ELIAX BEGUM v. ABDUL HALEEM — 1991 DIGILAW 393 (KAR)

K. B. NAVADGI, J. ( 1 ) THIS is an appeal under order 43, Rule 1 (s) of the Code of Civil Procedure ('the code' for short) and is directed against the order dated September 5, 1990, made on the three interlocutory applications, i. a. nos. 1, ii and iii in o. s. No. 1252/1986, by the learned ii additional city civil judge, city civil court, Bangalore. ( 2 ) ELIAX begam (appellant No. 1) and ruhi fareh diba (appellant No. 2) aredefendants nos. 1 (a) and 1 (b) in the trial court. They are the legal representatives of one khaleeq ahamed, implcadcd in the suit as defendant No. 1. Abdul haleem (respondent No. 1) and rafiq ahamed (respondent No. 4) arc plaintiffs nos. 1 and 3 respectively in the trial court. One hameeda begum was plaintiff No. 2. Magdoom hussain (respondent No. 2) and zakir hussain (respondent No. 3) are the legal representatives of hameeda begum. There are in all 47 defendants in the suit including defendant No. 1 khaleeq ahamcd. Defendant nos. 2 lo 47 are not impleaded in the present appeal. ( 3 ) FOR the sake of convenience, the appellants and respondents herein would hehe reinafter referred lo as the legal representatives of defendant No. 1 khaleeq ahamed, plaintiff No. 1, legal representatives of plaintiff No. 2 hameeda begum, and plaintiff No. 3 respectively. ( 4 ) O. S. No. 1252/1986 is the suit filed by plaintiff nos. 1 and 3 and hameedabegum against defendant No. 1 khaleeq ahamed and defendant nos. 2 to 47 claiming the following reliefs :"the plaintiffs pray for grant of following reliefs :- to pass a judgment and decree against first defcndanl (a) deelaring that the contract dated 27-9-1972 extended under agreement dated 10-1-1977 between plaintiffs and m. a. aleemon the one hand and defendant on the other is unenforceable by the defendant against plaintiffs on account of defendant's breach of the fundamental terms underlying the contract. Alternatively, to declare that the lease of 27-9-1972 can be terminated by plaintiffs, who can exercise their rights of forfeiture of the lease and re-entry. (h) partition and separate possession of plaintiffs 3/4th share of the plaint schedule property; by evicting the defendants from portions of the suit schedule property and to give the same to plaintiffs. Alternatively, to declare that the lease of 27-9-1972 can be terminated by plaintiffs, who can exercise their rights of forfeiture of the lease and re-entry. (h) partition and separate possession of plaintiffs 3/4th share of the plaint schedule property; by evicting the defendants from portions of the suit schedule property and to give the same to plaintiffs. (c) to direct defendants lo account for mesne profits of the plaintiffs share of the estate from the date of the notice dated 19-11-1985 and direct a separate enquiry regarding the same from the same date till delivery of possession, of plaintiffs share. (d) and such other reliefs as are appropriate in the circumstances of the present suitlo costs, interest, etc. , and direct a separate enquiry to be made in this behalf. (e) grant of permanent injunction against defendants-2 to 47 restraining them from paying rents to 1st defendant and directing them to deposit the rents in court, and also not to alienate the property and pass other appropriate orders in this behalf. " ( 5 ) THE subject-matter of the suit, as mentioned with the numbers given to themby the corporation of the city of Bangalore, and the boundaries in the schedule forming part of the plaint, is all the piece and parcel of land including buildings, structures and fillings comprised in old survey nos. 45/1-b and 45, 2-a, given new numbers by the corporation of the city of Bangalore, as site nos. 47, 47/a, 47/1, 47/1-a, 47/1-b and 47/1-c, situated al ycshwantapur, Bangalore-22, bounded on the east by bangalorc-tumkur national highway, on the west by soap factory land and road, on the north by property of one khuddus, and on the south by road. It would be referred to hereinafter as 'the estate'. ( 6 ) THE material averments in the plaint are these : the estate originally belonged to one rashida begum, wife of late mohamed sheriff. After the death of her husband, she succeeded to the estate and was the absolute owner thereof. Yeshwantapur, in which the estate is situated, is part of the metropolitan city of Bangalore, and is urbanised. The estate is a valuable one consisting of shops, buildings and godowns, earning a monthly income exceeding Rs. 15,000/- to 18,000/-, rashida begum was the sister of plaintiffs nos. 1, 3 and hamceda begum and defendant no. 1 khalceq ahamed. Yeshwantapur, in which the estate is situated, is part of the metropolitan city of Bangalore, and is urbanised. The estate is a valuable one consisting of shops, buildings and godowns, earning a monthly income exceeding Rs. 15,000/- to 18,000/-, rashida begum was the sister of plaintiffs nos. 1, 3 and hamceda begum and defendant no. 1 khalceq ahamed. She was a pardanishin lady without much education or sophistication. She was not conversant with business affairs. The estate owned by her was the largest and most valuable among the properties owned and possessed by her. In view of her inexperience in business affairs, she depended upon defendant no. 1 khaleeq ahamed for the management of her estate, reposing full confidence in him. She executed a general power of attorney in his favour to act on her behalf in the matters relating to the management of her estate. By virtue of the general power of attorney, defendant No. 1 khaleeq ahamed became virtually the estate manager of rashida begum. In about the year 1967, rashida begum had incurred a debt of Rs. 75,000/- from the syndicate bank, gandhinagar branch, Bangalore. Interest on the debt had piled up. The debt had swollen to a sum of over one lakh. It had remained undischarged. Rashida begum had borrowed the money to meet the expenses of the estate and for running a cinema theatre under the name and style of "rashida talkies" belonging to her and standing on the estate. The liability of debt was causing considerable anxiety to her. The cinema theatre was let out to one b. c. kumaravclu on a monthly rental of Rs. 1000/ -. The lessee changed the name of the theatre from "rashida talkies" to "sri gajanana talkies" and started