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2021 DIGILAW 2551 (MAD)

Siddarth Sukumar v. Snehalatha Nambiar

2021-09-24

V.PARTHIBAN

body2021
JUDGMENT : (Prayer: Application filed under Order XIV Rule 8 of O.S.Rules read with Order XXVI Rule 9 of C.P.C. to pass an order to appoint an advocate commission to inspect the premises of the respondent/defendant viz., No.9, Gopalapuram 6th Street, Chennai - 600 086 and take inventory of the movables belonging to the applicants viz., furnitures, paintings, framed photographs, pictures, picture/photo albums along with all the puja room fittings, pictures and paintings of Sabrimala and "Swamy Ayyappa" among other deities, fixtures as well as all trophies and awards of late Mr.M.N.Nambiar and late Mr.M.N.Sukumaran Nambiar, take custody of the same and file a report before this Hon'ble Court in the above suit.) 1. The applicants herein are the plaintiffs and the respondent is the defendant in the suit. 2. The present application has been filed for appointment of Advocate Commission to take inventory in respect of certain movable items belonging to the applicants. 3. The brief facts which gave rise to the filing of the suit and the present application are stated hereunder. (i) The suit has been filed by the applicants/plaintiffs for the following prayer: To pass a judgment and decree, (a) of mandatory injunction directing the defendant to forthwith return all the paintings, fixtures, framed photographs, pictures, picture/photo albums along with all the puja room fittings and fixtures as well as all trophies and awards of late Mr.M.N.Nambiar and late MR.Sukumar Nambiar which were situated in the house bearing address New door No.7 (Old No.4), 6th Street, Gopalapuram, Chennai to the plaintiffs; b) Awarding exemplary costs and costs of the suit in favour of the plaintiffs and against the defendant. (ii) The applicants herein are the grandsons of renowned Tamil film actor late Shri.M.N.Nambiar. The applicants' father Shri.M.N.Sukumar Nambiar was the first son of M.N.Nambiar. The respondent is the daughter of late Shri.M.N.Nambiar. Shri.M.N.Nambiar expired on 19.11.2008 and was survived by his wife-Smt.Rukmani Nambiar, Shri.Sukumar Nambiarapplicant's father, Shri Mohan Nambiar- second son and the respondent daughter. At the time when Shri.M.N.Nambiar died, he had left behind immovable properties measuring about 7 grounds and 1968 sq.ft of land in Gopalapuram, Chennai, with the house and building thereon, bearing address New Door No.7 (Old No.4), 6th Street, Gopalpuram, Chennai. After his death, a Deed of Partition was entered into on 06.04.2009. At the time when Shri.M.N.Nambiar died, he had left behind immovable properties measuring about 7 grounds and 1968 sq.ft of land in Gopalapuram, Chennai, with the house and building thereon, bearing address New Door No.7 (Old No.4), 6th Street, Gopalpuram, Chennai. After his death, a Deed of Partition was entered into on 06.04.2009. As per the Partition Deed, the applicant's father and grandmother, each acquired 4132.50 sq.ft of land and part of residential house, building and the land. The respondent herein and the other son, Mohan Nambiar were given a share in the partition measuring 4333 sq.ft and 4337 sq.ft. respectively of land situated behind the residential house. Thereafter, it appeared that the grand mother Shri.Rukmani Nambiar settled her share in the property on 19.10.2009 in favour her son Sukumar Nambiar, the applicants' father with the condition that she will be allowed to reside in the residential house during her lifetime. According to the applicants, their father is the absolute owner of 8265 sq.ft. of land along with the entire residential house. (iii) On 08.01.2012, the applicants' father pre-deceased their grand mother and he had not left behind any Will. The applicants' parents marriage had also been dissolved by mutual consent before the death of their father and their mother had no interest or claim on their father's properties. The applicants' grandmother, in the meanwhile, had settled her 1/3rd portion of the property from Shri. Sukumar Nambiar's share, vide Settlement Deed dated 01.02.2012, on the applicants. In terms of Clause 2 of the Settlement Deed, the respondent was permitted to reside in the property for a period of only 2 years after the applicants' grandmother passes away. In view of the fact that at that point of time, the respondent was staying in the house and taking care of her mother. (iv) By virtue of the Settlement Deed dated 01.02.2012, the applicants herein became the absolute owner of the Gopalapuram property, Chennai, consisting of 8265 sq.ft. of land and residential house. Their grand mother Smt.Rukmani Nambiar passed away on 11.04.2012. After the death of the grand mother, the applicants, the respondent and the applicant's uncle Shri.Mohan Nambiar entered into a family arrangement dated 26.08.2012. According to the terms of the family arrangement, the asset belonging to late Shri.Sukumar Nambiar would be vested