JUDGMENT Das, J. - In this application, the Official Receiver as receiver appointed in the above Suit No. 2001 of 1937 asks for leave to sell premises Nos. 7/1B and 7/1C, Gopal Chandra Lane, subject to special conditions to be settled by him and to meet the costs of such sale and certain urgent liabilities of the estate out of the sale-proceeds and to invest the balance, if any, in Government Securities in the name of Sri Sri Gopinath Jiu, one of the Plaintiffs in the suit. The material facts are as follows: One Nilmani De, by his will, dated March 15, 1838, dedicated certain immoveable properties and monies to Sri Sri Gopinath Jiu, a Deity established by him and located in his dwelling house in Calcutta. The said Nilmani De died on January 1, 1839, and probate was issued to the executors named in the will. 2. By a decree of His Majesty's Privy Council in a litigation amongst persons interested in the aforesaid endowment it was declared that Nagendra Nath De and Kartik Chandra De, the two great grandsons of Nilmani De, were entitled to be the shebaits of the said Deity. The debattar estate at that time consisted of premises Nos. 6, 7 and 7/1, Gopal Chandra Lane, and a garden at Beliaghata. The Deity was and is located at premises No. 7, Gopal Chandra Lane, which is called the thakurbarhi. 3. By a deed, dated June 8, 1904, made between Nagendra as the first party and Kartik and his brother's widow Sushila as the second party it was declared that the first and the second parties were entitled to the said properties in equal shares and, for a mutual possession and enjoyment, the premises No. 7/1, Gopal Chandra Lane was allotted to Nagendra and premises No. 6 Gopal Chandra Lane and the Beliaghata garden were allotted to Kartik and Sushila. It was provided that the parties would hold their respective allotments down to sons, sons' sons and so on in succession with the right of gift or sale, that one party would have no claim or demand on the properties allotted to the other and that Nagendra would pay Rs. 1,582 as owelty money to Kartik and Sushila. It was provided that the parties would hold their respective allotments down to sons, sons' sons and so on in succession with the right of gift or sale, that one party would have no claim or demand on the properties allotted to the other and that Nagendra would pay Rs. 1,582 as owelty money to Kartik and Sushila. The thakurbarhi (No. 7) was left joint and it was agreed that the Deity would reside there and the two parties would perform the sheba by turns of six months and be responsible for payment of rates and taxes of the thakurbarhi in equal shares. 4. Pursuant to the said deed, the thakurbarhi remained in joint possession of the two parties and they took separate possession of the properties allotted to them respectively. It appears that Nagendra made extensive improvements on premises No. 7/1, Gopal Chandra Lane, and got the same divided and numbered as four separate premises, namely, Nos. 7/1A, 7/1B, 7/1C and 7/11), Gopal Chandra Lane. 5. By a deed, dated May 25, 1928, after reciting the debattar character of the properties, the setting apart of No. 7, Gopal Chandra Lane as the thakurbarhi and the separate allotment of the other properties by the deed of 1904 and the division of the turns of worship, Nagendra declared that his sons would be shebaits in his place and directed them to perform the sheba during his turn of worship from Baisakh to Ashwin of each Bengali year. 6. Nagendra died leaving his widow Chamatkar Mohini and four sons Kshitindra, Rabindra, Phanindra and Satyendra. Kartik died leaving three sons, viz., Ajit, Jiban and Nirmal. The members of the two branches continued in separate possession of their respective allotments and in joint possession of the thakurbarhi and performed the sheba of the Deity, during the respective turn of the two branches, out of the income of the properties allotted to them respectively. Nirmal, the youngest son of Kartik, died sometime ago, but the Official Receiver has not been able, in spite of advertisements, to ascertain whether he has left any heir. Sushila, the widow of Kartik's brother, is also dead. 7. Nirmal, the youngest son of Kartik, died sometime ago, but the Official Receiver has not been able, in spite of advertisements, to ascertain whether he has left any heir. Sushila, the widow of Kartik's brother, is also dead. 7. In December, 1937, Phanindra, the third son of Nagendra, alleging that he had been excluded from the management of the debattar estate and that his three brothers and mother were mismanaging and wasting the same, filed the above Suit No. 2001 of 1937 in the names of the Deity Sri Sri Gopinath Jiu represented by himself as next friend and of himself as the two Plaintiffs against his three brothers, Kshitindra, Rabindra and Satyendra and his mother Chamatkar Mohini for the removal of his three brothers from the office of shebait, for a declaration that he had become entitled to be the sole shebait; for construction of the two deeds of 1904 and 1928 and ascertainment of rights of parties thereunder; for appointment of new shebait or shebaits, if necessary; for an injunction restraining Chamatkar Mohini from interfering with the management of the said properties; for the framing of a scheme relating to the turn of worship to which Nagendra was entitled; if necessary, for division of the turn of worship; for accounts in respect of the Defendants' dealings and for other reliefs. The sons of Kartik, who constituted the other branch of shebaits of the Deity, were not made parties to the suit and consequently no notice of any proceeding was given to any of them. 8. On February 7, 1939, a decree was passed in this suit (No. 2001 of 1937) by consent of all parties thereto in accordance with certain terms of settlement. By Clause 1 of the said terms it was agreed and declared that the premises Nos. 7, 7/1A, 7/1B, 7/1C and 7/1D, Gopal Chandra Lane absolutely belonged to the Plaintiff Deity and that the Deity would continue to be located at No. 7, Gopal Chandra Lane, and that Phanindra, Kshitindra, Rabindra and Satyendra representing the branch of Nagendra were, as shebaits, entitled to perform the sheba of the Deity during the first half of each Bengali year, that is to say, during the turn of worship of Nagendra. By Clause 2 the turn of worship of Nagendra was subdivided amongst his four sons as therein mentioned. By Clause 2 the turn of worship of Nagendra was subdivided amongst his four sons as therein mentioned. By Clause 3 the Official Receiver was appointed receiver of Nos. 7/1A, 7/1B, 7/1C and 7/1D, Gopal Chandra Lane, and the rents issues and profits thereof. He was also appointed receiver of the thakurbarhi (No. 7), but only during the turn of worship of the branch of Nagendra. Clause 4 enjoined the Official Receiver to disburse the rents, issues and profits for the following purposes and in the following order, namely:--(a) in payment of his commission, revenue and taxes, (b) in setting apart 10 per cent, of the gross collections as a reserve fund for repairs, (c) in payment of Rs. 50 per month to Sm. Tarubala (wife of Kshitindra) in liquidation of the sum of of Rs. 1,500 to be advanced by her for meeting certain costs and expenditure detailed in Clause 8 and (d) in payment of the balance of the income of the whole year to the shebait whose turn of worship should fall within that year. By Clause 8, it was declared and acknowledged that there was no fund out of which the costs of the suit and the costs of urgent repairs to the thakurbarhi could be met and the parties agreed that the receiver should raise a loan of Rs. 1,500 on the mortgage of the properties and disburse the same as follows; namely, in payment of Rs. 900 to the Plaintiff's attorney as his settled costs of the suit, Rs. 379 to the Defendants' a attorney as his settled costs of the suit, Rs. 150 as contribution towards costs of repairs of thakurbarhi, Rs. 25 as costs of the mortgage deed and Rs. 46 as the receiver's commission and expenses. It will be observed that the bulk of the sum of Rs. 1,500 proposed to be raised on mortgage was required for meeting the costs of the suit. The terms of settlement were, however, certified for the benefit of the Plaintiff Deity. Pursuant to this consent decree the Official Receiver took possession of the properties shortly after the passing of that decree. 9. Tarubala, the wife of Kshitindra, however, declined to advance Rs. 1,500 or any money. The attorneys kept on pressing the Official Receiver for payment of their settled costs. Pursuant to this consent decree the Official Receiver took possession of the properties shortly after the passing of that decree. 9. Tarubala, the wife of Kshitindra, however, declined to advance Rs. 1,500 or any money. The attorneys kept on pressing the Official Receiver for payment of their settled costs. In August, 1940, the Official Receiver applied to Court for leave to raise a sum of Rs. 2,500 on a mortgage of the said four premises. It was stated in the petition that Rs. 2,290 was urgently needed for meeting the following expenses, namely: Rs. 900 for Plaintiffs' attorney's costs; Rs. 379 for Defendants' attorneys' costs; Rs. 586-6-9 for repairs of No. 7/1D, Gopal Chandra Lane; Rs. 150 for contribution for repairs of thakurbarhi; Rs. 150 for brokerage and expenses and Rs. 126 for his commission. On August 28, 1940, an order was made granting leave to the Official Receiver to raise a loan of Rs. 2,500 on the mortgage of the said four premises and to apply the same towards the aforesaid expenses. The Official Receiver was given the costs of that application out of the estate and the parties appearing were directed to bear their own costs. 