running it in good condition. Defendant No. 1 terminated the lease of b. g. kumaravelu during the year 1976-77. The building of the cinema theatre had become old. It required renovation. Rashida begum was also keen in re-constructing the old theatre and equipping it with modern furniture, fixtures and equipment. Discharge of the debt owed to the syndicate bank, re-construction and renovation of the cinema theatre were the top priorities of rashida begum. The estate consisted of extensive vacant land with enormous potential for improvement and development in view of the phenominal growth of the metropolitan city. This called for further investment. Discharge of the debt owed to the syndicate bank, re-construction and renovation of the cinema theatre were the top priorities of rashida begum. The estate consisted of extensive vacant land with enormous potential for improvement and development in view of the phenominal growth of the metropolitan city. This called for further investment. Rashida begum, out of the income of the estate, could not provide for the payment of the debt, re-construction of the cinema theatre and the improvement and development of the vacant site of the estate. When the matters stood like this, defendant No. 1 khaleeq ahamed, taking advantage of the situation and exploiting the ignorance and inexperience of rashida begum, actuated by the ill-motive of grabbing the estate, made rashida begum to execute a document in his name on 27-9-1972 giving him substantial right in the estate on the assurance that a general power of attorney executed in his favour earlier was inadequate to manage the estate efficiently and effectively and that for repayment of the debt and for fulfillment of the plans of rashida begum, a document in the nature of the one dated 27-9-1972 was required. Rashida begum yielded to the representation of defendant No. 1 khalccq ahamed and executed a document on 27-9-1972. The representation made by defendant No. 1 khaleeq ahamed while gelling the document was that the document was required to strengthen his hands to manage the estate effectively. Rashida begum did not intend to divest herself of any substantial interest in the estate nor had she any intention to convey any substantial interest in the estate in favour of defendant No. 1 khaleeq ahamed. She was solely guided by him. Defendant No. 1 khaleeq ahamed obtained the document getting substantial right as a lessee in the estate by exercising fraud, misrepresentation and undue influence. The deed dated 27-9-1972 is vitiated by fraud, misrepresentation and undue influence. It is illegal and unen forceable as a lease deed. Rashida begum died on 9-12-1976. Her estate devolved on plaintiff No. 1, hameeda begum, plaintiff no. 3, defendant no. 1 khaleeq ahamed and one m. a. aleem. m. a. aleem was a bachelor. He died on 22-1-1984 intestate. Plaintiff nos. 1, 3, hameeda begum and defendant No. 1 khaleeq ahamed were the only surviving heirs of rashida begum. Each of them is entitled to l/4th share in the estate. Thus, plaintiff nos. 3, defendant no. 1 khaleeq ahamed and one m. a. aleem. m. a. aleem was a bachelor. He died on 22-1-1984 intestate. Plaintiff nos. 1, 3, hameeda begum and defendant No. 1 khaleeq ahamed were the only surviving heirs of rashida begum. Each of them is entitled to l/4th share in the estate. Thus, plaintiff nos. 1,3 and hameeda begum together would be entitled to 3/4th share in the estate. On the death of m. a. aleem, his l/5th share in the estate devolved on them and defendant No. 1 khaleeq ahamed as his heirs. After the death of rashida begum, plaintiff nos. 1, 3 and hameeda begum claimed their share in the estate. M. a. aleem intervened and settled the matter. Under the settlement dated 10-1-1977, defendant No. 1 khaleeq ahamcd agreed to carry out the conditions laid down in the document dated 27-9-1972, to render accounts of the income from the estate. He was allowed to continue as manager of the estate. He also agreed to pay each of the other heirs a sum of Rs. 500/- per month during the period of his management of the estate. But the subsequent events turned out that defendant No. 1 khaleeq ahamed started neglecting the management of the estate and committing acts of waste. Defendant No. 1 khaleeq ahamed terminated the lease of the cinema theatre in favour of b. c. kumaravelu. A sum of Rs. 2000/- the cinema threatre was earning as rent was lost. The cinema threatre was in good condition upto 1976-77. After the termination of the lease, defendant No. 1 khaleeq ahamed did not make any arrangements to run the cinema ihreatrc. As a result of neglect displayed by him, the cinema threatre building went into ruins. The machinary, the equipments, furniture, fittings, roof materials, tiles, iron and wooden trussers were sold away by him without the knowledge of the other heirs and their consent. He applied the sale proceeds for himself. He did not re-construct the cinema threalre as per the plan approved by the corporation of the city of Bangalore on 26-4-1978. The debts accumulated and the interest piled up. income-lax, corporation tax and wealth tax due from the estate fell in arrears. The amount due towards corporation tax was in a sum of Rs. 71,205/ -. The amount payable to the syndicate bank towards the debt had swollen to 6,06,00/ -. The debts accumulated and the interest piled up. income-lax, corporation tax and wealth tax due from the estate fell in arrears. The amount due towards corporation tax was in a sum of Rs. 71,205/ -. The amount payable to the syndicate bank towards the debt had swollen to 6,06,00/ -. The amount, defendant No. 1 khalccq ahamcd had agreed to pay under the agreement dated 10-1-1977 was not paid. Plaintiff nos. 1, 3 and hameeda begum had to file a suit in o. s, No. 596/1985 against defendant No. 1 khalceq ahamed for recovery of the debt. In view of the failure on the part of defendant No. 1 khaleeq ahamed to perform the fundamental obligations of contract under the documents dated 27-9-1972 and 10-1-1977, a legal notice was issued to him making a detailed reference to the facts of the matter and calling upon him to effect the partition of the estate and give the plaintiffs their due shares. Defendant No. 1 khalceq ahamed gave a reply disowning the liability to perform the