S P SHANKAR Vs. S P SUBRAMANI

JUDGEMENT

(1.) THIS application is made by the plaintiffs seeking appointment of an advocate Receiver to take charge of the property described in the Schedule to the plaint, collect the rents and deposit the same into court to the credit of C. S. No. 562 of 2004 filed by the plaintiffs for the relief of recovery of possession of the suit property from the defendants along with a direction to the first defendant to pay to the plaintiff a sum of Rs. 23,40,000/- being the arrears of damages for illegal use and occupation together with interest thereon.

(2.) AFFIDAVIT in support of the application and the counter-affidavit are perused. The court heard the learned Counsel for the applicants/plaintiffs and also for the respondents/defendants.

(3.) ACCORDING to the plaintiffs, the suit property originally belonged to one Raju mudaliar, who died issueless on 8-7-1956 leaving behind his two brothers Duraisamy mudaliar and Ratnam Mudaliar, and his widow Kuppuratnammal, and his mother. The said Raju Mudaliar executed a Will on 19-12-1948 bequeathing the plaint Schedule property to his wife for her lifetime and thereafter to be enjoyed by the children of his brother Ratnam Mudaliar, absolutely. One Shanmugam Mudaliar, the cousin brother of Raju Mudaliar, and Ratnam mudaliar were named as Executors in the will referred to above. After the death of Raju mudaliar, his brother Ratnam Mudaliar, would be the sole executor under the said will dated 19-12-1948. The said shanmugam Mudaliar applied for probate of the said Will in O. P. No. 361 of 1956, and the same was ordered on 28-2-1957. On an application filed by Duraisamy Mudaliar, the other brother of Raju Mudaliar, who was the father of the first defendant, probate granted by this Court in the said O. P. , was revoked on 25-4-1974, and thus, the O. P. was converted into a testamentary original suit in t. O. S. No. 7 of 1975. At the time when the probate was revoked, the two executors died, and the legal representatives of the two deceased executors became the plaintiffs. After elaborate trial, probate was granted on 29-5-1990. During the said proceedings, the said Duraisamy Mudaliar, the other brother of Raju Mudaliar, died, and his legal representatives were brought on record. They preferred an appeal in O. S. A. No. 125/90, and the same was dismissed by the Court on 4-10-2001. The plaintiffs are the legal heirs of Ratnam Mudaliar, in whose favour the property was bequeathed by the late raju Mudaliar. The said Kuppuratnammal, the widow of Raju Mudaliar, died on 22-2-1967. Thus, the plaintiffs have acquired title to the property. As per the terms of the Will, the suit property has to be taken absolutely in equal shares by the sons of late Ratnam mudaliar. The first son of Ratnam Mudaliar died in the year 1995 leaving behind the third plaintiff and the plaintiffs 4 to 8 as the legal heirs. Now, the plaintiffs as the legal heirs of late ratnam Mudaliar, are entitled to the property. The respondents/defendants are in illegal possession and enjoyment of the suit property. The first defendant who claims to be the owner of the suit property, and defendants 2 to 5 who claim to be tenants under the first defendant, are denying the plaintiffs' title to the suit property. The first defendant is also collecting the rents from the defendants 2 to 6 illegally. Under such circumstances, the plaintiffs have issued a notice through the counsel, which was also served on the defendants. Since the demand made thereat was not complied with, the plaintiffs were constrained to file the suit for recovery of possession and also for damages.