10. The Official Receiver could not, in spite of efforts, secure any person willing to advance the amount on the security of the debattar properties. There was correspondence between the Official Receiver and the attorneys for the parties and several meetings were held. Eventually, at the instance of the attorneys of both parties, the Official Receiver applied to Court for leave to sell premises Nos. 7/1B and 7/1C, Gopal Chandra Lane, and on January 6, 1942, the Court made an order giving leave to the Official Receiver to sell 7/1B and 7/1C, Gopal Chandra Lane, by private treaty or public auction after fixing a reserve price and to utilise the sale-proceeds in paying the liabilities mentioned in the petition. The Official Receiver was given costs of that application. The costs of the parties of the previous application, which had then been disallowed, and their costs subsequent to the decree were included in. this application and allowed. 11. Pursuant to the last mentioned order the Official Receiver had the two properties surveyed by a well-known firm of surveyors who valued the two properties at Rs. 15,000 in one lot because they could not be demarcated and sold separately. this application and allowed. 11. Pursuant to the last mentioned order the Official Receiver had the two properties surveyed by a well-known firm of surveyors who valued the two properties at Rs. 15,000 in one lot because they could not be demarcated and sold separately. The sale was fixed for July 11, 1944. 12. On July 11, 1944, the Official Receiver received two letters from two lawyers acting respectively for Ajit and Jiban, the two surviving sons of Kartik, pointing out the debattar character of the properties, their liability to meet the deb sheba expenses, the easements which the thakurbarhi was alleged to have had over them, the invalidity of the proceedings and their clients' intention to take legal steps. This letter was read at the sale, but the attorneys for the parties insisted on the sale being proceeded with. Accordingly, the Official Receiver proceeded with the sale and one Sarbatosh Sen was declared the highest bidder and purchaser of the said premises at and for Rs. 30,200. The unusually high price is explained by the fact that Sarbatosh Sen was the owner of the adjoining premises and was keen on buying these properties. He paid 25 per cent, of the purchase-money in terms of the condition of sale. On July 16, 1944, a formal agreement for sale in writing was executed by the Official Receiver and Sarbatosh Sen. 13. Investigation of title followed and various requisitions on title were put and answered, but eventually, on August 9, 1944, Sarbatosh Sen, through his solicitors, Messrs. N.C. Bural and Pyne rejected the title and demanded back the earnest money. The two premises were out of repairs and fetched very little rent and the sale at Rs. 30,200 of the premises, which had been valued at Rs. 15,000, was considered a bargain and the Official Receiver and the parties, consequently, insisted on Sarbatosh Sen completing the purchase. 14. Sarbotosh Sen died on October 22, 1944, leaving his widow Jogmaya Dasi and five sons as his heirs. 15. On January 9, 1945, the Official Receiver, on an ex parte application, obtained the leave of this Court to file a suit for enforcing the agreement for sale and filed suit No. 42 of 1945 against Jogmaya Dasi and the sons of Sarbatosh Sen for specific performance of the agreement, dated July 16, 1944. 15. On January 9, 1945, the Official Receiver, on an ex parte application, obtained the leave of this Court to file a suit for enforcing the agreement for sale and filed suit No. 42 of 1945 against Jogmaya Dasi and the sons of Sarbatosh Sen for specific performance of the agreement, dated July 16, 1944. The Defendants in that suit filed their written statement contesting the claim. The defence was that the deed of 1904, the proceedings in Suit No. 2001 of 1937 and the decree and orders made therein were not valid and binding on the Deity; that the parties to that suit, other than the Deity, were but some of the shebaits and, as such, the suit was not maintainable and no title could be passed by a sale held in a suit in which all the shebaits were not parties; that, even if the order for sale was valid, there was in fact no legal necessity for selling the debattar properties; that the alleged necessity, if any, was brought about by the mismanagement of the Official Receiver and, finally, that, in any event, the alleged necessity did not justify the sale of two of the properties belonging to the Deity. 16. The suit came up for final disposal before me. After hearing the evidence and considering the arguments of Learned Counsel on both sides, I was not persuaded that the deed of 1904 was anything but what it, in terms, purported to be, namely, a deed of partition or that as a deed of partition it was binding on the Deity. I was not convinced that, even if that deed constituted an arrangement amongst the shebaits for separate management of the debattar estate, the members of the branch of Kartik ceased to be shebaits or were precluded, for all times to come, by reason of such arrangement, from intervening, if the shebaits of the branch of Nagendra mismanaged or wasted the properties entrusted to their management and care. I was of opinion that, in matters of mortgage and sale of debattar properties, all shebaits must act together. I was of opinion that, in matters of mortgage and sale of debattar properties, all shebaits must act together. The shebaits of the branch of Kartik had not been made parties to Suit No. 2001 of 1937 or to the consent-decree and they were not bound by the decree or orders made therein and it was open to them, if they could make out a good and sufficient ground, to challenge the sale. I was satisfied, on the authorities, that the order of court for sale would not give absolute protection to the purchaser, if his title was challenged at a future date. Finally, I held that the Official Receiver had not sufficiently discharged the onus of proof of legal necessity, which, apart from the order of court, would justify the same, for the existence of legal necessity had to be judged having regard to the whole estate of the Deity including that part of it which was in the hands of Kartik's branch and there was no evidence as to the estate of the accounts of that part of the estate. I came to the conclusion that the title was a highly doubtful one and a court of equity should not force such a doubtful title on an unwilling purchaser. In the result, I dismissed that suit with costs and directed the Official Receiver to refund the 25 per cent, of the purchase money, which had been deposited by Sarbatosh Sen, with interest thereon at 6 per. cent. The reasons for my decision will be found set out in extenso in my judgment since, reported in ILR (1946) Cal. 378. 17. The net result of all the proceedings I have narrated above has been that the sum of Rs. 20,879-12 is now said to be required by the Official Receiver to meet all the liabilities of the estate as estimated and set out in para. 23 of the present petition. This total sum includes Rs. 9,100 for the Official Receiver's costs including those payable by him to the Defendants in the specific performance suit, Rs. 6,491-14 for costs of the parties and Rs. 3,961 for estimated costs of repairs. Thus, the liabilities which were estimated at the date of the decree at Rs. 1,500 rose to Rs. 2,500 at the date of the order for sale and have now mounted up to a figure well over Rs. 20,000. 6,491-14 for costs of the parties and Rs. 3,961 for estimated costs of repairs. Thus, the liabilities which were estimated at the date of the decree at Rs. 1,500 rose to Rs. 2,500 at the date of the order for sale and have now mounted up to a figure well over Rs. 20,000. The balance now lying in the hands of the Official Receiver is said to be only Rs. 1,215-12. It is in these circumstances that the Official Receiver has made the present application for leave to sell the said two premises subject to special conditions as to title so that the sale may not be infructuous again for defect of title. 18. Notice of this application has been served on all parties to the suit as well as on the two surviving sons of Kartik. Mr. A. N. Bose, the attorney for the Defendants, supports this application. The Deity, which has been represented, for the purposes of this application, by an independent next friend appointed by the Court, opposes the. application. Ajit and Jiban, the two sons of Kartik, who have appeared under protest, also oppose it. The Plaintiff Phanindra has not appeared before me on this application. 19. Mr. A.C. Mitra and Mr. S. Guha, appearing respectively for the two sons of Kartik and the Deity, have founded their (opposition mainly on the reasonings adopted by me in my previous judgment. They contend that the deed of 1904 as a deed of partition was not binding on the Deity and that, even if it be binding on the parties thereto and their respective heirs as a scheme of separate management, it could not in law authorise the mortgage or sale of the properties by shebaits of one branch without the consent and concurrence of those of the other branch. The argument is that the members of both branches continue to be shebaits of the Deity and any alienation of any property must, in case of necessity, be made by all of them acting together. The right of suit in respect of the debattar properties is vested in the whole body of shebaits and they must be joined in a suit relating to the debattar estate. In this case the sons of Kartik should have been so joined ab initio or, at any rate, prior to the consent-decree, whereby the properties were directed to be mortgaged. In this case the sons of Kartik should have been so joined ab initio or, at any rate, prior to the consent-decree, whereby the properties were directed to be mortgaged. As they were not so joined, the suit was not properly constituted and they are not bound by the decree or orders made therein and, consequently, the Deity also is not bound thereby,. They contend that, as the Deity or its estate was not properly before the Court, the Court could not appoint any receiver over its estate and, in any event, could not then and cannot now direct a sale of its properties to reimburse the receiver so improperly appointed. They conclude by saying that the remedy of the Official Receiver lies, if at all, against the parties who procured his appointment and that the Official Receiver is not entitled to look for his indemnity to the estate which is in his possession, but which belongs to the Deity, who, for want of proper representation, is not, in the eye of the law, before the Court at all. I have to examine the arguments, which have been so very ably and forcefully advanced by Learned Counsel, in the light of legal principles regulating the receiver's right of indemnity as enunciated in judicial decisions and against the background of the facts and circumstances of this case. It will be noticed, as I examine the position, that this right of indemnity of the receiver depends on different considerations, having regard to the nature and circumstances of particular cases. It is, therefore, necessary to take note of different contingencies attending different cases in which the question of indemnity may arise. 