obligations arising out of the two documents dated 27-9-1972 and 10-1-1977 and denying the right of the plaintiffs to claim shares in the estate. With the said averments, plaintiff nos. 1, 3 and hameeda begum have filed the suit claiming the reliefs extracted in paragraph 1 of the judgment. ( 7 ) DEFENDANT No. 1 khaleeq ahamed appeared and filed his written statement contesting the suit. Among other things, he contended that the suit was bad for misjoinder and non-joinder of necessary parties and mis-joinder of causes of action and that the suit was hit by the Provisions contained in order 2, Rule 2 of the code. He also contended that the suit was a subterfuge to make him round for settlement in respect of "white house" bearing No. 12/1, situated on Dr. Omcr shariff road. According to him, rasheeda begum to the knowledge of plaintiff nos. He also contended that the suit was a subterfuge to make him round for settlement in respect of "white house" bearing No. 12/1, situated on Dr. Omcr shariff road. According to him, rasheeda begum to the knowledge of plaintiff nos. 1, 3 and hameeda begum and deceased m. a. aleem, made a gift of survey No. 47 part of the estate including rasheeda building, godown, factory shed, hotels, petrol bunk, weigh-bridge and other buildings with vacant land; that that part of the estate which was the subject-matter of gift could not have been the subject-matter of lease evidenced by the document dated 27-9-1972; that that part of the estate gifted in his favor has been treated as his personal property; and thai, therefore, plaintiff nos. 1, 3 and hameeda begum cannot claim any share in the said part taking advantage of the mistake that was crept in, in the lease deed in describing the property leased including the gifted part of the estate. ( 8 ) DEFENDANT No. 1 khalecq ahamed contended that the suit in the form inwhich it was instituted was not maintainable, since it did not include the other properties owned by rasheeda begum situated in new bamboo bazaar, civil station, Bangalore. He denied the fraud, mis-representation and undue influence alleged against him in obtaining the lease deed dated 27-9-1972. With regard to the document dated 10-1-1977 he maintained that it was of no effect and plaintiff nos. 1, 3 and hameeda begum and deceased abdul aleem did not get any right under the document. (9 ) WHILE defendant nos. 2 to 7,9,11,12,14 to 42,44 and 46 adopted the writ ienstatement filed by defendant No. 1 khaleeq ahamed, defendant No. 47 filed a separate written statement. ( 10 ) PLAINTIFF nos. 1, 3 and hameeda begum filed three interlocutory application snumbered by the trial court as i. a. nos. 1, ii and iii. I. a. No. I was an application under order 39, rules 1 and 2 of the code restraining defendant nos. 2 to 47 from paying rents of the premises in their occupation as tenants to defendant No. 1 khaleeq ahamed with a direction to deposit the same in the court during the pendency of the suit. The other prayer made in i. a. No. I was to restrain defendant nos, 2 to 47 from alienating the premises in their possession. 2 to 47 from paying rents of the premises in their occupation as tenants to defendant No. 1 khaleeq ahamed with a direction to deposit the same in the court during the pendency of the suit. The other prayer made in i. a. No. I was to restrain defendant nos, 2 to 47 from alienating the premises in their possession. Plaintiff No. 1 filed affidavit in support of the prayer. Defendant No. 1 khaleeq ahamed and defendant nos. 3 and 43 filed their objections. I. a. No. Ii was an application filed under the order 26, Rule 9 of the code for the appointment of a commissioner to make local investigation of the estate and report regarding the condition of the cinema theatre building, the rents that were being paid by the tenants and occupants and other relevant matters arising in the suit. Plaintiff no. 1 filed affidavit supporting the prayer made in i. a. No. Ii. Defendant no, 1 khaleeq ahamed filed objections to it. ( 11 ) I. A. No. Iii was an application filed by plaintiff nos. 1, 3 and hameedabegum under order 40, Rule 1 read with Section 151 of the code for the appointment of a receiver for the management of the estate till the disposal of the suit. ( 12 ) PLAINTIFF nos. 1,3 and hameeda begum produced the original deed dated 27-9-1972,the letters and notices exchanged between them and defendant No. 1 khaleeq ahamed and also some photographs of the building of the cinema theatre to show its condition. ( 13 ) THE learned trial judge took up la. No. Hi for consideration, taking theview, the right view, in my opinion, that if i. a. No. Iii were to be allowed, there would be no necessity to consider i. a. nos. I and ii. After making a reference to the undisputed facts, the contents of the document dated 27-9-1972 and lo the principles enunciated in t. Krishnachetty v c. Thangavelu chetty and others, AIR 1955 Madras, 430; in kamal chaudhary and another, appellants v rajendra chaudhary and others, respondents, AIR 1976 Patna 366; and in asiamma and others v mohammed and others, 1967 (2) mys. Lj. 586, he held that plaintiff nos. Lj. 586, he held that plaintiff nos. 1 and 3 and hameeda begum had shown optima facie case in their favour; that they had succeeded in showing danger and loss to the estate calling for immediate action and that they had shown that they were excluded from possession and enjoyment of their shares in the income and profits of the estate. He held that there was failure on the part of defendant No. 1 khaleeq ahamed in performing the obligations undertaken by him under the document dated 27-9-1972 and the plea of want of real consent on the part of rasheeda begum to the lease deed dated 27-9-1972 stood probabitised by the tenor and contents of the document itself. As regards the document dated 10-1-1976, he held that the document had been acted upon and the contention of defendant no, 1 khaleeq ahamed with regard to the non-en forceability of the said document was not convincing. Placing reliance on the decision of this court in krishnamurthy v puttappajiah, ILR 1987 kar. 3867, he held that the lease in favour of defendant No. 1 khaleeq ahamed had stood determined by the merger of the leasehold estate of defendant No. 1 kheleeq ahamed in the larger estate acquired by him