IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 10-7-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE R.SUBBIAH O.S.A.Nos.293 and 294 of 2004 T.S.S.Natarajhun .. Appellant in both appeals vs 1.T.S.S.Nilakanthan 2.Vesanthalakshmi .. Respondents in both appeals Original side appeals preferred under Order XXXVI Rule 1 of the O.S. Rules read with Clause 15 of the Letters Patent against the common order passed by this Court in Application Nos.4500 and 4501 of 2001 in C.S.No.349 of 2001 dated 8.1.2003. For Appellant : Mr.S.Elambharathi For Respondents : Mrs.K.V.Vani for M/s.Rangarajan & Prabhakaran COMMON JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) These appeals challenge a common order of the learned Single Judge of this Court revoking the leave granted in favour of the appellant/plaintiff and returning the plaint, dated 17.4.2001 made in Application Nos.4500 and 4501 of 2001 in C.S.No.349 of 2001, a suit for partition. 2.The appellant/plaintiff sought the relief of partition as against the defendants inter alia stating that his father T.S.Swaminathan executed his last Will on 14.3.1978, whereby he made a bequest in respect of his assets to his five children equally; that the immovable properties left by him, were two flats one at Mumbai and the other at Thiruvanmiyur, Chennai; that in order to knock away the properties left by the plaintiff's father, the defendants 1 and 2 have created a Will which was a forged document; that after coming to know about the evil design of the defendants, there were exchange of notices, and hence, he has come forward with the suit for partition. 3.An application was filed seeking grant of leave to sue, and the same was also granted. After entering appearance, the defendants 1 and 2 made two applications one in Application No.4500 of 2001 seeking rejection of the leave originally granted, and the other in https://hcservices.ecourts.gov.in/hcservices/ Application No.4501 of 2001 seeking dismissal of the suit. The plaintiff was given an opportunity to file his counter. On enquiry, both the applications filed by the respondents, were allowed. Hence, these appeals have arisen before this Court. 4.The only contention put forth by the learned Counsel for the appellant in his sincere attempt of assailing the order, is that it is a suit for partition; that the plaintiff is the brother, and the defendants 1 and 2 are sisters; that it is an admitted position that they had another sister by name Usha; that she died as a spinster; that 'A' Schedule property is admittedly a property at Madras; that 'B' Schedule property is also at Mumbai; that for filing a suit for partition, if any fraction of immovable property is situate within the jurisdiction of this Court, it would suffice; that in the instant case, it is a specific pleading of the plaintiff that 'A' and 'B' Schedule properties belonged to the father, and the plaintiff is entitled to have his share; that as could be seen from the affidavits filed in support of the applications, the defendants 1 and 2 came forward with a case to state that the property covered under 'A' Schedule was purchased under 14 sale deeds in the names of the first and second defendants and also the sister Usha; that she died subsequently; that even assuming that the allegations of the defendants as found in the affidavits though not admitted, are taken as true, the plaintiff by operation of law has to succeed to the rights of the share of the said Usha since deceased; that under the circumstances, the suit for partition could be well maintained, and the claim for partition has got to be entertained by this Court within whose jurisdiction, 'A' Schedule property lies, and hence, the order of the learned Single Judge has got to be set aside. 5.In reply, the learned Counsel for the respondents would submit that it has been categorically stated that in respect of her share, the sister of the defendants 1 and 2 by name Usha, has executed a Will bequeathing her share in 'A' Schedule property in favour of the defendants 1 and 2; that they have also taken steps to probate the same, and thus, the plaintiff could not lay a claim in that property. 6.The Court paid its consideration on the submissions made. 7.Concededly, it is a suit for partition. The claim of the plaintiff is that both 'A' and 'B' Schedule properties belonged to the father; that it came to the hands of the mother, and by operation of law, the plaintiff is also entitled to have his share along with the sisters. It is contended by the respondents' side that 'B' Schedule property is in Mumbai; that as far as 'A' Schedule property is concerned, it was purchased in the year 1991 by way of 14 sale deeds in the names of the defendants 1 and 2 and also the sister Usha; and that Usha died subsequently. As far as the share of Usha is concerned, as rightly contended by the learned Counsel for the appellant, he can also put forth his claim for getting a share. In reply, as recorded above, it is contended by the respondents' Counsel that the said Usha executed a Will in favour of the defendants 1 and 2, and probate proceedings have been initiated. Now, at this juncture, the said contention as to the execution of the Will is the subject matter of the proceedings to be decided. However, now as on today, so long as the fact that 'A' Schedule property was purchased https://hcservices.ecourts.gov.in/hcservices/ by the defendants 1 and 2 along with Usha is admitted by the defendants 1 and 2 in which according to the plaintiff, by operation of law, he can have the share in respect of the share of Usha, there cannot be any impediment for allowing the plaintiff to proceed with the action as laid by him. If at all the Will has been executed by Usha in favour of the defendants and proceedings have been initiated for getting a probate as contended by the learned Counsel for the respondents, there cannot be any impediment for putting both the proceedings together, and relief could be granted on the merits of the respective claim. 8.For the foregoing reasons, the order of the learned Single Judge has got to be set aside. Accordingly, it is set aside, and both these original side appeals are allowed. The trial Court is required to give sufficient opportunity to the defendants to put forth their written statement, frame issues and proceed with the matter in accordance with law. No costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. nsv/ To The Sub Assistant Registrar Original Side, High Court, Madras. + 1 CC To Mr.Rangarajan, Advocate SR NO.36163 + 1 CC To Mr.K.J.Rebello, Advocate SR NO.36068 OSA Nos.293 and 294 of 2004 CK(CO) SRA(22/07/2008) https://hcservices.ecourts.gov.in/hcservices/