20. The effect of an order for the appointment of a receiver over a property is that the court takes the property into its own custody and assumes its management by and through its own officer, the receiver. The possession of the receiver is the possession of all the parties to the action according to their respective titles. The receiver does not collect the rents, issues and profits by virtue of any estate vested in him but by virtue of his position as an officer of the court appointed to collect property upon the title of the parties to the action. The receiver is not, however, the agent of the parties. The receiver does not collect the rents, issues and profits by virtue of any estate vested in him but by virtue of his position as an officer of the court appointed to collect property upon the title of the parties to the action. The receiver is not, however, the agent of the parties. In describing the position of the receiver or the manager of a business vis-a-vis the parties to the suit in which he was appointed, Lord Esher M.R. observed in Burt, Boulton and Hayward v. Bull (1895) 1 Q.B. 276, 279: They do not appoint him, he is not bound to obey their directions; and they cannot dismiss him, however much they may disapprove of the mode in which he is carrying on the business. 21. On the other hand, although the court takes possession of the property and manages it through the receiver and can dismiss him at its pleasure or give him directions in the management, nevertheless the receiver is not the agent of the court either. Said Lord Esher M.E. in the same case at p. 279: The incidents of his relation to the court are such as would, if they existed as between him and an ordinary person, constitute him an agent of such person; but it is of course impossible to suppose that the relation of agent and principal exists between him and the court. 22. The parties cannot be liable for the act of the receiver, for he is not their agent and the court cannot clearly be liable. Third parties dealing with the receiver cannot, therefore, ordinarily look to the parties or to the court, but must prima facie look to the receiver for enforcing their rights and claims. The receiver in his turn is not entitled to be indemnified by the parties personally, even though he had been appointed receiver with their consent. The receiver as an officer of the court has ordinarily to look to the assets under the control of the court for his indemnity. Thus observed Warrington J. in relation to a receiver of a partnership business with power to carry on the business in Boehm v. Goodall (1911) 1 Ch. 155, 161-162: Such a receiver and manager is not the agent of the parties, he is not a trustee, for them, and they cannot control him. Thus observed Warrington J. in relation to a receiver of a partnership business with power to carry on the business in Boehm v. Goodall (1911) 1 Ch. 155, 161-162: Such a receiver and manager is not the agent of the parties, he is not a trustee, for them, and they cannot control him. He may, as far as they are concerned, incur expenses or liabilities without their having a say in the matter. I think it is of the utmost importance that receivers and managers in this position should know that they must look for their indemnity to the assets which are under the control of the court. The court itself cannot indemnify receivers, but it can, and will do so out of the assets, so far as they extend, for expenses properly incurred; but it cannot go further. It would be an extreme hardship in most cases to parties to an action if they were to be held personally liable for expenses incurred by receivers and managers over which they have no control. But the receiver here says that this is not the ordinary case, because the judgment appointing him was by consent and, by consenting, all parties have impliedly requested him to incur these liabilities. In my opinion that fact makes no difference at all. If I were to accede to that argument, I should have to hold in every case that the person who puts the court in motion and gets a receiver appointed would have to indemnify the receiver. The fact that the order was made by consent does not in my opinion distinguish this case from the numerous cases in which orders have been made without consent. 23. As the receiver has ordinarily to look to the assets tinder the control of the court for his remuneration, costs, charges and expenses, the law gives him a lien on the estate. In Bertrand v. Davis (1862) 31 Beav. 429 (435-6) : 54 E.R. 1204, 1207. Sir John Romilly M. It. summarized the result of the cases as to the receiver's or manager's lien thus: The three following propositions may, I think, be deduced from the above-mentioned cases: In the first place, that a lien on the estate exists for the costs of management where the management has been conducted by a person authorised to do so by the owner of the property. In the second place, that though there be no express appointment of the manager, yet if the persons interested in the estate know that he is performing the duties and do not interfere, then they must be presumed to have acquiesced in his continuance in that office, and they cannot dispute his claim to a lien on the estate, for the expenditure which, by their tacit acquiescence, they have encouraged him to make. In the third place, where a receiver or manager is appointed by the court, in a suit properly constituted, such manager is to be considered as appointed on behalf of all persons interested in the property, and he is entitled to his ordinary commission and allowance, and also to a lien on the estate, as against all persons interested in it, for the balance, whatever it may be, that shall be found to be due to him on taking his accounts. 24. The general rule as to the allowance of costs, charges and expenses and the indemnity of a receiver is thus formulated in Halsbury's Laws of England (2nd Ed.), Vol. XXVIII, Article 160, p. 83: A receiver is entitled to be allowed all costs, charges and expenses and to be indemnified against all liabilities properly incurred in the protection and preservation of the property committed to his charge, or otherwise in the course of his duties even though they result in loss, and the right to indemnity is not lost by the termination of his office; but if he suffers any costs to accrue which ought to have been prevented, he is liable to pay them out of his own pocket. 25. In Kerr on Receiver (10 Ed.), p. 317, the law is summarised as follows: A receiver is entitled to have out of the funds collected or realised by him his costs, charges and expenses properly incurred in the discharge of his ordinary duties, or in the performance of extraordinary services which have been sanctioned by the court. 26. At p. 319 the limitations of this right are stated in the following words: The receiver's claim is, however, limited to the amount of the assets. He has no claim against the parties personally if the assets are deficient even though he may have been appointed under a consent order in a partnership action. 27. 26. At p. 319 the limitations of this right are stated in the following words: The receiver's claim is, however, limited to the amount of the assets. He has no claim against the parties personally if the assets are deficient even though he may have been appointed under a consent order in a partnership action. 27. It will appear, on an examination of the authorities which are relied upon by the authors and certain passages from some of which authorities I have quoted above, that each of those suits was filed in a court which had jurisdiction to entertain it and each of them was properly constituted in the sense that all parties interested in the properties over which the receiver was appointed were impleaded as parties therein and as such were before the court and the receiver was properly appointed. Those authorities, therefore, only establish that a receiver properly appointed by a competent court in a properly constituted suit is entitled to be re-imbursed for his costs, charges and expenses out of the estate over which he is so appointed and has a lien over such estate and that the parties to the action are not personally liable to the receiver even if his appointment was made with their consent. As long as such a receiver acts properly upon, orders of court he is entitled to his indemnity even if the estate has not derived any appreciable benefit or even if it has suffered loss. The passages I have quoted from Halsbury and Kerr must, therefore, be read as applicable to cases of proper appointment of a receiver in a properly constituted suit filed in a competent court. The cases of Batten v. Wedgwood Coal and Iron Company (1884) 28 Ch. Div. 317 and Mohan Bibi v. Shyama Bibi ILR (1903) Cal. 937 cited by Mr. Mukerji on behalf of the Official Receiver are cases of that class. 