in the estate along with plaintiff nos. 1, 3 and hameeda begum and m. a. alecm on the death of rasheeda bagum. As regards the plea of gift, making a reference to the absence of such a plea either in the deed dated 27-9-1972, in the deed dated 10-1-1977 or in reply to the notice, he held that the plea of gift was a false plea devised by defendant No. 1 khaleeq ahamed to appropriate large part of the estate to himself. ( 14 ) ON consideration of the material, the learned trial judge held that the plaintiffshad prima fade shown acts of waste and mismanagement by defendant No. 1 khaleeq ahamed and that the appointment of a receiver as prayed for by plaintiff nos. 1,3 and hameeda begum was just and convenient. ( 15 ) IN that view of the matter, he allowed la. No. Iii and dismissed i. a. nos. Iand ii with a direction to plaintiff nos. 1 and 3 and the legal representatives of hameeda begum and of defendant No. 1 khaleeq ahamed lo suggest the name of a competent person for being appointed as a receiver. ( 15 ) IN that view of the matter, he allowed la. No. Iii and dismissed i. a. nos. Iand ii with a direction to plaintiff nos. 1 and 3 and the legal representatives of hameeda begum and of defendant No. 1 khaleeq ahamed lo suggest the name of a competent person for being appointed as a receiver. He closed the proceedings in respect of la. Nos. I and iii. ( 16 ) THE legal representatives of defendant No. 1 khaleeq ahamed have challengedthe said order in this appeal. ( 17 ) I have heard Sri ashok benadikar appearing for Sri ravi b. Naik, the learned counsel for the legal representatives of defendant No. 1 khaleeq ahamed and Sri mirle l. Krishna murthy, the learned counsel for plaintiff nos. 1 and 3 and the legal representatives of hameeda begum. I have perused the record in the appeal and the record of the suit. ( 18 ) TWO questions arise for consideration and determination in the appeal. They are these : (1) whether the conclusion of the learned trial judge that the appointment of a receiver to manage the estate during the pendency of the suit, is just and convenient, is based on facts and circumstances brought on record? (2) whether the discretion has been exercised by the learned trial judge in accordance with the principles on which the judicial discretion is cxercised? ( 19 ) ORDER 40, Rule 1 of the code, which deals with the power of the court to appoint a receiver is subject to the controlling provision of Section 94. It reads as under:"1. Appointment of receivers. (1) where it appears to the court to be just and convenient, the court may by order (a) appoint a receiver of any property, whether before or after decree; (b) remove any person from the possession or custody of the property; (c) commit the same to the possession, custody or management of the receiver; and (d) confer upon the receiver all such powers, as to bringing and defending suits and for the realisation, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of these powers as the court thinks fit. (2) nothing in this Rule shall authorise the court to remove from the possession or custody of property any person whom any party to the suit has not a present right so to remove. " ( 20 ) IT is by now well settled that the power conferred on the court under order 40, Rule 1 of the code has to be exercised for preventing the ends of Justice from being defeated. The object and purpose of the appointment of a receiver, is, generally stated, for the preservation of the subject-matter of the litigation pending a judicial determination of the rights of the parties thereto. The underlying principle under order 40, Rule 1 of the code relating lo the appointment of a receiver is that the subject - matter of the suit should be allowed lo remain in tact, so that at the end of the final determination or adjudication, the parties might be entitled to the benefits thereof. ( 21 ) THE court can appoint a receiver if it is just and convenient not only on the application of a party to the suit but also of one who is not a party lo the suit but interested in the preservation of the property. The courf can do so even suo motit. The words "just and convenient" appearing in Rule 1 of order 40 of the code have been taken from sub-section (8) of Section 25 of the judicature Act, 1873. The words in that act are "just or convenient", but they have been construed to mean "just and convenient". The words "just and convenient" do not mean that the court can exercise the power to appoint a receiver simply because it thinks it convenient. They mean that the court should exercise the power for the protection of the rights or for the prevention of injury according to legal principles. ( 22 ) THE first requirement, perhaps the most essential requirement, for the plaintiff to secure acceptance of the court for his prayer for the appointment of a receiver is that he should show prima facie that he has a strong case and a good title to the property. The undisputed facts appearing in the record would show that rasheeda begum was the absolute owner of the estate; that on her death on 9-12-1976, plaintiff nos. The undisputed facts appearing in the record would show that rasheeda begum was the absolute owner of the estate; that on her death on 9-12-1976, plaintiff nos. 1, 3, defendant No. 1 khaleeq ahamed and one m. a. aleem, her brothers, and hameeda begum, her sister, succeeded to the estate, each being entitled to l/5th share in it; that m. a. aleem one of the heirs, died intestate; that his share devolved upon plaintiff nos. 1, 3, hameeda begum and defendant No. 1 khaleeq ahamed; and that thus, as on the date of the suit, plaintiff nos. 1, 3 and hameeda begum, being legal heirs of rashecda begum along with defendant No. 1 khaleeq ahamed, were each entitled to l/4th share. It was the contention of defendant No. 1 khaleeq ahamed that during the year 1964 rashceda begum had gifted part of the estate comprising in survey No. 47/1; that ever since the gift, the gifted property was being treated as his personal property and that plaintiff nos. 1, 3 and hameeda begum cannot claim any right, title or interest in that part of the estate gifted to him, taking advantage of the inclusion of the said part of the estate in the lease deed dated 27-9-1972, the learned trial judge, adverting to this plea of