Madras High Court
Commissioner To Inspect The Suit ... vs Advocate Commissioner Is Directed To ... on 6 November, 2019
Author: V.Parthiban
Bench: V.Parthiban
A.Nos.2009 of 2020 and 6321 of 2019
in C.S.No.240 of 2019
A.Nos.2009 of 2020 and 6321 of 2019
in
C.S.No.240 of 2019
V.PARTHIBAN, J.
In the application in A.No.6321 of 2019, this Court by its earlier order dated 06.11.2019 appointed one Mr.R.Siddharth, Advocate as an Advocate Commissioner to inspect the suit schedule 'A' property so as to divide the same by metes and bounds into four shares by equal value by allotting respective shares to the applicants/defendants 1 to 3 and plaintiff, and the Advocate Commissioner is directed to file a report on or before 21.11.2019 for the purpose of passing a final decree inter-se parties.
2. In pursuance of which, the learned Advocate Commissioner, after completion of the assignment given under the warrant, has submitted his report on 20.11.2019. The substance of the conclusion of the Advocate Commissioner in his report is that the subject property is incapable of division among the applicant and respondents and it is more beneficial to sell the property and the sale proceeds to be equally divided among the claimants 1/9 https://www.mhc.tn.gov.in/judis/ A.Nos.2009 of 2020 and 6321 of 2019 in C.S.No.240 of 2019 under the partition suit. In the course of his inspecting the property, the learned Advocate Commissioner has also engaged the services of a registered valuer and has come to the conclusion as to the market value of the subject property.
3. The applicant/plaintiff, not satisfied with the discharge of duties by the Advocate Commissioner, has filed her objection on 16.12.2019 to the report filed by the Advocate Commissioner. In the objection, it was categorically refuted the conclusion that the property is indivisible and the Advocate Commissioner has come to a wrong conclusion on that aspect. According to her, the proper procedure was not followed by the Advocate Commissioner, while inspecting the property and nor any opportunity was given to her while engaging the services of the surveyor/valuer for assessing the value of the property. She had also disputed the assessment of the market value of the property arrived at by the learned Advocate Commissioner.
4. While matters stood thus, subsequently before this Court, an application 2/9 https://www.mhc.tn.gov.in/judis/ A.Nos.2009 of 2020 and 6321 of 2019 in C.S.No.240 of 2019 in A.No.2009 of 2020 was filed under Section 2 of the Partition Act, 1983 by the defendant for selling the suit schedule property, as a response to the Advocate Commissioner's report that the property is indivisible. Thereafter, this Court in A.Nos.2008 to 2010 of 2020 in A.Nos.6321 and 6322 of 2019 passed an order providing an opportunity to the applicant/plaintiff to approach her sisters, who are the defendants in the suit, for an amicable settlement among themselves and posted the matter for hearing on 09.04.2021.
5. When the matters were listed for hearing on 09.04.2021 and the subsequent dates, the learned counsel appearing for the applicant/plaintiff in A.No.6321 of 2019 vehemently opposed the conclusion reached at by the Advocate Commissioner as to the factum of the property being indivisible. According to him, the Advocate Commissioner's report is not based on proper inspection and assessment. The learned counsel also submitted that the Advocate Commissioner has needlessly engaged the services of surveyor in order to come to a conclusion regarding the market value of the property, which was not the job originally assigned to him by this Court. 3/9 https://www.mhc.tn.gov.in/judis/ A.Nos.2009 of 2020 and 6321 of 2019 in C.S.No.240 of 2019
6. At this, the learned counsel for the respondents/defendants submitted that the claim by the applicant/plaintiff for division of the property would only result in the property losing its commercial value and such a scenario is not beneficial to any of the defendants or the plaintiff herself. Therefore, the best option that is available today is to sell the property and the proceeds of the same may be divided among the parties, in equal shares.
7. In reply to the said argument, the learned counsel for the applicant/plaintiff, after getting instructions from his client, submitted that in case the property is to be sold, his client is willing to buy out the shares of other three sisters, provided a proper value is arrived at in respect of the subject property. In fact, the learned counsel agreed to go by the value assessment of the earlier Advocate Commissioner in this regard, though he had objected to the same on earlier occasion.