28. The question then arises: Are the principles laid down in those cases of universal application? Do they apply when the court has no jurisdiction to entertain the suit or the suit is not properly constituted or the appointment of the receiver is otherwise improper or illegal? 29. In Premlall Mullick v. Sumbhoonath Roy ILR (1895) Cal. 28. The question then arises: Are the principles laid down in those cases of universal application? Do they apply when the court has no jurisdiction to entertain the suit or the suit is not properly constituted or the appointment of the receiver is otherwise improper or illegal? 29. In Premlall Mullick v. Sumbhoonath Roy ILR (1895) Cal. 960, 973 the facts shortly stated were as follows: One Nanda Lal Mullick died in February, 1891, after having made his will on August 5, 1889. The executors named in the will took out probate and administered the estate till August 14, 1893, when, u/s 31 of the Administrator-General's Act, they transferred the estate to the Administrator-General. The infant adopted son of Nanda, by his mother and next friend, on various charges of misconduct and waste on the part of the executors, filed a suit against the executors and the Administrator-General for administration of the estate, for the appointment of a receiver, for an injunction restraining the Administrator-General from taking possession of the estate, for the removal of the executors from the office of trustees, for accounts and other reliefs. The suit was framed mainly with the object of obtaining relief against the executors and the only relief sought against the Administrator-General was the appointment of a receiver and injunction. This claim was based on the sole ground of the invalidity of the transfer executed in his favour by the executors. It was arranged that the issue as to the invalidity of the transfer would be dealt with and tried as a preliminary issue in the form of an application for injunction and receiver. An application was, accordingly, made and the only question argued was one relating to the validity of the transfer. On December 18, 1893, Sale J., holding that the transfer was invalid, allowed the application and appointed a receiver. The appeal Court by majority upheld the decision of Sale J. on March 16, 1894. The Administrator-General appealed to the Judicial Committee. In the meantime, the Administrator-General, in view of his appeal, declined to file any written statement and the attorneys for the executors Defendants intimated to the Plaintiff's attorney that they had no further instruction in the matter. The suit was, accordingly, transferred to the undefended list and an ex parte decree for administration was passed on May 7, 1894. In the meantime, the Administrator-General, in view of his appeal, declined to file any written statement and the attorneys for the executors Defendants intimated to the Plaintiff's attorney that they had no further instruction in the matter. The suit was, accordingly, transferred to the undefended list and an ex parte decree for administration was passed on May 7, 1894. At the instance of the Plaintiff, various orders were from time to time made by the Court authorising the receiver to make necessary repairs to various properties belonging to the estate and to pay monthly allowance to the Plaintiff. Various proceedings, e.g., filing of accounts by the executors, advertisement for creditors, took place. On May 11, 1895, the Judicial Committee allowed the Administrator-General's appeal, and not only reversed the order of Sale J., dated December 18, 1893, and the order of the appeal Court, dated March 16, 1894, but dismissed the whole suit against all the Defendants. Application was made for filing the order in Council in this Court. Sale J. held that it was not competent for him to go into the question as to whether the order of dismissal of the whole suit by the Judicial Committee had been made under a misapprehension or mistake and he directed that the order must be filed. As regards the receiver appointed in that suit Sale J. made the following observation at p. 973: It is, however, beyond all doubt that the order of this Court declaring the invalidity of the transfer to the Administrator-General and appointing a receiver has been reversed by the order in Council and, a clear indication is given in the order that the Administrator-General should be restored to the possession of the estate. The order of dismissal of the suit, which follows on the reversal of the order appointing the receiver, clearly operates as a discharge of the receiver and was intended so to operate. It therefore remains for this Court, in whose possession the estate is, to take the necessary steps for the protection and preservation of the estate non-sequent on the discharge of the receiver. Nor do I think the filing of the order dismissing the suit can in any respect operate prejudicially as against the receiver. I should be sorry to think that there is any real doubt or misapprehension as to the position of the receiver in this case. Nor do I think the filing of the order dismissing the suit can in any respect operate prejudicially as against the receiver. I should be sorry to think that there is any real doubt or misapprehension as to the position of the receiver in this case. A receiver, though discharged by the dismissal of the suit in which he was appointed, is entitled to a lien on the estate for all his just claims and allowances. 30. Then the learned Judge quoted the third proposition laid down by Sir John Somilly M.E. in Bertrand v. Davis (supra) and referred to the cases of Fraser v. Burgess (1860) 13 Moo. P.C. 314 (346) : 15 E.R. 118 and Batten v. Wedgwood Coal and Iron Company (supra) and concluded as follows: On this principle it follows that the court will not compel a receiver, who has been discharged, to make over the property in his possession, until his lien has been satisfied or provided for by a sufficient indemnity. The relevant part of the order of Sale J. was as follows: 2. That the receiver do proceed to pass his final accounts and on satisfaction of what may be due to him, and, on being sufficiently indemnified as to any engagements properly entered into by him during his management of the estate, he do make over possession to the Administrator-General. 31. It will be observed that the suit was filed in a Court haying jurisdiction to entertain it and was properly constituted in the sense that all necessary parties were before the Court. It is clear, however, in view of the decision of the Judicial Committee, that the order should not, on the facts of that case, have been made, and that the appointment of the receiver was improperly obtained and yet the receiver so improperly appointed was declared to have a lien on the estate which was vested in the Administrator-General who had strenuously opposed the appointment of the receiver from the very beginning. On what principle, I ask, did the Court indirectly make the Administrator-General to pay the expenses of the receiver? The expenses incurred by the receiver, e.g., in repairs, obviously benefited the estate and the parties. On what principle, I ask, did the Court indirectly make the Administrator-General to pay the expenses of the receiver? The expenses incurred by the receiver, e.g., in repairs, obviously benefited the estate and the parties. The monthly allowances paid to the infant Plaintiff was, in view of the fact that the Plaintiff was a beneficiary under the will and, as such, entitled to get some allowance for his maintenance ultimately debitable to him, presumably not detrimental to the estate. The decision of Sale J., would be well founded in equity on the ground that the estate and the parties had been benefitted by the expenditure. But Sale J. did not, in terms, purport to base his decision on any theory of benefit to the estate or the parties. The decision, as I understand it, is based on broader general principles, namely, that when, in a properly constituted suit filed in a Court having jurisdiction to entertain it, the Court appoints a receiver and the receiver incurs liabilities under orders of court, then, however erroneous the orders of the court may have been, on the facts of that particular case and irrespective of the question whether the estate and the parties have benefitted or not, the Court will protect its own officer, the receiver, who has incurred liabilities under its own orders and give him a lien on the Court will protect its own officer, the receiver, who has incurred liabilities under its orders and given him a lien on the estate. 