JAMBAGAVALLI AMMAL Vs. GOVINDARAJA KANDLAR

JUDGEMENT

(1.) This appeal directed against the order of Paul who, while setting aside the order of the learned Subordinate Judge of Kumbakonam , directed that the respondents do continue in possession of the proper ties and held that no case had been made for the appointment of a receiver which would result In the dispossession of the properties from the possession of the respondents. In an elaborate judgment, the learned Subordinate Judge came to the conclusion that, as there were rival claims an to possession of the properties between the appellant, who is rightfully entitled to them under the personal law, and the respondents who claim such a right only through two Wills Executed by the husband of the appellant, in order to end the controversy, it would be in the interests of all parties concerned and Above all it is just and convenient that the properties are in custodia legis through a receiver appointed by, the court. Paul J. held otherwise.

(2.) One Muthusami died on 19-9-1976, leaving behind him his widow, the appellant, who was the plaintiff in the action. He left behind several properties. The plaintiff's case was that though the properties stood in the name of Muthuswami they are her properties as tier 'father, who was affluent purchased the said properties in the name of the son-in-law and that she was entitled to all those properties in such a capacity. In the alternative, she pleaded that as the wife of Muthusami she was the Class 1 heir entitled to possession of such properties which stood in the name 'of Muthuswami. Defendants 1 and 2 are the stepbrother's son and grandson of Muthusami. The conjoint case of the defendants appears to be that they are the legatees expressed to be so under the two registered Wills executed by Muthuswami some years before his death and that they were in possession thereof pursuant to that status accredited to them by Muthuswami not only when he was alive but also because of his intentions, which are to be gathered from the two, wills referred to. The appellant's case is that Muthuswami could not have executed such Wills and the serious controversy between the parties apparently in whether those two Wills are true, valid and genuine and executed by Muthuswami as contended by defendants 1 and 2. This is a very serious contention which has to be adjudicated in the course of trial. But for the Wills, defendants 1 and 2 would not be entitled to the properties or to possess them. Realising this peculiar position, defendants 1 and 2 would say that even during the lifetime of Muthuswami, they were inducted into the properties and they continued to be in possession thereof after the death of Muthuswami pursuant to the above said Wills. In answer to this, the plaintiff-appellant would say that as Muthuswami was not enjoying good health, he asked defendants 1 and 2 to look after the properties as his representatives or attornies and not with the intention of inducting them into the properties and contemporaneously vesting in them the right to possess them after his death. Here again, there is a controversy as to how and in what manner and in what circumstances defendants 1 and 2 entered into possession of the suit properties. It is in the background of such. facts, the order of Paul J. has been appealed against by the appellant, who seeks for the restoration of the order of the learned subordinate Judge, who appointed an advocate on the panel of receivers to take charge of the suit Properties pending disposal of the suit.

(3.) Mr. Para saran, learned counsel for the appellant, would say that this is a fit case where in a receiver has to be appointed under Order 40, Rule 1 C. P. C, not only for the purpose of the preservation of the suit properties but also for the avoidance of any apprehension on the part of the appellant that the properties are likely to, be wasted or mismanaged in the course of, the hearing of the suit. Apart from mere, apprehensions, The contentions of the appellant cannot be lightly brushed aside as mere surmise pretences. On the other hand, Mr. Sridevan, would say that as defendants 1 and 2 were looking after the properties during the lifetime of Muthuswami and as there are two registered wills said to have been executed by Muthuswami when he was alive and as, in those circumstances, they are entitled to be in possession of these properties, their factual possession as on date should not be disturbed, and in any event, they may be appointed as receivers under Order 40, Rule 1 C. P. C.