defendant No. 1 khaleeq ahamed in the proper perspective, has rightly held that the plea cannot the accepted as true even primu facie. ( 23 ) IF rasheeda begum had gifted part of the estate, as contended by defendant No. 1 khaleeq ahamed, in the year 1964, in the normal course that part of the estate would not have been mentioned in the lease deed dated 27-9-1972, a document that was brought about by defendant No. I khaleeq ahamed himself on the representation that such a document was required for the effective management of the estate, as contended by plaintiff nos. 1, 3 and hameeda begum. There was a notice dated 19-11-1985 issued by plaintiff nos. 1, 3 and hameeda bugum before the institution of the suit. In the said notice, they claimed partition and separate possession of their share in the estate. Defendant No. 1 khaleeq ahamed gave reply to the said notice on 4-12-1985 disowning his obligations under the document dated 27-9-1972 and denying the shares claimed by plaintiff nos. 1,3 and hameeda begum in their notice. In the said notice, they claimed partition and separate possession of their share in the estate. Defendant No. 1 khaleeq ahamed gave reply to the said notice on 4-12-1985 disowning his obligations under the document dated 27-9-1972 and denying the shares claimed by plaintiff nos. 1,3 and hameeda begum in their notice. Significantly, defendant No. 1 khaleeq ahamed did not mention in the said reply that a part of the estate had been gifted to him by rasheeda begum in 1964. He did not claim any title to that part of the estate on the basis of the alleged gift. If there was any truth in the plea of gift, the fact being uppermost in the mind of defendant No. 1 khaleeq ahamed, he would not have failed to make a mention of the same. The fact that the plea of gift bears traces of an after-thought and displays an evil eye on a part of the estate by defendant No. 1 khaleeq ahamed to the disadvantage of plaintiff nos. 1, 3 and hameeda begum is also clear from the fact that defendant No. 1 khaleeq ahamed whispered about the same for the first time in his written statement. If part of the estate was the subject-matter of the gift, it could not have been the subject-matter of lease evidenced by the document dated 27-9-1972. Even in the document dated 10-1-1977 executed by defendant No. 1 khaleeq ahamed, significantly, there is no mention of the gift. The learned trial judge, referring to the relevant material on record, has rightly concluded that the theory of gift is a make believe one taken by defendant No. 1 khalceq ahamed after much water had flown under the bridge. The material on record indicates that the locality in which the estate owned by rashceda begum is situated is a part of the metropolitan city of Bangalore and is urbanised. It is a valuable one consisting of shops, buildings and godowns earning a monthly income exceeding Rs. 15,000/- to Rs. 18,000/ -. Rashecda begum had full confidence in defendant No. 1 khaleeq ahamed. According to the averments in the plaint, rasheeda begum was a pardanishin lady without much education and sophistication. She was not conversant wilh business affaiis. It is a valuable one consisting of shops, buildings and godowns earning a monthly income exceeding Rs. 15,000/- to Rs. 18,000/ -. Rashecda begum had full confidence in defendant No. 1 khaleeq ahamed. According to the averments in the plaint, rasheeda begum was a pardanishin lady without much education and sophistication. She was not conversant wilh business affaiis. The averments in the plaint stand probabilised by the fact that rasheeda begum had executed a general power of attorney in favour of defendant No. 1 khaleeq ahamed to act on her behalf in the matters relating to the management of her estate. ( 24 ) IT is in the material that rasheeda begum had obtained a loan of Rs. 75. 000/- from the syndicate bank, gandhinagar branch, Bangalore; that the interest on the loan had piled up; that the loan had swollen to a sum of over rupees one lakh and had remained undischarged; that rasheeda begum had obtained the loan to meet the expenses of the estate and for running the cinema theatre run under her name and the liability of the debt was causing considerable anxiety to her. The cinema theatre had been let out to one b. c. kumaravelu on a monthly rental of Rs. 1,000/ -. He was running it in good condition after changing the name of the theatre from rasheeda talkies to Sri gajanana talkies. Defendant No. 1 khaleeq ahamed by virtue of the power given to him under the deed dated 27-9-1972, had terminated the lease during the year 1976-77. The cinema theatre building having become old required renovation. Rasheeda begum was also keen in re-constructing the old cinema theatre and equipping it with modern furniture, fixtures and equipment. ( 25 ) THUS, discharge of the loan and re-construction and renovation of the cinema theatre were her top priorities. She also wanted to improve and develop the vacant part of the estate in view of the growth of the metropolitan city demanding further investment. She had no money to implement her plans and to discharge the debt. According to plaintiff nos. 1, 3 and hameeda begum, when the matters stood like this, defendant No. 1 khaleeq ahamed actuated and motivated by obtaining substantial interest in the estate, made rasheeda begum to execute the document in his name on 27-9-1972 leasing out the estate for a rent Rs. According to plaintiff nos. 1, 3 and hameeda begum, when the matters stood like this, defendant No. 1 khaleeq ahamed actuated and motivated by obtaining substantial interest in the estate, made rasheeda begum to execute the document in his name on 27-9-1972 leasing out the estate for a rent Rs. 500/- per month representing that a document was required to repay the loan and fulfill the plans of rasheeda begum and for the effective and efficient management of the estate. According further to them, rasheeda begum yielded to the representation and executed the document dated 27-9-1972 and that the document under which she gave substantial lease hold right in the estate in favour of defendant No. 1 khaleeq ahamed, was vitiated by fraud, mis representation and undue influence and was, therefore, unenforceable in law. ( 26 ) THE learned trial judge, referring to the contents