absolutely on the applicants. of land and residential house. Their grand mother Smt.Rukmani Nambiar passed away on 11.04.2012. After the death of the grand mother, the applicants, the respondent and the applicant's uncle Shri.Mohan Nambiar entered into a family arrangement dated 26.08.2012. According to the terms of the family arrangement, the asset belonging to late Shri.Sukumar Nambiar would be vested absolutely on the applicants. The effect of clauses as contained in the family arrangement is that the applicants were conferred with the ownership of all the movables lying in the Gopalapuram property viz., furniture, fittings, fixtures, photographs, paintings, trophies and awards etc. which belonged exclusively to the enjoyment of their father. According to the applicants, the Gopalapuram property was containing several fitting and fixtures in the puja room along with photographs and paintings of Sabrimala and "Swamy Ayyappa" among other deities. The property in the house was also in store of several framed photographs, photo albums etc. of the applicants' grandfather, father and their family including several awards and trophies won by Shri.M.N.Nambiar, during his lifetime. According to the applicants, the photographs and the other valuable treasures are located only in the Gopalapuram residence. (v) The grievance of the applicants herein is that in 2013, the respondent/defendant had relocated herself to the present address at No.9, Gopalapuram 6th Street, Chennai-86. At that time, the applicants were living with their mother at TTK Road. Later on, they proposed to develop the Gopalapuram property and as there was no place to keep all the fittings, fixtures, framed paintings, framed family photos etc. in safe custody, it was entrusted to the respondent for safe keeping and the understanding was that the same would be returned after the property in Gopalapuram is developed. In the meanwhile, the 1st applicant was also married on 14.09.2016 and he has two children from his wedlock. After the marriage of the 1st applicant, when a request was made to the respondent for return of various photo albums pictures, there was no response from her. According to them, when the respondent's son released a book of late M.N.Nambiar in August 2019, they were shocked to find that they did not have any of the photographs featured in the book including few from their father's wedding. According to them, when the respondent's son released a book of late M.N.Nambiar in August 2019, they were shocked to find that they did not have any of the photographs featured in the book including few from their father's wedding. On enquiry, they came to know that atleast there were 20 albums in Gopalapuram property belonging to late Shri.M.N.Nambiar and Shri.M.N.Sukumar Nambiar, containing family photographs taken during functions and in various places. (vi) In the above circumstances, a letter was sent by the 1st applicant on 08.02.2021 requesting the respondent to return all the original pictures, puja room paintings, photographs and photo albums. However, there was no response from the respondents and thereafter, a legal notice dated 18.03.2021 was issued to the respondent. The respondent replied through counsel on 02.04.2021. The respondent has completely denied ever having the movables pointed out by the applicants. In the reply notice, there were also certain allegations made against the applicant. In the said circumstances, the suit has been filed for return of various immovables contained in the prayer. (vii) Pending disposal of the suit, the present application has been filed for appointment of Advocate Commissioner to take inventory of the various items listed therein to protect and safeguard their rights in the interregnum period. 4. Mr.P.R.Raman, the learned Senior Counsel appeared for the applicants reiterated the above facts. The learned Senior Counsel has drawn the attention of this Court to WhatsApp message wherein the defendant was requested to permit them to take copies of the framed photos which were on the walls of the house. In fact, a reply to the message was sent by the son of the respondent stating that the photos were lying in mother's closet right now. This was communicated on 11.03.2019. Thereafter, there was no positive response forthcoming from the respondent. The learned Senior Counsel has also drawn the attention of this Court to the clauses contained in the family arrangement dated 26.08.2012. In regard to the present application, he would only refer to Clause 16 of the family arrangement which is extracted hereunder. It is also agreed that any other assets not expressly included herein standing exclusively in the name of Sri M.N. Sukumar Nambiar will also belong exclusively to the Parties of the 3rd and 4th Parts and the other Parties shall have no right or interest in the same. 5. It is also agreed that any other assets not expressly included herein standing exclusively in the name of Sri M.N. Sukumar Nambiar will also belong exclusively to the Parties of the 3rd and 4th Parts and the other Parties shall have no right or interest in the same. 5. According to him, after setting out various other specific items any other assets not expressly included will also belong exclusively to the applicants herein. Admittedly, the photographs, fixtures and other items are part of the house hold articles left behind by late Shri.M.N.Nambiar and their father Shri.Sukumar Nambiar which are the rightful possession of the applicants herein and in order to claim the same, the suit has been filed. 