32. Next, take a case where a person is wrongly or falsely sued. Suppose A files a suit against B wrongly or falsely alleging that A is the partner of B in respect of a business or that A is the co-owner of B in respect of a valuable property or that A is the real owner of certain property standing in the name of B who is the benamdar. Suppose, in such a suit, the Plaintiff succeeds in bolstering up a prima facie case of title. What is the Court to do? Is it to wait until the title is established at the trial? In that case, an unscrupulous Defendant may, by raising a false plea of title, inflict irreparable loss on the Plaintiff. In such circumstances, the court may appoint a receiver. What is the Court to do? Is it to wait until the title is established at the trial? In that case, an unscrupulous Defendant may, by raising a false plea of title, inflict irreparable loss on the Plaintiff. In such circumstances, the court may appoint a receiver. Suppose the court, in spite of the objection of B and his denial of A's title, appoints a receiver of the business or the property in suit and subsequently, at the trial, the court finds that A is not the partner of B or the co-owner or real owner of the property, as the case may be, and the suit is dismissed. How will the remuneration, costs, charges and expenses in the meantime-incurred by the receiver under orders of court be paid? Here, there is no suggestion of lack of jurisdiction in the court to entertain the suit or to make the order of appointment or of the absence of necessary parties. All that has happened is that A preferred a false or an unfounded claim. Should the receiver be allowed his costs, charges and expenses out of the property, leaving the innocent Defendant to look to the Plaintiff for making good the loss? Or, should the Defendant get back his property undiminished by the receivership expenses, for which he is not responsible and which he did not desire, leaving the innocent receiver to look for his indemnity to the unsuccessful Plaintiff? In M.S. Naikwara v. Ma Aye Byu ILR (1923) Ran. 770 the Plaintiff obtained the appointment of a receiver over properties belonging to A and also properties belonging to B. B was subsequently held to have been wrongly joined and was dismissed from the suit and the receiver returned her properties to her after deducting his. remuneration and costs, charges and expenses. B applied to the trial judge that the Plaintiff should make good to her the moneys deducted by the receiver. It was held that the trial judge was right in allowing the claim by the application of the principle of restitution. remuneration and costs, charges and expenses. B applied to the trial judge that the Plaintiff should make good to her the moneys deducted by the receiver. It was held that the trial judge was right in allowing the claim by the application of the principle of restitution. This case, therefore, establishes that, where in a properly constituted suit filed in a court of competent jurisdiction, the Plaintiff makes a false claim and obtains an order for the appointment of a receiver but is unsuccessful in establishing his right and the suit is ultimately dismissed, he may personally be made to pay the loss suffered by the Defendant by reason of such improper appointment of the receiver. In that case, however, there was no contest between the receiver and the Defendant and the latter was content to look for redress, to the unsuccessful Plaintiff, presumably because he was solvent. Suppose the Plaintiff, in such a case, is. a, man of straw. Which of the two innocent persons, the receiver and the Defendant, should suffer? No decision in point has been cited. I am inclined to think that, in such a case, the court may adopt the decision of Sale J., to which I have already referred, and lean towards the receiver, unless the latter is found to have been guilty of any improper conduct towards the Defendant, for otherwise no court will feel free to appoint a receiver in any case, where there is any the least doubt as to title and nobody will be safe in accepting the office of a receiver in such a case. Public policy demands that the court, in such a case, should have the power, not only to appoint a receiver in a prima facie case being made out, but also to protect its own officer by giving him a lien on the estate and allow the receivership expenses to the Defendant as part of his costs against the unsuccessful Plaintiff, as was done in Naikwara's case (supra). The Defendant may, in such a case, suffer loss, for he may not recover anything from the Plaintiff, but that, I suppose, is one of the evils of litigation which cannot be avoided. The Defendant may, in such a case, suffer loss, for he may not recover anything from the Plaintiff, but that, I suppose, is one of the evils of litigation which cannot be avoided. If, however, there is any proof of laches or misconduct on the part of the receiver vis a vis the Defendant, the court may protect the latter first by giving back his property to him and direct the receiver to realise his dues from the Plaintiff if he can. 33. The fourth contingency may arise in a case like the case of Kin Foo v. Whee Seik Cheng ILR (1925) Ran. 196. There the Plaintiff brought a suit for dissolution of a partnership business, which was carried on outside the jurisdiction of the court, on the allegation that the partnership agreement had been made within the jurisdiction of the court. In his written statement the Defendant denied that the agreement had been made within the jurisdiction and pleaded, inter alia, that the court had no jurisdiction to entertain the suit at all. On an application by the Plaintiff for the appointment of a receiver, the Defendant took the point that, as the court had no jurisdiction to entertain the suit at all, it had no jurisdiction to appoint a receiver. The Plaintiff had made out an urgent case for the appointment of a receiver and a prima facie case of jurisdiction. But, however strong the prima, facie case might have been, the court could not be absolutely certain that the Plaintiff must succeed at the hearing. The denial of jurisdiction might have been bona fide or might have been set up falsely. The final decision of the issue might necessitate hearing oral evidence at length which, in most cases, it might not be convenient to do at that stage. What was the court to do in such circumstances? Was it to wait and adjourn the application until the issue of jurisdiction was decided at the hearing? The final decision of the issue might necessitate hearing oral evidence at length which, in most cases, it might not be convenient to do at that stage. What was the court to do in such circumstances? Was it to wait and adjourn the application until the issue of jurisdiction was decided at the hearing? The Rangoon High Court expressed the view that the question of jurisdiction was an issue in the suit and that, as the court had jurisdiction to try and determine that issue, it had seisin of the suit, and its subject matter until it gave its decision on the question of jurisdiction and that, therefore, of necessity it had jurisdiction to pass all necessary interlocutory orders, including an order for the appointment of a receiver pendente lite, to take charge of the partnership assets and upheld the order of the lower court appointing a receiver. Public policy demands that, in such a case, upon a prima facie case being made out, the court should have the power to appoint a receiver, for otherwise an unscrupulous Defendant may by raising' a false plea inflict irreparable loss on the Plaintiff. Suppose in such a suit, in spite of the plea, of jurisdiction, the court, on an interlocutory application, appoints a receiver, but, at the hearing, comes to the conclusion that the partnership agreement had not been made within jurisdiction and dismisses the suit for want of jurisdiction. How will the receivership expenses be met? I have not been referred to any decision of any Indian or English Court precisely in point. On general principle, I apprehend, the court will, in its discretion, allow the receiver to re-imburse himself out of the assets, as was done by Sale J. in Premlall Mullick's case (supra) and as the Plaintiff obtained the appointment improperly or illegally the court may visit him with the consequence of his own wrong doing and make him pay the receivership expenses as part of the costs or as compensation for loss inflicted on the Defendant as was done in Naikwara's case (supra). If public policy authorises the court to appoint a receiver, on a prima facie case being made out and in the face of a denial of title of the Plaintiff or a denial of the jurisdiction of the court, the same public policy demands that the court must have the power to compel the unsuccessful party to make suitable redress to the innocent person. As between two innocent persons, the receiver and the Defendant, the court will ordinarily, in a case of this kind, lean in favour of the receiver, unless the equities are preponderatingly in favour of the Defendant by treason of any laches or misconduct of the receiver vis-a-vis the Defendant. 34. Take a more extreme case. Suppose a statute has taken away the jurisdiction of the civil court to entertain certain suits or has prohibited the appointment of a receiver over certain properties, yet the court, overlooking the statute, appoints a receiver on an interlocutory application in a suit where all parties interested in the estate are before the court. Subsequently, on its attention being drawn to the statute, the court dismisses the suit or vacates the order for the appointment of the receiver. The suit was properly constituted so far as parties were concerned, but obviously the appointment was improper or illegal, having regard to the statute. There was a complete lack of jurisdiction ab initio to entertain the suit or to appoint a receiver, as the case may be, by reason of the statute. How is the receiver to recoup himself for the costs, charges and expenses incurred by him under orders of court? The estate may have benefitted by such expenses or it may not have done so. The Defendant did not desire the benefit. Why, then, should he or his estate be made liable to pay for such benefit thrust on him or why should he be left to seek his redress against the Plaintiff, who may be a man of straw? On the other hand, should the receiver, be left to look for his indemnity to the Plaintiff, who procured the improper or illegal appointment, although it is known that he is a man of straw? No decision on this point has been brought to my notice. On the other hand, should the receiver, be left to look for his indemnity to the Plaintiff, who procured the improper or illegal appointment, although it is known that he is a man of straw? No decision on this point has been brought to my notice. Perhaps, having regard to the total absence of jurisdiction ab initio, the court will, in such a case, ordinarily hold in favour of the Defendant, unless the latter contributed, by laches or otherwise, in bringing about the situation, in which case, I apprehend, the court must have a discretion in the matter and, if the equities are preponderatingly in favour of the receiver, the court may allow him to reimburse himself out of the estate. 