of the document dated 27-9-1972, has held that the allegations made by plaintiff nos. 1, 3 and hameeda begum stand probabilised. On re-examining the view taken by the learned trial judge, in the light of the material on record, i find the view perfectly sound, deserving affirmance. A reading of the document dated 27-9-1972 would show that the estate was leased in favour of defendant No. 1 khaleeq ahamed for a rent of rs, 500/-per month. The terms of the lease would indicate that defendant No. 1 khaleeq ahamed was to make payments out of the rent earned by him towards the wealth- tax, income-tax, corporation tax and such other charges that the government may demand; and that he was to pay all the debts outstanding from and out of the rents received by him from the tenants in occupation of the demised premises and to discharge the outstanding debts as early as possible. Under the terms, defendant no. 1 khaleeq ahamed was to improve the cinema theatre by renovating and re-constructing it as per the plan sanctioned by the appropriate authorities. The document specifically states that defendant No. I khaleeq ahamed would become liable for ejection from the estate on his failure to perform the obligations, conditions and covenants set out in the document and that on the determination of the lease period, he was to deliver to rasheeda begum all piece and parcel of the leased land with the existing buildings and the buildings to be constructed thereon. Under the deed, rasheeda bagum had reserved the right to re-enter the estate on defendant No. 1 khaleeq ahamed committing breach of any of the conditions, obligations and covenants mentioned therein. It appears, therefore, clear from the reading of the document that the assertion of plaintiff nos. 1,3 and hameeda begum that defendant No. 1 khaleeq ahamed persuaded rasheeda begum to execute the document in his favour for the effective management of the property and not with an intention to create relationship of landlord and tenant between her and defendant no. 1 khaleeq ahamed is probable and true. That such was the intention of rasheeda begum while executing the deed is also clear from the document dated 10-1-1977 executed by defendant No. 1 khaleeq ahamed. With regard to the said document, all that defendant No. 1 khaleeq ahamed contended was that it was void, illegal and unenforceable. He did not dispute the execution of the document. A reading of the document dated 10-1-1977 would show that plaintiff nos. 1,3 and hameeda begum and m. a. aleem agreed that defendant No. 1 khaleeq ahamed should continue to manage the estate paying a sum of Rs. 500/- to each of the other heirs of rasheeda begum every month and should discharge the outstanding debts. If the document dated 27-9-1972 was a lease deed, after the death of rasheeda begum when her other heirs, namely, plaintiff nos. 1, 3, hameeda begum and m. a. aleem demanded partition and separate possession of their shares in the estate as heirs, defendant No. 1 khaleeq ahamed would not have agreed to execute the document incorporating the terms referred to above in it. It appears clear from the record that this document was acted upon. The suit filed by plaintiff nos. 1, 3 and hameeda begum against defendant No. 1 khaleeq ahamed in o. s. No. 596/1985 which is said to be still pending, is for the recovery of the amount agreed to be paid to each of them by defendant No. 1 khaleeq ahamed on his failure to pay the same. The record indicates that after the document, defendant No. 1 khaleeq ahamed in discharge of the obligation undertaken by him had paid to the other heirs of rasheeda begum, namely, plaintiff nos. 1,3 and hameeda begum and m. a. aleem, a sum of Rs. 500/- per month each. The record indicates that after the document, defendant No. 1 khaleeq ahamed in discharge of the obligation undertaken by him had paid to the other heirs of rasheeda begum, namely, plaintiff nos. 1,3 and hameeda begum and m. a. aleem, a sum of Rs. 500/- per month each. In view of the aforesaid facts, it can be said without any hesitation that plaintiff nos. 1, 3 and hameeda begum have shown a prima facie strong title to the major and substantial part of the estate. It can also be said that they have shown prima facie that they have excellent chance of obtaining the reliefs claimed in the suit and succeeding in the suit. If the order appointing the receiver as prayed for by plaintiff nos. 1,3 and hameeda begum, which is for the preservation of the subject-matter of the litigation pending judicial determination of the rights asserted by them in the estate, is not maintained and affirmed, the ends of Justice would be defeated. On the other hand, if the order appointing the receiver made by the learned trial judge is maintained and affirmed, it would prevent the ends of Justice from being defeated and would help the preservation of the subjectmatter, namely, the estate, pending adjudication of the rights of plaintiff nos. 1,3 and hameeda begum and defendant No. 1 khaleeq ahamed. ( 27 ) IN my view, plaintiff nos. 1,3 and hameeda begum have also shown not only conflicting claims made by defendant No. 1 khaleeq ahamed, but also have shown waste and mis-management of the estate by him and the estate being in danger of being lost demanding immediate action. The rights claimed by plaintiff nos. 1,3 and hameeda begum in the estate are reasonably clear and free from doubt. The material on record prima facie shows that being not satisfied with the general power of attorney executed by rasheeda begum in his favour to manage her estate, defendant No. 1 khaleeq ahamed, representing that a document of the kind dated 27-9-1972 was required for the effective and efficient management of the estate, for discharging the out standing debts and for fulfillment of the plans of rasheeda begum in the matter of re-construction and renovation of the cinema theatre and the improvement of the vacant part of the estate, obtained the document. As held by the learned trial judge, the contents of the document them selves provide intrinsic evidence probabilising the allegations of plaintiff nos, 1, 3 and hameeda begum that the document dated 27-9-1972 is the result of fraud, undue influence and misrepresentation practised, exercised and made by defendant No. 1 khaleeq ahamed. Defendant