6. However, fearing that these articles may be removed or concealed with the a view to frustrate the attempts of these applicants/plaintiffs, even in the event of their succeeding before this Court, the present application has been filed to secure their interest pending finalisation of the suit before this Court. According to the learned Senior Counsel no prejudice would be caused if inventory is taken as in any event, the actual rights of the parties will have to be decided in the suit proceedings. 7. Per contra, the learned counsel for the respondents/ defendants strongly objected to the appointment of the Advocate Commissioner. According to him, the application itself is not maintainable for the simple reason that no prima facie case has been made out that the applicants have absolute and exclusive title over the movables which they seek to claim in the suit. Without specifically naming the articles/movables, seeking inventory to be taken of the movables available in the house would amount to criminal trespass into the property or a needless invasion into the privacy of the respondent/defendant. 8. The learned counsel for the respondent would submit that on behalf of the applicants, no evidence has been placed to substantiate their case and if any appointment of Advocate Commissioner is ordered, paving way for third party intrusion into the private confines of the respondent and it could be unsettling and infringement of her right to privacy. According to the learned counsel the applicants have deliberately suppressed the e-mail communication dated 19.06.2019 addressed to the respondent requesting the respondent to allow them to make copies of the photographs. 9. According to the learned counsel the applicants have deliberately suppressed the e-mail communication dated 19.06.2019 addressed to the respondent requesting the respondent to allow them to make copies of the photographs. 9. According to the learned counsel, the instant application has been filed belatedly only because of the fact that recently the book of late Shri.M.N.Nambiar was released by the son of the respondent which had been appreciated quite widely in the film industry, which provoked the applicants to evince sudden interest in the movables, that are part of the household possessions in Gopalapuram residence. In actuality, the applicants have no interest whatsoever and they have no sentimental value towards the photographs, fixtures or any allied items and the present application is only to cause extreme inconvenience and annoyance intended to cause breach to the privacy enjoyed by the respondent hitherto. In the above circumstances, the application lacks in bonafides, is not maintainable in law and hence, the same is liable to be dismissed. 10. Heard the learned Senior Counsel Mr.P.R.Raman, for the applicants/ plaintiffs and the learned counsel Mr.Venkatesh Mohanraj, for the respondent/defendant. 11. The dispute herein is not regarding the sharing of any immovable properties left behind the Actor late Shri.M.N.Nambiar. On behalf of the applicants/ plaintiffs, it was submitted that the applicants have become absolute owners of the house property at Gopalapuram, Chennai and this being the admitted position, the movables which are part of the household articles are also to be enjoyed by the owners of the property as a natural corollary to the ownership rights of the property. In this regard, the family arrangement dated 26.08.2012 has been referred to, particularly, Clause 16 which has been extracted supra. As per the said clause, it was agreed among the family members including the respondent/defendant herein that any other assets, not expressly stated or included, standing exclusively in the name of Sri.M.N.Sukumar Nambiar will also belong exclusively to the parties of the 3rd and 4th part namely, the applicants herein and the other parties shall have no right or interest in the same. The family arrangement contains several clauses conferring rights on the respective family members with regard to the entitlement like jewellery, silver articles, movables in various places like Madipakkam, Ooty and deposits in banks, mutual fund etc. 12. The family arrangement contains several clauses conferring rights on the respective family members with regard to the entitlement like jewellery, silver articles, movables in various places like Madipakkam, Ooty and deposits in banks, mutual fund etc. 12. As far as the moveables which are part of the suit dispute is