35. I have so far discussed cases where the suits were properly constituted as to parties. In such cases, the necessary parties being before the court, there can be no difficulty in adjusting the equities between the parties and the receiver. Now, let me take the case of a suit in which persons interested in the property are not before the court. Suppose A files a suit against B, claiming a property which really belongs neither to A nor B, but belongs to C, who is not a party to the suit. Suppose the court, upon a bolstered up case of urgency or by consent of parties, appoints a receiver. Suppose then C takes proceedings pro interesse suo or otherwise and succeeds in establishing his title and the receiver is discharged. Can the court make any order in the suit in which C is not a party or even in C's proceedings that the receivership expenses should be paid out of C's property? The receivership may or may not have benefitted the property, but why should C have his property diminished by a receivership, which he did not desire? Ordinarily, I do not see on what principle the stranger to the suit can be made to suffer, unless he has been guilty of gross laches or has otherwise misled the court and the receiver. As between C and the receiver, unless there is any special equity in favour of the receiver and against C. I should be disposed to reinstate C into his full rights and give the receiver a right of indemnity against the parties to the suit personally who have no equity in their favour. As between C and the receiver, unless there is any special equity in favour of the receiver and against C. I should be disposed to reinstate C into his full rights and give the receiver a right of indemnity against the parties to the suit personally who have no equity in their favour. If the parties to the suit are men of straw, then, I am afraid, the receiver must go without relief. The hardship on the receiver is no ground for inflicting an equal or greater hardship on an innocent third party. 36. Take another case, which may be of more frequent occurrence. Suppose A files a suit against B for recovery of property in which C and D, who are not impleaded as parties, are also interested. The question arises: does the want of parties cause or bring about such want of jurisdiction as disentitles the court from making any appointment of a receiver at all? In Kerr on Receivers (10th Ed.), p. 8, I find the law enunciated as follows: Objections on the ground of misjoinder, multifariousness, or want of parties, were never an answer on the application for a receiver if a case for the appointment of a receiver was shown and if the objection is a formal one, and such as may be removed by amendment, the court will not stay its hand. The evidence should show that all parties with an interest in the property are before the court; but if a sufficient case is made out the appointment will be made in the absence of some of the persons interested. 37. The above proposition is founded on the observations of Turner L.J. in Evans v. Coventry (1854) 5 De G.M. and G. 911 : 43 L.R. 1125. A prima facie case of breach of trust having been established, the appeal Court reversed the decision of Kindersley V.C. and appointed a receiver, although want of parties and multifariousness had been set up in opposition to the application. In Hamp v. Robinson (1865) 3 De G.J. and S. 97 and 46 E.R. 574 the Defendants demurred to the bill for want of equity, multifariousness and want of parties. The Lord Justices overruled the demurer on first two points but upheld the demurer for want of parties and gave liberty to the Plaintiff to amend. In Hamp v. Robinson (1865) 3 De G.J. and S. 97 and 46 E.R. 574 the Defendants demurred to the bill for want of equity, multifariousness and want of parties. The Lord Justices overruled the demurer on first two points but upheld the demurer for want of parties and gave liberty to the Plaintiff to amend. Turner L.J. threw out a suggestion relying on the case of Const v. Harries Turn and Rule 496 (514) : 37 E.R. 1191 (1198), that the allowance of the demurer for want of parties would not necessarily prevent the Plaintiff from applying to the court for an injunction or for a receiver. In In re Johnson. Steele v. Cobham (1886) L.R. 1 Ch. App. 325, after an order had been made on summons for the administration of the real and personal estate of a testatrix, the sole executor and the trustee Defendant became bankrupt. It was held by Knight Bruce and Turner L. JJ., reversing the decision of the Master of the Rolls, that a receiver ought to be appointed and that the fact of the assignees, not being before the court was not a sufficient reason for refusing to appoint one. In this case, a receiver was appointed, although the assignees of the bankrupt had not been brought on the record and although the suit could not be effectually prosecuted without their being brought before the court. In all these cases, the appointment of a receiver was made on an interlocutory application and the defect for want of parties could be rectified by a subsequent amendment by addition of parties. Suppose the receiver, appointed in one of the above English cases I have mentioned, which were defective for want of parties, incurred liabilities under orders of court before the case came on for hearing. Suppose further that, the Plaintiff, having failed or refused to join the necessary parties, the suit was dismissed at the hearing for non-joinder of necessary parties. How should the question of the receiver's indemnity be dealt with in such a case? Suppose further that, the Plaintiff, having failed or refused to join the necessary parties, the suit was dismissed at the hearing for non-joinder of necessary parties. How should the question of the receiver's indemnity be dealt with in such a case? Should the person, who was not a party to the suit and did not desire to have the benefit of a receivership, assuming it to have been beneficial, be made to suffer loss to his property by the receiver taking his remuneration, costs, charges and expenses out of it and to look for compensation to the parties who improperly procured the appointment of the receiver? Or, should the receiver be directed to surrender his lien altogether and to look for his indemnity to the parties who got him appointed? On general principles I should, in a case of this kind, be reluctant, in the absence of special equity against him, to inflict any loss on a person who is a stranger to the suit, but will content myself by giving the receiver a right of re-imbursement and lien limited to the share of the parties to the suit and also an order for payment of his balance dues, if any, against the parties personally. Suppose, a minor has a share in a property or in a business and has a guardian of his person and property appointed by a competent court. Suppose, a suit for partition of the property or for the dissolution of the business, which suit is not beneficial to the minor, is filed in the name of the minor by another person as his next friend. Suppose the fact that the minor has such a certificated guardian is not known to the Defendants and is concealed by the next friend from the court or the court otherwise overlooks the provisions of Order XXXII, Rule 4(2), Code of Civil Procedure, and appoints a receiver and subsequently passes a decree for partition or dissolution. Or, suppose a suit is filed against a minor for recovery of a property which, really belongs to him and a receiver is appointed and subsequently a decree is passed against the minor without, by oversight, any guardian-ad-litem having been appointed for him. In each of the above cases, the decree will not be binding on the minor, for he was not properly represented according to law. In each of the above cases, the decree will not be binding on the minor, for he was not properly represented according to law. Suppose, the decree is eventually set aside in appropriate proceedings. Suppose the properties are still in the hands of the receiver, who has yet to get his remuneration, costs, charges and expenses. How will the receiver's rights be dealt with in these cases? Ordinarily, there can be no equity which will entitle the receiver to get his re-imbursement out of the minor's properties. Even if there be laches on the part of those who are expected to protect the minor, the minor cannot suffer. This is another case where the dues of the receiver must be made good by those who procured his appointment. If they are men of straw then the receiver has no remedy. 