No. 1 khaleeq ahamed terminated the lease of b. c. kumaravelu during the year 1976-77. The rental earned by the estate was lost. He did not renovate the cinema theatre. Nor did he reconstruct it in accordance with the plans approved by the authorities concerned. He did not run the cinema theatre after 1976-77. He made it to he idle. According to plaintiff nos. 1,3 and hameeda begum, the building has gone into ruins; that the machinery, equipments, furniture and roof materials were sold by defendant No. 1 khaleeq ahamed and the sale proceeds were appropriated to himself. The learned trial judge, observing the photographs produced for his inspection, has observed that the cinema theatre building is in a dilapidated condition. Defendant No. 1 khaleeq ahamed did not state as to what happened to the machineries, equipment, furniture and other materials in the cinema theatre. He had a duty to account for the same. Allowing the cinema theatre to lie idle without exhibiting films would undoubtedly constitute mis-management of part of the estate. The condition of the cinema theatre building revealed by the photographs would show that after 1976-77, defendant No. 1 khaleeq ahamed did not pay attention for its repairs to keep it in good condition. The profit the cinema theatre was earning was lost to the estate by its mis-management by defendant No. 1 khaleeq ahamed. He never attempted to explain the lapses on his part in managing the cinema theatre properly. The material prima facie shows that defendant No. 1 khaleeq ahamed did not discharge the outstanding debts. He placed no material before the trial court as to whether he had cleared the taxes due from the estate of rasheeda begum and the property taxes due in respect of the estate. He did not pay Rs. 500/- to each of the other heirs as undertaken by him under the document dated 10-1-1977. He placed no material before the trial court as to whether he had cleared the taxes due from the estate of rasheeda begum and the property taxes due in respect of the estate. He did not pay Rs. 500/- to each of the other heirs as undertaken by him under the document dated 10-1-1977. ( 28 ) THE learned trial judge, making a reference to the material and relevant facts appearing in the record, has rightly held that there was a total failure on the part of defendant No. 1 khaleeq ahamed to discharge the obligations, covenants and conditions undertaken by him under the lease deed dated 27-9-1972 and under the deed dated 10-1-1977. Instead of discharging the obligations and covenants faithfully, he unjustifiably turned down the demand made by plaintiff nos. 1,3 and hameeda begum and ma. Alcem for partition and separate possession of their l/5th share. With a view lo make them not lo demand their shares, it appears, defendant No. 1 khaleeq ahamed executed the document dated 10-1-1977 without any intention of carrying out its terms. That that is so clear from the assertions made by plaintiff nos. 1,3 and hameeda begum and the fact that they had to file a suit for the recovery of the amount agreed to be paid to them by defendant No. 1 khaleeq ahamed under the document dated 10-1-1977. When he received the notice, he had the audacity of disowning the obligations under the two documents and denying the rights of plaintiff nos. 1,3 and hameeda begum in the estate. The material clearly shows that defendant No. 1 khaleeq ahamed was guilty of lapses and laches in performing the obligations undertaken by him under the two documents; that he was guilty of mis-management of the estate and that the estate under his management is in the danger of being lost to plaintiff nos. 1,3 and hameeda begum and himself. Indeed, it is true, defendant No. 1 khaleeq ahamed was in possession of the estate to the exclusion of plaintiff nos. 1,3 and hameeda begum. The order appointing the receiver has the effect of depriving him and after his death, his legal representatives of de facto possession, but on the facts and in the circumstances, it appears clear to me that the deprivation of de facto possession of the estate of defendant no. 1,3 and hameeda begum. The order appointing the receiver has the effect of depriving him and after his death, his legal representatives of de facto possession, but on the facts and in the circumstances, it appears clear to me that the deprivation of de facto possession of the estate of defendant no. 1 khaleeq ahamcd and after his death, of his legal representatives would nol cause any irreparable loss or injury. The conduct of plaintiff nos. 1, 3 and hamceda begum, the applicants of i. a. No. Ill, is free from blame. Having made efforts unsuccessfully to persuade defendant No. 1 khaleeq ahamed to partition and give separate possession of their shares in the estate and having found defendant No. 1 khaleeq ahamcd failed and unwilling to perform and discharge his obligations under the two documents, plaintiff nos. 1, 3 and hameeda begum, perhaps left with no other alternative, filed the suit and sought the appointment of a receiver. ( 29 ) THE learned trial judge has held that plaintiff nos. 1,3 and hameeda begum, being the co-owners of the estate along with defendant No. 1 khaleeq ahamed, have been excluded from possession and enjoyment of the estate and that the said fact along with other facts would warrant the grant of their request for the appointment of a receiver. ( 30 ) INDEED, it is true, if a prima facie case is made out in a partition suit where one co-owner occupies the whole of the property and excludes the other co-owners from the shares of rents and profits of the properly, a case for the appointment of a receiver can be said to have been made out clearly although the co-owncr/s seeking the appointment of a receiver docs/do not allege waste or mis-management by the other co-owncr/s. The appointment of a receiver in a partition suit where some of the parties arc in sole possession to the exclusion of others would be a normal practice. The learned trial judge, placing reliance on the decision of this court in krishnamurthy v puttappajiah, ILR 1987 kar. 3867, has held that consequent on the death of rasheed begum, the lease in favour of defendant No. I khaleeq ahamed stood determined in view of the merger of his lease-hold estate in the reversion acquired by him along with plaintiff nos. 1, 3 and hameeda begum and m. a. ateem. 