Sitabai v. Sureshchandra — 1991 DIGILAW 466 (MP)

ORDER R.K. Verma, J. -- 1. This is an appeal filed by the plaintiffs against the order dated 22.2.R9 passed by the Additional Judge to the Court of District Judge, Indore, Mhow in Civil Misc. Case No. 4/86 whereby the application of the plaintiffs under Order 40, Rule 1 and 2 CPC read with section 151 CPC for appointment of receiver in respect of the suit property has been rejected. 2. The facts giving rise to this appeal, briefly stated, arc as follows: The plaintiff No.1 Sitabai widow of Bhagirath and the other plaintiffs who arc trustees of Sitahai Bhagirath Trust allegedly created by Sitabai, have filed the instant suit in forma pauparis for possession of the agricultural lands in suit on the basis of title and for mesne profit and in the alternative for partition of lands and separate possession and mesne profits against her adopted son Sureshchandra defendant No.1 and R others. The case of the plaintiffs is that the suit lands arc ancestral property of Dulichand and Bhagirath who were brothers. The plaintiff No.1 Sitabai is the wodow of Bhagirath who predeceased his elder brother Dulichand sometime in 1930. Dulichand died on March 13th, 1958. Sometime before Dulichand's death, Sitabai adopted the defendant No.1 Sureshchandra as a son to her late husband. Sureshchandra took part in the management of the property for a year or two and thereafter returned to live with his natural father. The plaintiff Sitabai has been in cultivating possession of the suit lands for the last 20 years. But the defendant No.1 and other defendants started attempts to dispossess the plaintiff No.1 in the year 1980. The plaintiff No.1 claims to have created a Charitable Trust in respect of the suit properties on 14.10.80. 3. It appears that the dispute as to possession over the suit lands between the parties led to proceedings under section 145 Cr. P.C. and the Criminal Case No. 177/81 was filed before the S.D.M. Mhow, who took cognizance of the matter on 22.6.Rl and passed an order under section 146 (1) Cr. P.C. appointing the Tahsildar Mhow as a receiver. 4. The instant suit was filed on 31.1.R6, in forma pauparis. The plaintiffs filed the application under Order 40, Rules 1 and 2 CPC for appointment of the receiver on 31.1.86. The defendants filed reply and opposed the application. P.C. appointing the Tahsildar Mhow as a receiver. 4. The instant suit was filed on 31.1.R6, in forma pauparis. The plaintiffs filed the application under Order 40, Rules 1 and 2 CPC for appointment of the receiver on 31.1.86. The defendants filed reply and opposed the application. The learned lower Court after hearing the parties has by the impugned order rejected the application for appointment of receiver. Being aggrieved by the order rejecting the application for appointment or receiver, the plaintiffs have filed this appeal. . 5. The learned counsel for the appellants-plaintiffs has submitted that the learned lower Court should have accepted the plaintiffs' allegation that the defendants arc mismanaging and wasting the property in suit. It has also been submitted that even though the defendant No. 1 Sureshchandra has conceded that the plaintiff No.1 was entitled to half share in the suit property, she has been dispossessed from the entire property and has not even been paid any sum for her maintenance. 6. Learned counsel for the respondent-defendant No.1 Suresh Chandra has, on the other hand submitted that the defendant No.1 was entitled to the entire suit property which had vested in him as sole surviving co-parcener after the death of Dulichand and that the admission of defendant No. 1 conceding half share of the plaintiff No. 1, was under a misapprehension of law and that the title once vested in defendant No.1 can pass only by methods known to law and not by admission wrongly made by him. It has, however, been conceded on behalf of the respondent-defendant No.1 Sureshchandra that plaintiff No.1 is entitled to maintenance, being the mother of the defendant No.1, from the suit property which is admittedly joint family property. Learned counsel for the respondent No. 1 Sureshchandra has offered to pay maintenance at such rate as may be determined within the range of Rs. 500/- to Rs. 1000/- per month from the date of the instant suit. According to the respondents the plaintiff No.1 has been dispossessed of the suit lands from June, 1981. 7. Learned counsel for the respondent No. 1 Sureshchandra has offered to pay maintenance at such rate as may be determined within the range of Rs. 500/- to Rs. 1000/- per month from the date of the instant suit. According to the respondents the plaintiff No.1 has been dispossessed of the suit lands from June, 1981. 7. The learned counsel for the appellant-plaintiffs has contended that the appellant-plaintiff Sitabai has been jointly in possession with Dulichand at the time of death of Dulichand in the year 1958 when the defendant No.1 Sureshchadra was already adopted as a son by Sitabai to her late husband Bhagirath, who had died in or about 1930 and that she became full owner of the property in her possession by virtue of section 14 of the Hindu Succession Act, 1956 and as such, there is a case for appointment of a receiver in respect of the suit-property, for proper management so that the property yields adequate income and there is proper maintenance of accounts. Learned counsel has also suggested that even the respondent No.1 himself could be appointed as receiver for proper accountability as to management and income of the extensive agricultural lands in suit which is said to be yielding presently only nominal income as per the version of defendant No.1. 