencing from the date of plaint and also to deposit the rental amount collected for the next six months within the completion of the said six months, viz., on or before 15th November 2011. The amount already realised by them for the first six months commencing from the date of plaint for six months at Rs.8,64,000/- (Rupees eight lakhs and sixty four thousand only) shall be deposited within a period of four weeks from today. Accordingly, the respondents 1 & 2 are directed to deposit every six months' collection to