KOCHUVARKI KUNJUVAREED Vs. ANTHONYKUTTY
HIGH COURT OF KERALA
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(1.) This appeal arises out of an order passed by the District Judge of Anjikaimal in a suit for partition allowing the plaintiffs application for the appointment of a receiver for the properties sought to be partitioned. The lower court appointed the first defendant who is the appellant here as the receiver and directed him to deposit one-third of the net income tentatively fixed at 600 paras of paddy and Rs. 800 per year and also to discharge Rs. 1,000 out of the arrears due to the jenmi. The facts leading up to this appeal may shortly be stated as follows: The plaint schedule properties were held under a lease executed in favour of Varkey Varkey, the predecessor-in-interest of the plaintiff and defendants in 1082. He had three sons, Kochuvarkey, Lonan and Luiz. Defendants 1 and 2 are the children of Kochuvarkey and defendants 3 to 6, the children of Lonan. The plaintiffs 1 to 4 are the children of Luiz and the 5th plaintiff is his widow. Varkey Varkey passed away in 1097 and the last of his surviving sons, namely Lonan on 31.1.1932 (i.e., in 1107). After that according to the plaintiffs, the first defendant as the eldest male member of the family was in possession of the properties on behalf of all the cosharers. Due to default in payment of rent to the landlordO.S. 781 of 1114 of the Ernakulam Munsiffs Court and O.S. 24 of 1121 of the Anjikaimal District Court were filed against the lessees. In O.S. 24 of 1121 arrears of rent to the extent of Rs. 1,564-15-10 and compensation for waste were claimed as well as recovery of possession. A decree for eviction with arrears was passed which was modified by the High Court in A.S. 588 of 1950 to one for arrears only. The plaintiffs claiming that they have been prejudiced by the irresponsible conduct of the first defendant came forward with this suit for partition claiming one-third share and pending the suit the appointment of a receiver to preserve the properties and conserve the income. They also prayed for a mandatory injunction directing the first defendant to discharge the liability under the decree in O.S. No. 24 of 1121. The first defendant contended that from 1107 the leasehold was held by him in his independent capacity and not on behalf of the family of the cosharers. According to him, the other cosharers had abandoned their rights, their contentions in the suits of the landlordbeing only that they were not liable for arrears. He pointed out that the appeal to the High Court against the decree for eviction was only by him. He denied the allegation regarding mismanagement and waste and contended that there was no ground to appoint a receiver under such circumstances. The lower court held that though there was no apprehension of possible waste and damage if possession remained with the first defendant yet as prima facie the plaintiffs seemed to be entitled to a share and there was a decree for arrears of pattom it was only just and proper to appoint a receiver. Hence it nominated the first defendant himself as such on terms already referred to.
(2.) On behalf of the first defendant it was contended here that the lower court was wrong in not finding that prima facie the plaintiffs had abandoned their right in the leasehold concerned, their share, if at all, being only 1/6th, that as the landlords decree was not being executed and substantial portion of arrears had been paid off it was wrong to consider that as a ground and under the circumstances there was no justification at all to interfere with his possession by the appointment of a receiver. A memorandum of objections has been filed on behalf of the plaintiffs, as C.M.P. 205 of 1955, their plea being that the lower court was wrong in nominating the first defendant as the receiver and fixing the income at such a low figure. On behalf of the appellant the first argument advanced is that in partition suits it is not proper to interfere with the possession of the manager by the appointment of a receiver unless on very strong grounds. AIR 1935 Mad. 402 is one of the decisions relied upon in support of this position. There it was a case of partition in a marumakkathayam family. Following the principle laid down in AIR 1920 Bombay 321 it was held that there was no justification to appoint a receiver. At page 404 it was observed as follows after referring to the Bombay case:
In that case it was held that the court will not appoint a receiver in a partition suit between members of a joint family except by consent and especially where the family property consists of land and thus in order that receiver should be appointed of joint family property in a partition suit special circumstances will have to be proved before the court will be entitled to appoint a receiver and that when an application is made to the court to take the property into its hands by appointing a receiver the plaintiffs must prove that prima facie he has a very excellent chance of succeeding in establishing the case made out in his plaint and in the next he must satisfy the court that the property in the possession of the opposite party is in danger of being wasted.
The decision was referred to in AIR 1948 Patna 195 where dealing with a suit for partition in a Hindu Mitakshara family it was held that it was not proper for the court to appoint a receiver except by consent especially where the family property consisted of land unless special circumstances were proved in order to justify such a course. Now, all these are decisions dealing with partition suits in a joint family. Here we are dealing with a case of a Christian family composed of tenants-in-common. Again these decisions only go to the extent of saying that strong grounds are to be shown to justify the appointment of a receiver in partition suits concerning joint families. No hard and fast rule can be laid down in these matters. The court has to exercise its discretion in a just and proper way as contemplated in the Code of Civil Procedure. Courts in this State have always considered it proper to appoint receivers in partition suits when circumstances justified it. Thus in Madhava Menon v. Narayana Menon (20 Cochin 151) during the pendency of the execution of a partition decree it was held that it was proper for the court to appoint a receiver as all the parties to the decree are equally entitled to the entire benefits arising from the properties and it is the duty of the court to take all necessary steps to secure to each his or her proper share of such benefits. In Konna v. Korappan (17 Cochin 111) where the Trial Court appointed one of the parties as receiver in a suit for partition it was contended before the High Court that it was irregular. The contention was negatived and it was held that in partnership and partition cases as the appointment of a stranger as the receiver will impose a burden on the estate it is always preferable to appoint one of the parties as receiver. So there is no merit at all in the contention advanced on behalf of the appellant that in partition suits it is not proper for a court to point a receiver. Similarly, the objection raised on behalf of the plaintiffs to the nomination of the first defendant also cannot stand. Here, prima facie the plaintiffs as the representatives-in-interest of one of the sons of Varkey have a share in the properties which are the subject - matter of the suit. Notices were issued to the first defendant from 1119 onwards raising their claim for a share. Abandonment of such a right has to be proved by definite evidence. Here we are concerned only with the prima facie rights of the parties. In O.S. 24 of 1121 the first defendant did not claim his sole right to the leasehold in the pleadings. Under such circumstances there is no merit in the objection raised to the order of the lower court. The lower court has been very fair to the first defendant as he himself has been appointed and only one-third of the tentative income fixed has been directed to be deposited. The objection regarding the tentative income fixed raised on behalf of the plaintiff also cannot stand.
(3.) In the result, the appeal and the memo of objections are dismissed. The parties will bear their own costs.;
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