8. A decision of the Supreme Court in Bai Vijia (dead) By Lrs. v. Thakorbhai Chelabhai and others: ( AIR 1979 S.C. 993 ) has been cited by the learned counsel to say that the widow's right to maintenance, is a pre-existing right and that the plaintiff Sitabai being in joint possession of the joint family property in 1956 became full owner by virtue of section 14 of the Hindu Succession Act (30 of 1956). 9. the aforesaid contention of the learned counsel pre-supposes a proposition that the widow Sitabai had acquired limited ownership on account of being entitled to right to maintenance and being in joint possession with her husband's brother Dulichand who died in 1958. But the case of Bai Vijia (Supra) is not an authority for such a proposition, being canvassed by the learned counsel. According to the said authority a plain reading of sub-section (1) of section 14 of the Hindu Succession Act makes it clear that the concerned Hindu female must have limited ownership in property which limited ownership would get enlarged by the operation of that sub-section. According to the said authority a plain reading of sub-section (1) of section 14 of the Hindu Succession Act makes it clear that the concerned Hindu female must have limited ownership in property which limited ownership would get enlarged by the operation of that sub-section. Limited ownership in the concerned Hindu female is thus, a sign qua non for the applicability of sub-section (1) of section 14 of the Act. 10. The Hindu Women's rights to Property Act, 1937 provided for devolution of interest of a Hindu in a Hindu Joint Family property upon his death on his widow and such an interest devolving on the Hindu widow was only the limited interest known as Hindu women's Estate. Any property possessed by female Hindu as a limited owner was to be held by her as full owner thereof by virtue of section 14(1) of the Hindu Succession Act, 1956. 11. However, at this initial juncture when the suit is yet to he tried, it is not necessary for me to examine in depth the question as to how the alleged joint possession in 1956 of Sitabai who became widow in 1930 and was entitled to maintenance from the joint family property on the date of coming into force of the Hindu Succession Act, 1956 would suffice for the applicability of section 14 (1) of the Act. The main question at present is to examine whether in the circumstances obtaining in the present case there is need to appoint as receiver to protect the interest of the plaintiff. There can he no doubt that even if the plaintiffs were not to succeed in the suit for partition she would at least he entitled to maintenance as admitted by the defendant No.1. 12. There can he no doubt that even if the plaintiffs were not to succeed in the suit for partition she would at least he entitled to maintenance as admitted by the defendant No.1. 12. Order 40, Rule 1 CPC provides that where it appears to the Court to he just and convenient, the Court may by order appoint a receiver of any property, whether before or after decree; remove any person from possession or custody of the property; commit the same to the possession, custody or management of the receiver; and confer upon the receiver all such power as to bringing and defending suits and for the realisation, management, protection, preservation and improvement of the property, the collection of rents and profits there of, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers as the Court deems fit. 13. At this initial stage of the suit when it is not possible to hold that the plaintiff is exclusive owner or co-owner of the property in suit or is entitled to either exclusive possession or partition of the suit property and particularly when the respondent-defendant No. 1 has conceded that the plaintiff is entitled to maintenance and has offered to pay the arrears of maintenance from the date of the suit and has even conceded to make payment of maintenance amount from June, 19X 1 since when the plaintiff has been excluded from the possession of the suit property, I think that it would he just and proper to make an order for payment of arrears of maintenance and future monthly payments during the pendency of the suit instead of making any order for appointment of receiver presently. 14. The defendant No.1 has offered to pay maintenance at such rate as this Court may deem fit between Rs. 500/- to Rs. 1000/- per month. Having regard to the status of the family and the fact that defendant No.1 is the adopted son of the appellant- plaintiff Sitabai and the fact that the joint family property comprises of extensive agricultural lands, I consider it just and proper to order and accordingly order that the defendant No.1, shall pay maintenance to the plaintiff Sitabai @ Rs. 1000/- per month w.e.f. 1st July, 1981 and shall continue to pay hereafter monthly maintenance amount of Rs. 1000/- per month w.e.f. 1st July, 1981 and shall continue to pay hereafter monthly maintenance amount of Rs. 1000/- by 15th of each month during the pendency of the suit. 15. The arrears of maintenance from 1st July, 1981 till 30th September, 1991 @ Rs. 1000/- per month amounts to Rs. 41,000/- each. It is directed that the first-instalment shall he paid within one month from today, the second instalment shall he paid by December, 1991 and the third instalment shall he paid by June-end, 1992. The future monthly instalments shall he paid by 15th of each month and the first of such instalments shall he paid on or before 15th November, 1901. The amounts of arrears of maintenance as well as future monthly maintenance amount of Rs. 1000/- shall he deposited timely in the lower Court for payment to the plaintiff. 16. With the direction aforesaid, this appeal is disposed of with no order as to cost, which shall he borne by the parties as incurred.