38. There is singular lack of judicial decisions of English and Indian Courts bearing on the question of the right of indemnity of a receiver appointed in a suit which is incompetent by statute or is defective by reason of absence of necessary parties and none has been brought to my notice. The conclusions I have arrived at, in the different contingencies and illustrations I have discussed above, are based on what I conceive to be sound equitable principles. I am strengthened in my views, for I find that they are supported by the decisions of the American Courts, which also proceed on considerations of equity in such cases. [In High on Receiver (4th Ed.), Ch. XVIII, Article 796, at p. 932-933, the American decisions are thus summarised: But, while the receiver's compensation is usually paid out of the fund placed in his hands, a different course may be adopted when the order appointing him is evoked, and when he is directed to return the property to the persons entitled hereto. And it is proper, under such circumstances, for the court, in its discretion, to require the payment of part of the compensation out of the fund in the receiver's hands, and to tax the balance as costs against the Plaintiff, the unsuccessful party in the cause. And it is proper, under such circumstances, for the court, in its discretion, to require the payment of part of the compensation out of the fund in the receiver's hands, and to tax the balance as costs against the Plaintiff, the unsuccessful party in the cause. The court is governed, in such case, by the consideration f the injustice of allowing a receiver his compensation, in all cases, from the funds in his hands, regardless of the legality of his appointment; since, if such a rule were to be rigorously applied, innocent persons might frequently sustain great loss. 39. The observations of Miller J. in French v. Gifford (1937) 31 Iowa 428 quoted n High at p. 933 are as follows: It is insisted by Plaintiff's counsel that the compensation of the receiver should e paid out of the fund of which he had the custody and charge, and that he should e permitted to retain the same therefrom. Numerous cases have been cited to low that such is the uniform practice. Upon an examination of these cases it ill be found that, in every case, there was no question made as to the legality or propriety of the appointment of the receiver; that, in each case, the receiver closed p the business and settled his accounts in pursuance of his appointment. The receivership, in each case, was for the benefit of those interested in the fund, and he was paid therefrom, which is only another method of apportioning the costs upon lose entitled to the fund. The only case which has been brought to our attention, in which the order appointing the receiver was set aside, is the case of Ver-lanck v. mercantile Insurance Company (1928) 2 Paige 438, and in that case the chancellor ordered the receiver to turn over all the property, without allowing him any commissions there from. We think it would be an unjust and inequitable rule if, in all cases, the receiver should be entitled to his compensation from the fund in his hands, without reference to the legality of his appointment. Under the operation of such a rule moment persons might be made to suffer great loss. 40. We think it would be an unjust and inequitable rule if, in all cases, the receiver should be entitled to his compensation from the fund in his hands, without reference to the legality of his appointment. Under the operation of such a rule moment persons might be made to suffer great loss. 40. The following passages from an Article published in Harvard jaw Review as quoted in "The Law of Receivers' (Lawyers Companion Series) are also instructive: It is within the discretion of the court to appoint a receiver, to determine his Impanation, and to fix the manner in which that compensation shall be paid. he court, through its receiver, administers the estate for the benefit of those Intimately adjudged entitled to it. Receivership expenses, however, differ from ordinary costs in that the administration is supposed to be worth its cost to the true sraer; and, accordingly, the general rule is that the receivership expenses are to e taken from the fund administered. The difficult problem is to determine when le facts justify such a departure from the general rule as to relieve the owner of the expenses of an involuntary management and place the burden on the party who instituted the proceedings. It may, indeed, be impossible to charge the fund, because the possession of the receiver was never legal, as when his appointment was absolutely void because of a statute, or when the property in question belongs to one not a party to the action. In such case it is clear that the true owner can not be forced to submit to a reduction of the fund to pay the expenses of the illegal ! administration. As the receiver is equally innocent, it seems equitable to charge, the expenses to the person who caused the appointment? of the receiver. If, on the other hand, the appointment of the receiver under the circumstances was legal and proper, or, if erroneous, was acquiesced in by the Defendant, the mere fact that the Plaintiff eventually failed in his suit will not be enough to throw the expense on him. If, however, the Plaintiff was fraudulent, there can be no objection to making him stand the cost. A more difficult class of cases is where the appointment was not justified on the facts presented and was vacated on appeal. If, however, the Plaintiff was fraudulent, there can be no objection to making him stand the cost. A more difficult class of cases is where the appointment was not justified on the facts presented and was vacated on appeal. The courts have reached all possible results on the liability for the receivership expense incurred in the interim. It is submitted that the proper rule is first to protect; the receiver by giving him a lien on the fund and then to let the Defendant receive from the Plaintiff any actual loss he may have suffered as a result of the receiver ship. 41. Having discussed the general principles applicable to different cases in different circumstances, I now proceed to examine the facts of the case now before me. In 1904 the two shebaits, Nagendra and Kartik, executed a deed, whereby, after setting apart the thakurbarhi for the Deity, they divided the other debattar properties, as if they were their own. Pursuan to that deed, Nagendra and Kartik took possession of the properties allotted to them respectively. Their respective descendants adopted or acquiesced in that arrangement. It is quite plain that, in law, that deed was not binding on the (sic) as a deed of partition. The properties remained debattar an members of both branches continued to be shebaits. Although in the matter of day to day management, one branch could no by reason of such arrangement, interfere with the other an each branch could appoint a manager of its own, yet neither branch had any right to dispose of any of the properties authorised its manager to do so without the consent concurrence of the members of the other branch, for, in sue matters, all the she baits must act jointly as one body. In the suit for specific performance, the whole question was whether the title was such as could be thrust on an unwilling purchase I held it was not, because the members of the branch of Kartik not having been made parties to the suit, were free to challenge the title of the purchaser on the grounds set forth in judgment. Mr. Mr. A.N. Bose, attorney for the Defendant relying on the form of the prayers in the plaint in this suit (No. 2001 of 1937) contends that, as the suit was primarily f the subdivision of Nagendra's turn of worship and for a schema of management of the properties, which, by the deed of 1904, hi been left to the care and management of Nagendra and 1 branch, the members of Kartik's branch were not at all interest in this suit and, as such, were not necessary parties thereto, spite of the commendable skill and tenacity with which Mr. Bose argued the point, nothing that I have heard induces me change the view which I then formed and which I have expressed in my judgment delivered in that suit. Although, from the point of view of their personal interest, the sons of Kartik were not concerned with the subdivision of Nagendra's paid, yet being still she baits they were in law necessary parties to the suit, in spite of the arrangement for separate management of the debattar estate. I am also of opinion that their presence in the suit, even if it was not necessary ah initio, certainly became necessary when the decree provided for raising money on the mortgage of the debattar estate. It was for this reason mainly that I held, in that suit for specific performance, that the decree was not binding on the sons of Kartik and, consequently, on the Deity. The Deity was not properly represented in the suit at its inception, at the date of the decree or at the date of the order for sale. To all intents and purposes the Deity was not and is not, in the eye of the law, before the Court at all. Therefore, the appointment of a receiver over the Deity's property by the decree made in such an ill-constituted suit, authorising him to mortgage the Deity's properties, can never be binding on the Deity. The costs, charges and expenses incurred by the receiver so improperly appointed cannot ordinarily, on general principles of law or equity discussed above, be allowed out of the Deity's estate and, in my judgment, the order for sale was, therefore, not binding on the Deity. 42. Is there any special equity in favour of the Official Receiver which will weigh the scale in his favour? The decree provided for the raising of Rs. 42. Is there any special equity in favour of the Official Receiver which will weigh the scale in his favour? The decree provided for the raising of Rs. 1,500 from Tarubala, the wife of the Defendant Kshitindra and the repayment thereof in instalments of Rs. 50 per month. This money was required principally for meeting the costs of a suit, which had become necessary by reason of the internecine quarrels of Nagendra's sons, for which the Deity was not at all responsible. If the members of Kartik's branch had been made parties, they might have easily protected the Deity against this unwarranted loss to its estate. However, the Official Receiver was not responsible for this and I say nothing more about it and pass on with the narrative. Tarubala declined to advance any money. I do not see why, in such circumstances, the Official Receiver should have undertaken the burden of applying to Court for leave to raise any money on the mortgage of the debattar properties. Such an application was principally for the benefit of the attorneys for the parties. Only a small amount was required for repairs. The Official Receiver would certainly have done better if he had followed the usual rule and left it to the parties to move the Court, if they were so advised. However, the Official receiver took upon himself the responsibility and applied for and obtained an order for raising money on mortgage. He could not secure any person willing to advance any money. This fact should have been a warning to him, namely, that there was something wrong with the title. He, however, again applied to Court for