IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 9TH FEBRUARY 2009 / 20TH MAGHA 1930 WP(C).No. 4146 of 2009(R) OS.53/2007 of I ADDL.SUB COURT,ERNAKULAM PETITIONERS: PLAINTIFFS 1. K. RAJESWARI, AGED 79, D/O. LATE KARTHIYAYANI AMMA, KALLELIL HOUSE, THURUTHY.P.O, KURUPPAMPADY, PERUMABVOOR. 2. PROF. K. MADHURILATHA, AGED 67, D/O. LATE PADMINI AMMA, BLUE HILL, KALATHIPARAMBIL CROSS ROAD, ERNAKULAM SOUTH, COCHIN - 682 016. 3. T. RADHA MENON, AGED 67, W/O. LATE K. NATARAJ MENON, NO.3, IST STREET, TVS AVENUE, AKKARAL, CHENNAI - 600 041. 4. T.N. SURESH, AGED 48, S/O. LATE K. NATARAJA MENON, NO.3, IST STREET, TVS AVENUE, AKKARAI, CHENNAI - 600 041. 5. T. SUNITHA RAMACHANDRAN, AGED 40, D/O. LATE K. NATARAJA MENON, NO. 3, IST STREET, TVS AVENUE, AKKARAI, CHENNAI - 600 041. BY ADV. SRI.T.K.RADHAKRISHNAN RESPONDENT: ADDL. 10TH DEFENDANT SMT.C.G. BHAVANI, CHOPPULLI VEETIL, CHERANALLOOR, CHERANALLOOR VILLAGE, KANAYANNUR TALUK, ERNAKULAM DISTRICT. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 4146 OF 2009 R ------------------------------------------------------ Dated this the 9th February, 2009 JUDGMENT The plaintiffs in O.S.No.53 of 2007, on the file of the Court of the Subordinate Judge, Ernakulam, challenge the order dated 21.1.2009 in I.A.No.9131 of 2008, by which the court below appointed a Commissioner to inspect the plaint schedule immovable properties and to file a report. 2. The suit is one for partition. The writ petitioners claim 5/6 shares and they concede one share to the first defendant. Plaint A to C schedule properties are immovable properties. Schedules D to J are fixed deposits, bank accounts and post office deposits. According to the plaintiffs, the properties belonged to one Girija Menon. After her death, the properties devolved on the plaintiffs as well as the first defendant. The petitioners alleged that the second defendant, Raghunandana Menon, was a servant in the house of Girija Menon. According to the plaintiffs, Raghunandana Menon died after the institution of the suit. The sister of Raghunandana Menon, Bhavani, filed an application to get herself impleaded as additional 10th defendant. That application was dismissed by the court below. In W,P.(C) No.26013 of 2008 filed by Bhavani, this Court set aside that order and allowed her to be impleaded W.P.(C) NO. 4146 OF 2009 R :: 2 :: as an additional defendant. It was held by this Court that the issue involved in the case could not be decided in the impleading petition filed by Bhavani, who claims herself to be the legal representative of the deceased second defendant. This Court held that the disputes are to be decided in the suit itself. 3. Raghunandana Menon was a nominee of Girija Menon in respect of fixed deposits and post office deposits. The plaintiffs contend that the nominee cannot claim any rights. The additional 10th defendant contends that Raghunandana Menon has rights in the fixed deposits. It is also contended that Girija Menon wanted to make a gift of the amounts to Raghunandana Menon. 4. As regards the immovable properties, except a statement in the written statement that the additional 10th defendant has kudikidappu right, no claim as such is seen made by either the second defendant or the 10th defendant. The writ petitioners contend that in view of the factual position, the 10th defendant was not entitled to make an application for appointment of a Commissioner for inspecting the plaint schedule immovable properties, when she is not a sharer of those items. The court below appointed a Commissioner on the ground that for the purpose of identifying the properties and to find out whether third parties are in W.P.(C) NO. 4146 OF 2009 R :: 3 :: possession, as alleged by the 10th defendant, it is expedient to appoint a Commissioner for local inspection. The court below also thought that evidence cannot be shut out by the court. 5. By appointment of a Commissioner for local inspection, the rights of the petitioners are not affected. The factual details available on the spot would be brought before Court in the form of a Commission report, if a Commissioner is appointed. By such a process, none of the parties would be prejudiced. The petitioners need not incur any expenditure as well, in execution of the work by the Commissioner. May be, as contended by the petitioners, the whole exercise may turn to be in futility. But the facts required to be noticed as per the application for appointment of a Commissioner, may some times be not available at a later stage of suit. Therefore, I am of the view that the court below was justified in appointing a Commissioner. There is no scope for interference with that order in the Writ Petition. The Writ Petition is accordingly dismissed. (K.T.SANKARAN) Judge ahz/