8. However, learned counsel for the respondents/defendants would submit 4/9 https://www.mhc.tn.gov.in/judis/ A.Nos.2009 of 2020 and 6321 of 2019 in C.S.No.240 of 2019 that earlier Advocate Commissioner had made the assessment in 2019 and such assessment cannot be the basis of working out of each share value of the co-sharers in the suit property. Therefore, the counsel suggested for appointment of an Advocate Commissioner afresh to carry out the inspection and to assess the value of the property as on date. The learned counsel for the applicant/plaintiff, though expressed his reservation, but ultimately accepted for appointment of the Advocate Commissioner in order to make proper and realistic assessment of the market value of the subject property. The learned counsel for the applicant/plaintiff has also requested this Court to leave the issue as to the divisibility of the property to the new Advocate Commissioner to be appointed for his independent assessment on the said aspect as the applicant is not satisfied about the report of the earlier Advocate Commissioner on this issue.
9. This Court, in consideration of the above factual scenario and the narration, is also of the view that as a final step towards reaching any solution to the partition suit and settle the lis as among the sisters of the family, it is in 5/9 https://www.mhc.tn.gov.in/judis/ A.Nos.2009 of 2020 and 6321 of 2019 in C.S.No.240 of 2019 the fitness of the things, an Advocate Commissioner may have to be appointed to inspect the property once again, with the aid of a registered and competent surveyor/valuer, in order to make a complete assessment of the worth of the property in today's real estate market. This being the principal objective of the appointment of the second Advocate Commissioner, nonethless in order to ascertain whether the subject property is capable of divisibility without losing its real estate value or not the Advocate Commissioner may also make his assessment independently with the help of surveyor/valuer on this issue also and his finding may be made as part of his report to be submitted to this Court.
10. In this connection, Mr.J.Saravana Vel, Advocate, No.336, Thambuchetty Street, 3rd Floor, George Town, Chennai –600 001, (Mobile No.98410 88406) is hereby appointed as Advocate Commissioner to inspect the property and to ascertain the subject property is capable of divisibility without losing its real estate value and to assess an approximate and realistic market value of the property as on the date.
6/9 https://www.mhc.tn.gov.in/judis/ A.Nos.2009 of 2020 and 6321 of 2019 in C.S.No.240 of 2019
11. In carrying out the above assignment, the learned Advocate Commissioner is at liberty to engage the services of a registered and competent surveyor/valuer and seek his report from his point of view. Thereafter, the learned Advocate Commissioner shall file a consolidated report before this Court on or before the next date of adjournment. The Advocate Commissioner, before inspecting the subject property (Schedule 'A' property), shall issue notice to the parties and the Advocates representing them and shall inspect on a day or days, as per his convenience and the convenience of the parties in order to complete the task assigned to him by this Court. It is also clarified that the learned Advocate Commissioner can independently source any material for making the assessment as he deems fit.
12. The learned Advocate Commissioner shall be paid an initial remuneration of Rs.1,00,000/- (Rupees One Lakh only) to be equally shared among all the parties in the suit and and the initial remuneration shall be payable by the parties before the time the Advocate Commissioner makes his inspection of the subject property. The counsel also ensure that the payment 7/9 https://www.mhc.tn.gov.in/judis/ A.Nos.2009 of 2020 and 6321 of 2019 in C.S.No.240 of 2019 is made to the Advocate Commissioner promptly.
13. As regards the engagement of the services of a registered and competent surveyor/valuer, the learned Advocate Commissioner shall fix his remuneration/fees and the same shall be notified to the parties to the litigation, so that such remuneration/fees shall also to be shared equally by the parties. The Advocates are again directed to ensure payment to the registered surveyor/valuer, whose services being engaged by the learned Advocate Commissioner. The remuneration/fees to the surveyor/valuer is also to be borne equally by all the parties to the suit.
14. Post these applications and the suit for filing of report of the learned Advocate Commissioner and for further hearing on 03.06.2021.
mra 19.04.2021
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Speaking/Non-speaking order
Note : Upload and Issue order copy on 21.04.2021.
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https://www.mhc.tn.gov.in/judis/
A.Nos.2009 of 2020 and 6321 of 2019
in C.S.No.240 of 2019
V.PARTHIBAN, J.
mra
A.Nos.2009 of 2020 and 6321 of 2019
in
C.S.No.240 of 2019
19.04.2021
9/9
https://www.mhc.tn.gov.in/judis/