leave to sell some of the debattar properties. Again, I say, the Official Receiver should have left it to the parties to do so. There is, in connection with this second application, one matter which cannot be ignored altogether. In this petition he also asked for leave to pay to the attorneys the costs of the previous application and also their costs subsequent to the decree without specifically and pointedly stating to the Court that the costs of the parties of the previous application had been disallowed before and that the costs subsequent to the decree had not been allowed by any previous order. This was done obviously in the interests of the attorneys. Then the order for sale was made. This was done obviously in the interests of the attorneys. Then the order for sale was made. The sale was held on July 11, 1944. Two letters were received from the pleaders of Jiban and Ajit, two of the sons of Kartik, challenging the competency of the suit and the sale. At the instance of the attorneys for the parties the sale was proceeded with. Then the purchaser's attorney rejected the title. An application was made to the Court for leave to file a suit for specific performance. Again, I say, the Official Receiver should have followed the usual rule and left it to the parties to do so, if they were so advised. Seeing, however, that the Court entertained the several applications of the Official Receiver without any objection, I would not have made any point against the Official Receiver on the ground that he incurred costs by making these applications, but I cannot overlook the fact that the petition, on which the Official Receiver sought for leave to file a suit for specific performance, was not candid and, indeed, was entirely misleading. T have since perused that petition and I find that the Court was not told that the members of the branch of Kartik had written letters objecting to the suit and the sale and intimating that they would take legal steps; not a word was said in the petition as to the grounds on which the purchaser's solicitors had rejected the title; there was no reference to the requisitions on title and the answers thereto. The Court was not apprised of the fact that one of the grounds of rejection of title was that the shebaits of the branch of Kartik were no parties to the suit or the decree or the order for sale. In my opinion, the order granting the Official Receiver leave to file a suit for specific performance was not obtained properly on a full and fair disclosure of all material facts. In these circumstances, the Official Receiver cannot, as against the Deity, who was not properly before the Court, claim any equity in respect of costs incurred by him in connection with that suit. In these circumstances, the Official Receiver cannot, as against the Deity, who was not properly before the Court, claim any equity in respect of costs incurred by him in connection with that suit. Had the Official Receiver left it to the parties to make that application, he could have, on such application being made by the parties, pointed out to the Court the serious objections to title based on non-joinder of Kartik's sons and that he had no funds with which he could meet the costs of such proposed suit and he could have asked that the parties must put him in sufficient funds to meet his own costs and costs of the purchaser in case he, the Official Receiver, lost the suit. He did not adopt the ordinary precautions of taking an express indemnity from the parties in whose interest and at whose instance he launched upon a risky litigation. Having regard to the contentions of Kartik's sons and the rejection of title on the grounds I have mentioned, the Official Receiver, in my opinion, should not have taken upon himself the responsibility of applying to Court for leave to sue for specific performance and, in any event, should not have done so without disclosing all material facts. He should, certainly, not have incurred costs of that suit on credit when he had no funds in his hands. 43. It is said that the members of the branch of Kartik have been guilty of laches in that they did not object to the appointment of the receiver. The receiver was appointed by the decree. There is nothing before me to suggest that Kartik's sons knew of the suit before the decree. I am prepared to believe that they came to know of the appointment of the receiver after the decree when, during Nagendra's turn of worship, the receiver presumably took possession of the thakurbarhi from them. At that time they do not appear to have made any protest. But, how long did they stand by? They came forward and put forth their objections at or before the date of sale. After that there can be no question of further laches. It may be that, by reason of their not taking any objection earlier, there is some equity in favour of the Official Receiver in respect of costs incurred up to the date of receipt of the lawyer's letters. After that there can be no question of further laches. It may be that, by reason of their not taking any objection earlier, there is some equity in favour of the Official Receiver in respect of costs incurred up to the date of receipt of the lawyer's letters. It will be unreasonable to hold that, after that date, they misled the Official Receiver in any way. Further, I do not think that laches, if any, on the part of the shebaits, can affect Deity's rights. 44. When the question of indemnity of a receiver appointed in a suit, in which persons interested in the property are not before the Court, arises between the stranger and the receiver, it has to be considered as to how and in what proceedings the equities can be adjusted. If the stranger, by his act or conduct, has misled the Court or the receiver so that there is equity against the stranger, then, when the stranger comes in pro interesse suo or takes other proceedings, the Court may, in the stranger's proceedings, where all necessary parties are before the Court, adjust the equities and impose the condition of payment of the receiver's charges on the stranger before the property is delivered to him. As a matter of procedure, I "do not see how the Court can make an order on the stranger in the original suit to which the stranger is not a party. I consider that it is wholly unfair, after the mischief has been done, to drag the stranger before the Court against his will by giving him a mere notice of an application made in a suit in which he is not a party and to make him retrospectively bound by the decree and orders to which he was not a party. I also consider that questions of laches and estoppel cannot properly be gone into on a summary application in the original suit, as is now being sought to be done. 45. In this application, the Official Receiver asks for leave to sell some of the dehattar properties subject to special conditions. Apart from the fact that the order acceding to this application will be just as bad as the previous order for sale for want of 'proper representation of the Deity by all its shebaits in this suit, there is another serious objection to this application. Apart from the fact that the order acceding to this application will be just as bad as the previous order for sale for want of 'proper representation of the Deity by all its shebaits in this suit, there is another serious objection to this application. this Court has held that a sale under an order of Court in this suit, as constituted, will not pass a good title to the purchaser. If there is a total lack of title, it cannot be cured by any special condition. Special conditions cannot be used as a snare to catch unwary purchasers even in a private sale and far less in a sale under order of Court. The Court cannot, where there is no title, sanction a sale under cover of special conditions in order only to palm such title off upon the purchaser. In the case of a Court sale the utmost good faith must be shown: See Halsbury, Vol. 29, Article 368, pp. 276-277; Else v. Else (1872) L.R. 13 Eq. 196, 201; Kala Meah v. Harperink ILR (1908) 36 Cal. 32 (36). 46. I am free to confess that at the earlier stages of this application, I had a feeling, as Farwell J. had in Davy v. Scarth (1906) 1 Ch. 55, that the honour of the Court was involved in seeing that its officer was protected, but on a careful consideration of the facts and circumstances of this case, I have not been able to find any equity in favour of the Official Receiver. I cannot overlook or ignore the admonitions of James L. J. in the earlier case of In re Regent's Canal Iron-works Company. Ex parte Grissell (1875) 3 Ch. D. 411, 419, that "the honour of the Court cannot be satisfied at "the expense of some body else, who is not in point of law or in "point of equity bound to satisfy it out of his means." 47. For reasons stated above, I regret that I have to refuse this application. The Official Receiver must pay the costs of the independent next friend of the Deity as between attorney and client and those of Ajit and Jiban as between party and party certified for counsel. I make no order as to the costs of the Defendants and of the Official Receiver. 48. The Official Receiver must pay the costs of the independent next friend of the Deity as between attorney and client and those of Ajit and Jiban as between party and party certified for counsel. I make no order as to the costs of the Defendants and of the Official Receiver. 48. The question, whether the Official Receiver is entitled to any indemnity against the parties to this suit other than the Deity, or how that indemnity is to be worked out does not arise on this application as framed and as to that I express no opinion. 49. As this decision will have a far reaching effect on the position and rights of the Official Receiver as receiver in this suit, I readily give him leave, if such leave is necessary, to appeal from this judgment, if he be so advised to do, subject of course to the order of the appeal Court as to costs.