concerned, it has not been specifically referred to in the family arrangement. However, in the family arrangement, it is clearly stated that the details of assets which have not been expressly included and standing exclusively in the name of Shri.M.N.Sukumar Nambiar will also belong exclusively to the applicants herein, as per Clause 16. The interpretation of Clause 16 and its scope would ultimately dependent on the final determination of the suit proceedings. But, on a prima facie consideration, when Clause 16 places emphasis on what is not expressly included in the family arrangement, that belonging to late Sukumar Nambiar will exclusively belong to the applicants herein which presumably include the movables that are sought to be ascertained by a commission to be appointed by this Court in this application. 13. Although this Court is conscious of the fact that in the absence of any right over the movables seeking appointment of commission for taking inventory of the movables would result in intrusion into the cloistered private space of the respondent/defendant. At the same time, this Court cannot discard the fact that the applicants cannot be said to be without any right at all to have the copies of all the photographs, fixtures etc. in terms of the request originally made to the respondent/defendant. Ultimately, the applicants right towards return of the named articles in the plaint depend on the outcome of the suit proceedings. 14. But as far as the present application is concerned, the appointment of a commission to take inventory at the instance of the applicants who have undeniable right over the very property in which late Sri.M.N.Nambiar lived, cannot be considered to be extraneous or motivated for its rejection. After all, the movable and immovable properties belonging to late M.N.Nambiar are the common treasure, memorabilia belonging to the entire family of all concerned including the applicants herein who are none other than the grandsons of late Thespian. In the said circumstances, the request of the applicants for the limited purpose of taking inventory as in terms of the application outweigh the privacy concern of the respondent. 15. In the said circumstances, the request of the applicants for the limited purpose of taking inventory as in terms of the application outweigh the privacy concern of the respondent. 15. For the above said reasons, the Application is allowed. 16. Mr.N.Balamurali Krishnan, Advocate, residing at Plot No.278, Pillayar Koil Street, Golden George Nagar, Nerkundram, Chennai - 600 107, (Cell No. 9841946780) is appointed as Advocate Commissioner to inspect the premises of the respondent/defendant viz., No.9, Gopalapuram 6th Street, Chennai - 600 086 and take inventory of the movables belonging to the applicants viz., furnitures, paintings, framed photographs, pictures, picture/photo albums along with all the puja room fittings, pictures and paintings of Sabrimala and "Swamy Ayyappa" among other deities, fixtures as well as all trophies and awards of late Mr.M.N.Nambiar and late Mr.M.N.Sukumaran Nambiar, and file a report before this Court on or before the next date of hearing. 17. The Advocate Commissioner's initial remuneration is fixed at Rs.75,000/- (Rupees Seventy Five thousand only) which shall be borne by the applicants. 18. The Advocate Commissioner is directed to issue notice to the counsels on record for the parties and also to the parties themselves before causing inspection for the purpose of taking inventory of the items listed in the application in the address given in the application. 19. The Advocate Commissioner is also to directed to ensure his minimal presence in the house, so that the privacy of the inmates of the house need not be unduly affected while carrying out his assignments. 20. The respondent is also directed to extend her utmost co-operation for facilitating smooth discharge of the assignment entrusted to the Advocate Commissioner. 21. The initial remuneration shall be paid to the Advocate Commissioner when the parties receive their notice from him intimating them of his intended inspection and visit to the property. 22. The Advocate Commissioner is also directed to file a report on completion of the inventory process in this Court on or before the next date of hearing. 23. The Advocate Commissioner is also at liberty to take any professional assistance, in case, he requires any such assistance in carrying out his assignment. 24. Any expenses incurred for the engagement of professional assistance should also be borne by the applicants. The Advocate Commissioner is also entitled to be paid any other incidental expenses as he may incur in the process of execution of the assignment. 24. Any expenses incurred for the engagement of professional assistance should also be borne by the applicants. The Advocate Commissioner is also entitled to be paid any other incidental expenses as he may incur in the process of execution of the assignment. Post the matter for further hearing on 20.10.2021.