Sat Pal ( 1 ) THIS is an application filed on behalf of the plaintiff underorder 40 Rule I read with Order 39 Rules 1 and 2 and Section 151 of the Code of Civilprocedure for appointment of a Receiver with regard to the property bearinghouse No. 224, Jor Bagh, New Delhi. ( 2 ) BRIEFLY stated the facts of the case are that the property bearing house No. 224, Jor Bagh, New Delhi (in short the suit property) was owned by Shri G. L. Bhandari who died on 18/12/1958. Shri G. L. Bhandari left behind his wifesmt. Shakuntala Bhandari, mother Smt. Kulwanti, two daughters (who are plaintiffs 1 and 2 in this suit), three sons, namely, Shri Daljit Kumar Bhandari (defendantno. 1 herein), Shri Ranjit Kumar Bhandari (defendant No. 2 herein) and Shri Dalipkumar Bhandari. Smt. Kulwanti died on 18. 12. 65 and Shri Dalip Kumar Bhandaridied on 29. 4. 1978. Defendant No. 3, namely, Shri Shailendra Bhandari is the sonand defendant No. 4, namely, Smt. Gayatri Lamba is the daughter of late Shri Dalipkumar Bhandari. ( 3 ) THE case of the defendants is that after the death of Shri G. L. Bhandari, Smt. Shakuntala Bhandari filed a suit No. 68/59 seeking declaration that she was theowner of the suit property. It is alleged by the defendant No. 1 that the plaintiffswere also impleaded as defendants in the said suit and after no objection was filedby the plaintiffs, the defendants 1 and 2 and late Shri Dalip Kumar Bhandari who isthe father of the defendants 3 and 4, the suit was decreed in favour of Smt. Shakuntala Bhandari. Pursuant to the said decree, the suit property was mutatedby the Land and Development Officer, New Delhi in favour of Smt. Shakuntalabhandari. ( 4 ) IN terms of alleged lease agreement dated 15/12/1988, the suitproperty was let out by Smt. Shakuntala Bhandari through her attorney Shri Sarvjitbhandari (defendant No. 5) to Dr. Hans Jurgen Axer initially for a period of threeyears and renewable for a further period of two years. It was further stated in thelease deed that the rent would be increased by 12% for the 4th and 5th Calanderyear respectively. Hans Jurgen Axer initially for a period of threeyears and renewable for a further period of two years. It was further stated in thelease deed that the rent would be increased by 12% for the 4th and 5th Calanderyear respectively. It was also mentioned in the lease deed that the lessee had anoption to renew the lease after a period of 5 years subject to an increase of rent ofat least 15% of last paid rent in all for an additional period of two years. Though theperiod of 5 years lapsed on 31/12/1993, the suit property is still with thelessee, namely. Dr. Hans Jurgen Axer and in terms of the lease deed, he cancontinue as a lessee upto 31/12/1995. ( 5 ) MR. Banerjee, learned Counsel appearing on behalf of defendant No. 1submitted that Smt. Shakuntala Bhandari was the absolute owner of the suitproperty and she had executed a Will on 7/08/1974 and in terms of the Willdefendants 1 to 4 were the benefeciaries with regard to the suit property andplaintiffs had no right, title and interest in the succession of the estate of Late Smt. Shakuntala Bhandari. He further submitted that in terms of the said Will defendantno. 1 had been named the executor and he had already applied for the grant of theprobate in the case bearing Probate Petition No. 55/1991. He, therefore, contendedthat the present application filed on behalf of the plaintiffs who had no right in thesuit property was not maintainable. ( 6 ) LEARNED Counsel for defendant No. 1 further submitted that the desire ofthe testator must be honoured and unless there was an application for removal ofthe executor in the Probate proceedings, he could not be removed. He, therefore,contended that the defendant No. 1 was the executor and since no application hadbeen filed for his removal in the probate proceedings, he could not be removed. Insupport of his contention, learned Counsel placed reliance on a judgment of the Calcutta High Court in the case of Bali Ram Dote v. Bhupendra Nath Banerjee andors. , AIR 1978 Calcutta 559 and a judgement of Andhra Pradesh High Court in thecase of Sri Raja Kakarlapudi Venkata Sudarsana Sundara Narasayyamma Guru (died), v. Andhra Bank Ltd. , Vijayawada b Ors. , AIR 1960 AP 273 . ( 7 ) LEARNED Counsel further submitted that a Receiver should be appointedonly if the plaintiff had a prima facie good case. , AIR 1960 AP 273 . ( 7 ) LEARNED Counsel further submitted that a Receiver should be appointedonly if the plaintiff had a prima facie good case. He submitted that since in thepresent case, the plaintiffs had not a prima facie very good chance of succeeding inthe suit, a Receiver should not be appointed with regard to the suit property. Hefurther submitted that in any case the suit property at present was in possession ofthe lessee and as such there was no justification to appoint a receiver. In support ofthis contention, learned Counsel placed reliance on two judgments of this Court inthe cases of Rajeshwar Nath Gupta v. Administrator General, 35 (1988)Delhi Law Times 88 and Prem Sagar Kumra v. Panna Lal, 1976 Rajdhani Lawreporter (note) 122 and a judgement of Bombay High Court in the case ofchandrashekhar Sidramappa Chinchansure v. Bhaurao Sidarmappa Chinchansureand Ors. , AIR 1983 Bombay 475. ( 8 ) MR. Chetan Sharma, learned Counsel appearing on behalf of defendant No. 5 reiterated the submissions