3867, has held that consequent on the death of rasheed begum, the lease in favour of defendant No. I khaleeq ahamed stood determined in view of the merger of his lease-hold estate in the reversion acquired by him along with plaintiff nos. 1, 3 and hameeda begum and m. a. ateem. On a careful examination of the position, 1 find it difficult to agree with him. Of course, this opinion is for the prupose of the present appeal. ( 31 ) UNDER Section lll (d) of the Transfer Of Property Act, a lease of immoveable property determines in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right. ( 32 ) THE merger is an act of law. For a merger to take place, it is necessary that a lesser estate and higher estate should merge in one person at one and and the same time and in the same right. For a merger no interest in the property should remain outside. When a leasehold and a reversion coincide, there would be a merger of lesser estate in the greater. The leasehold estate is a lessscr estate, because it is carved out of the estate of the owner whieh is the reversion. When the lesser estate is merged, drowned or sunk in the greater, the lease would stand determined and would merge in the reversion. ( 33 ) INDEED, it is true, if the lessor purchases the lessee's interest, the lease would stand extinguished as the same man cannot be at the same time both a landlord and alesssor. But there would be no extinction of the lease of one of the several lessees purchases only a part of the lessor's interest. ( 34 ) IN the instant case, on the death of rashceda begum, the reversion descended on plaintiff nos. 1,3, hameeda begum, m. a. aleem and defendant No. 1 khaleeq ahamed, each taking a share in the estate. It cannot, therefore, be said that on the death of rasheed begum, her interest and the interest of defendant No. 1 khaleeq ahamed in the whole of the estate became vested in defendant No. 1 khaleeq ahamed at the same time and in the same right. For the operation of a merger, two requirements are necessary. It cannot, therefore, be said that on the death of rasheed begum, her interest and the interest of defendant No. 1 khaleeq ahamed in the whole of the estate became vested in defendant No. 1 khaleeq ahamed at the same time and in the same right. For the operation of a merger, two requirements are necessary. The first requirement is that the interest of the lessor and the lessee must be in the whole of the property and should vest at the same time in one person in the dame right. The union must be of the entire interest of the lessor and of the lessee. The second requirement is that the two estates must be held in the same right, a term which is taken in atieno jure jure would not be merged in a reversion acquired suojure. Tn the instant case, in my considered view, both the requirements are not satisfied. In this view of the matter, i find difficult to agree with the view taken by the learned trial judge that there was merger of the lease-hold estate, defendant No. 1 khaleeq ahamed had had in the estate in the reversion acquired by him after the death of rasheed begum. In the decision in krishnamurthy v puttappajiah, ILR 1987 kar. 3867, the lessee had become the mortgagee in possession. On the facts, this court held that on the lessee becoming mortgagee in possession, his interest as lessee merges in the superior interest of the possessory mortgagee; that in the absence of a contract to the contrary, there would be an implied surrender of the lease-hold right and that consequently the relationship of landlord and tenant would come to an end as soon as the relationship of usufructuary mortgagor and usufructuary mortgagee comes into existence. The principles stated in the decision have no application to the facts in the present case. Even without the merger, in my view, the plaintiffs have made out a case for the appointment of a receiver. ( 35 ) THE order appointing a receiver is discretionary. It is a matter resting in the sound discretion of the court. It is by now well settled that the order appointing a receiver which is discretionary must be exercised in accordance with the principles on which the judicial discretion is exercised. ( 35 ) THE order appointing a receiver is discretionary. It is a matter resting in the sound discretion of the court. It is by now well settled that the order appointing a receiver which is discretionary must be exercised in accordance with the principles on which the judicial discretion is exercised. In the case on hand, in my considered view, the learned trial judge, on a careful examination of the facts of the case, applying the right principles to them, has exercised the discretion judicially. The order appointing the receiver is supported by sound reasoning and is based on the proper approach to the facts. It is a well reasoned order deserving affirmance. The opinion of the court of first instance in the matter of appointment of receiver is of great weight. It is probably the best court to decide whether it is necessary or expedient having regard to the circumstances of the case that a receiver should be appointed. In the case on hand, the opinion formed by the learned trial judge, based as it is on proper and correct grasp of the facts and sound approach to the facts in the proper prospective, is entitled to great weight. The learned trial judge, taking into consideration the circumstances of the case, has held that it would be just and convenient to appoint a receiver. The learned counsel for the legal representatives of defendant No. 1 khaleeq ahamed had not been able to show any fact or circumstance in the order which can be said to constitute either error or infirmity justifying interference with it in this appeal. When they have failed to show that the order made in the exercise of discretion has been made improperly or wrongly, I am not inclined to interfere with the order. The legal representatives of defendant No. 1 khaleeq ahamed have failed to show that the discretion has been exercised improperly or unreasonably. ( 36 ) I find the appeal absolutely merilless and devoid of substance. It has to fait and it is, therefore, dismissed with costs of plaintiff nds. 1, 3 and the legal representatives of hameeda begum. --- *** --- .