made by the learned Counsel for the defendant No. 1. He also drew my attention to the orders dated 20/12/1991 in terms ofwhich the parties to the suit were restrained from alienating, transferring orencumbering or letting out the whole or any portion of the property in the suitwithout prior permission of the Court and the parties were also directed tomaintain regular accounts of the income derived from the suit properties. Hecontended that in terms of the said order passed by this Court, the defendant No. 5 had been maintaining regular accounts of the income derived from the suitproperty and he had already filed an affidavit on 16/09/1993 wherein thedetails of the income derived from the suit property and the amount of expenditureincurred thereon had been given. He further submitted that the defendant No. 5had already handed over the balance amount to the defendant No. 1 who was theexecutor in terms of the Will executed by Smt. Shakuntala Bhandari. Learnedcounsel also submitted that in case of immovable property which was regularlyfetching rent, there was no wastage or discipation and the present case being of thisnature, there was no need of appointment of a receiver. Learnedcounsel also submitted that in case of immovable property which was regularlyfetching rent, there was no wastage or discipation and the present case being of thisnature, there was no need of appointment of a receiver. In support of his contentions, learned Counsel placed reliance on ajudgment of Madras High Court in thecase of T. Krishnaswamy Chetty v. C. Thangavelu Chetty, AIR 1955 Madras430 and a judgment of this Court in the case of Rajeshwar Nath Gupta (supra ). ( 9 ) MS. Mahajan, learned Counsel appearing on behalf of the plaintiffs submitted that late Shri G. L. Bhandari had left the suit property without any Will and assuch the plaintiffs being daughters of late Shri G. L. Bhandari were entitled to theirshare in the suit property. She further submitted that the decree in S. No. 68/59 wasobtained by fraud. She, therefore, contended that a decree obtained by fraud couldbe challenged at any stage as it was nullity. In support of this contention, learnedcounsel placed reliance on two judgments of the Supreme Court in the cases of S. C. Ferozi Lal Jain v. Man Mal, 1970, RCR 375 Bahadur Singh v. Muni Subratdass and another 1969 (2) SCR 432. ( 10 ) LEARNED Counsel also submitted that the defendants could not be permitted to use an unprobated Will. In this connection, she drew my attention to Section213 of the Succession Act and submitted that the aforesaid Section created a bar tothe establishment of any right under Will by an executor or a legatee unless probateor letters of administration of the Will had been obtained. She submitted that sincethe probate of the alleged Will of Smt. Shakuntala Bhandari had not been obtainedby the defendants so far, the defendants could not claim any right under the saidwill. In support of this contention, learned Counsel placed reliance on ajudgmentof the Supreme Court in the case of Mrs. Heni Nolini Judah (since deceased) andafter her LR Mrs. Marlean Wilkinson v. Mrs. Isolyne Sarojbashini Bose, AIR 1962 SC 1471 and a judgement of this Court in the case of Chiranjilal Shrilalgoenka (deceased) v. Jasjit Singh, 1993 (27) DRJ 103. In support of this contention, learned Counsel placed reliance on ajudgmentof the Supreme Court in the case of Mrs. Heni Nolini Judah (since deceased) andafter her LR Mrs. Marlean Wilkinson v. Mrs. Isolyne Sarojbashini Bose, AIR 1962 SC 1471 and a judgement of this Court in the case of Chiranjilal Shrilalgoenka (deceased) v. Jasjit Singh, 1993 (27) DRJ 103. ( 11 ) LEARNED Counsel for the plaintiffs also submitted that the defendant No. 1 who claimed himself to be the executor of the alleged Will of Smt. Shakuntalabhandari, lived abroad for most of the period and as such he was not in a positionto manage the suit property. She also drew my attention to the affidavits ofdefendant No. 5 filed on 27/07/1993 and 16/09/1993 and submittedthat these affidavits clearly showed that the said defendant had failed to submitproper explanation of the amount alleged to have been incurred with regard to thesuit property against the rent received by him. She further submitted that defendant No. 5 had failed to even produce the copies of the receipts for the amountallegedly deposited by him with the Income Tax Department on account of incometax and Wealth Tax payable in respect of the suit property. She further submittedthat the defendant No. 1 had not even filed any document to show that he had takenany step to ensure as to whether the said amount of Income-tax and Wealth-tax wasactually deposited by the defendant No. 5 with the Income Tax Deptt. She,therefore, contended that in the present case it was in the interest of justice that areceiver be appointed to preserve the suit property. ( 12 ) MR. Danial Latifi, learned Senior Counsel appearing on behalf of defendants 2,3 and 4 submitted that the suit property was a valuable property and couldfetch substantial amount in case it was placed under the charge of a Receiver. Healso submitted that the share of the defendants 2, 3 and 4 together was much morethan the share of defendant No. l and as such the suit property could not be allowedto remain under the charge of the defendant No. 1 particularly when defendant No. 2,3 and 4 were not satisfied with the manner in which the said property was beingpreserved by the defendant No. 1. It may be pointed out here that defendant No. 2 has also filed an affidavit on 3/01/1994 and in this affidavit it has beenstated that defendant No. 1 was admittedly a NRI and was hardly present in Delhias was evident from his various affidavits. It has further been stated in this affidavitthat in these circumstances a receiver must be appointed to remove the tenants andto take possession of the suit property which had to be sold. ( 13 ) I have given my thoughtful consideration to the submissions made bylearned Counsel for the parties and have perused the records. Admittedly theprobate has not been obtained by the defendants so far with regard to the Will oflate Smt. Shakuntala Bhandari. In view of Section 213 of the Succession Act and thelaw laid down by the Supreme Court in the case of Hem Nolinijudah (supra) noright as an executor can be established in any Court unless probate or letter of administration have been obtained of the Will under which the right is claimed. Theright of defendant No. 1 who is the executor in respect of the Will of late Smt. Shakuntala Bhandari, therefore, cannot be accepted as exclusive right to preserve the suit property. ( 14 ) THE Madras High Court in the case of T. Krishnaswamy Chetty (supra)laid down five principles which have to be kept in mind while appointing receivers. The aforesaid principles were followed by a learned Single Judge of this Court inthe case of Rajeshwar Nath Gupta (supra ). One of these principles is that the Courtshould not appoint a Receiver except upon proof by the plaintiff that prima faciehe has very excellant chance of succeeding in the suit. It is true that in the presentcase it cannot be said at this stage that the plaintiffs had prima facie very excellentchance of succeeding in the suit as the plaintiffs had allegedly given no objection insuit No. 68/59 and thereafter the said suit was decreed in favourof Smt. Shakuntalabhandari and it was declared that Smt. Shakuntala Bhandari was the owner of thesuit property. Whether the said decree was obtained by Smt. Shakuntala Bhandariby fraud is yet to be proved in this case. Whether the said decree was obtained by Smt. Shakuntala Bhandariby fraud is yet to be proved in this case. ( 15 ) HOWEVER, another principle to be kept in mind while appointing thereceiver is that where the property is shown to be in medio , that is to say, in theenjoyment of no one, as the Court can hardly do wrong in taking possession, it willthen be thecommon interest of all the parties that the Court should prevent ascramble as no one seeks to be in actual lawful enjoyment of the property and noharm can bedone to anyone by taking it and preserving it for the benefit of thelegitimate who may prove successful. Admittedly in the present case the propertyis in possession of the lessee, namely, Dr. Jurgen Axer who by his letter dated 30thnovember, 1993 had already exercised his option to renew and extend the leaseagreement with an increase of rent and hire charges of 15% fora period of two yearsw. e. f. 1. 1. 94. From the affidavit of the defendant No. 1 filed on 15. 9. 93, it is also clearthat the defendant No. 1 was aborad fora period of 7 months and 15 days in 1993and again he was not in India from 1/01/1994 to 2 9/01/1994. Furtherthe defendant No. 5 alongwith his affidavit filed on 16/09/1993 hasannexed a statement of income and expenditure of the Estate of late Smt. Shakuntala Bhandari upto 29/03/1993 and in this statement certain payments areshown to have been made to Income Tax Deptt, but the learned Counsel fordefendant No. 5 has failed to produce the receipts regarding those payments. Evendefendant No. 1 has also not brought on record any document to show that he hadapproached the defendant No. 5 for production of those receipts. Besides, thedefendants 2,3 and 4 who are beneficiaries in terms of the alleged Will executed bylate Smt. Shakuntala Bhandari are also opposed for the preservation of the suitproperty by defendant No. 1 alone. ( 16 ) HAVING regard to the aforesaid facts, I am of the view that it will be in theinterest of justice that one of the plaintiffs and defendant No. 1are appointed jointreceivers of the suit property. Accordingly, I appoint Smt. Usha Subramaniam (plaintiff No. 1) and Cdr. Daljit Kumar Bhandari (defendant No. 1) as jointreceivers of the suit property. ( 16 ) HAVING regard to the aforesaid facts, I am of the view that it will be in theinterest of justice that one of the plaintiffs and defendant No. 1are appointed jointreceivers of the suit property. Accordingly, I appoint Smt. Usha Subramaniam (plaintiff No. 1) and Cdr. Daljit Kumar Bhandari (defendant No. 1) as jointreceivers of the suit property. The receivers are directed to open a new jointaccount in a Nationalised Bank and deposit the amount of rent to be recoveredfrom the lessee in that Account. They are also directed to maintain regular accounts of the income derived from the suit property and the amount which will be paid tothe Income Tax Deptt. and Municipal Corporation of Delhi as taxes against the suitproperty and any other amount to be incurred for repairs of the said property. Thebank Account will be operated jointly by the said two receivers. With this orderapplication stands disposed of. The parties are, however, left to bear their own costs.