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2003 DIGILAW 12 (AP)

Nalam Saraswathi v. Madeti Satya Rao

2003-01-03

P.S.NARAYANA

body2003
( 1 ) THIS Civil Miscellaneous Appeal is filed by the appellants-petitioners-plaintiffs as against the order dated 15-2-2002 passed by the learned Additional District Judge, vizianagaram in I. A. No. 1266 of 2001 in o. S. No. 13 of 2000. ( 2 ) THE petitioners filed O. S. No. 13 of 2000 on the file of the Additional District Judge, vizianagaram for the relief of partition of family properties on the ground that all the plaint schedule properties are the self- acquired properties of their father. The first respondent-first defendant is the brother and the second respondent-second defendant is the sister of the petitioners-appellants- plaintiffs and all the parties are the children of one Sanyasayya. It is stated that their mother predeceased their father and the first respondent in collusion with the second respondent have been misappropriating the income from the family properties for the last three years and the first respondent has not been giving any produce to the petitioners in spite of repeated demands. It is also stated that the first respondent has been collecting coconut crop from the coconut garden four times in an year and the total worth of the crop will be about one lakh rupees every year and apart from this, the annual yield on the wet and dry crops will be at about rs. 12,000/ -. ( 3 ) THE first respondent had filed a counter in detail opposing the application. It was specifically stated that the plaint schedule itself is not correct and the coconut thopu of an extent of Ac. 2-40 cents belongs to his wife and further an extent of Ac. 1-60 cents of dry land also belongs to her. It was also stated that the coconut thopu, which is in possession of the first respondent, is aged about 16 or 17 years and hence there is no proper yield and after deduction of expenses the first respondent may be getting to Rs. 10,000/- to es. 15,000/- per year and because of lack of rains there is no proper income also in the recent years. It was also stated that even from the lands since he is unable to raise any crops due to lack of rains, he has not got any income. 10,000/- to es. 15,000/- per year and because of lack of rains there is no proper income also in the recent years. It was also stated that even from the lands since he is unable to raise any crops due to lack of rains, he has not got any income. ( 4 ) THE learned Additional District judge, Vizianagaram, taking into consideration all the facts and circumstances of the case, had arrived at a conclusion that appointment of a Receiver in a matter of this nature may not be proper and the first respondent was directed to deposit an amount of Rs. 5,000/- every year on or before 31st March pending disposal of the suit and with the said direction the application for appointment of Receiver was disposed of. Aggrieved by the same, the appellants- petitioners-plaintiffs had preferred the present civil miscellaneous appeal. ( 5 ) THE matter came up for hearing at the stage of vacate application and with the consent of both the counsel the main civil miscellaneous appeal itself is taken up for final disposal. ( 6 ) SRI D. Ramalingaswamy, learned counsel representing the appellants- petitioners-plaintiffs had made the following submissions: The learned counsel had submitted that though there is clear material proving that the major portion of the plaint schedule properties, at any rate are only self- acquired properties of Sanyasayya. The court below had totally erred in observing that this aspect cannot be decided at the interlocutory stage and this approach is totally unsustainable. The learned counsel had drawn my attention to Exs. A-1 to A-4, the certified copies of sale deeds standing in the name of Sanyasayya. Ex. A-5 certified copy of the village account No. 3, Ex. A-6 certified copy of correlation statement, E. A-7certified copy of settlement register extract. The learned counsel submitted that Ex. B-3 is only a Xerox copy of original sale deed in favour of Smt. Madeti Lakshmi executed by the first defendant and hence it is inadmissible. Exs. Ex. A-5 certified copy of the village account No. 3, Ex. A-6 certified copy of correlation statement, E. A-7certified copy of settlement register extract. The learned counsel submitted that Ex. B-3 is only a Xerox copy of original sale deed in favour of Smt. Madeti Lakshmi executed by the first defendant and hence it is inadmissible. Exs. B-1 and B-2 also will not throw much light on the question in controversy, the learned counsel further submitted that in view of the facts and circumstances of the case, especially in the light of the specific stand taken by the appellants relating to the income, either a receiver could have been appointed or the properties could have been auctioned or at least a direction could have been given to the first respondent to deposit reasonable amount and at any rate the direction to deposit an amount of Rs. 5,000/- every year is totally unreasonable. The learned counsel also had taken me through the provisions of order 40 Rule 1 of Civil Procedure Code and the principles relating to the appointment of receivers in the case of partition suits. ( 7 ) PER contra Sri Nagesh the learned counsel representing the first respondent in the appeal had submitted that the learned additional District Judge, Vizianagaram had taken into consideration all the aspects involved in the matter and had issued just and equitable direction to deposit an amount of Rs. 5,000/- every year on or before 31st march pending disposal of the suit and the same need not be disturbed inasmuch as due weight has to be given to the views expressed by the learned Judge in this regard. The learned counsel also had taken me through paras 5 and 6 of the order and had contended that the order made by the learned Additional district Judge is well considered order and hence the same need not be interfered with. The learned counsel also submitted that no doubt certain sale deeds are produced to show that the properties are the self-acquired properties of the deceased Sanyasayya. The learned counsel also submitted that no doubt certain sale deeds are produced to show that the properties are the self-acquired properties of the deceased Sanyasayya. But however, while deciding the application for appointment of Receiver prima facie case has to be made out and since the sale deeds do not cover the total extent or all the properties of the family shown in the plaint schedule the question whether these are all self- acquired properties of Sanyasayya or they partake the character of ancestral property is a question which may have to be decided at the stage of trial in the light of the specific denial made by the first respondent in this regard. The learned counsel further submitted that in this view of the matter, the finding of the learned Additional District judge, Vizianagaram to the effect that this question may have to be decided at the appropriate stage but not at the interlocutory stage cannot be found fault at all. The learned counsel also submitted that the very fact that after a long lapse of time the sisters of the first respondent herein had approached the court by initiating the partition action will definitely speak that the action is not bona fide one. The learned counsel also had drawn my attention to the relevant portions of the counter where the first respondent had taken specific stand relating to the nature of the land and also the income derived therefrom. ( 8 ) HEARD both the counsel and also perused the material available on record. ( 9 ) SEVERAL of the facts are not in dispute. The appellants and the second respondent are the sisters and the first respondent is their brother and they are all children of one sanyasayya who is no more and whose wife predeceased him (Sanyasayya ). The relationship thus is not in dispute. Even as per the averments made it is clear that the appellants are not in actual possession of the plaint schedule properties and no doubt an allegation is made that they are not being paid due share of income. The relationship thus is not in dispute. Even as per the averments made it is clear that the appellants are not in actual possession of the plaint schedule properties and no doubt an allegation is made that they are not being paid due share of income. The suit is filed for the relief of partition of the plaint schedule properties into five equal shares and the stand taken by the appellants-plaintiffs is that they are entitled to three shares out of five shares in all the plaint schedule properties since these are all self acquired properties of their father Sanyasayya. A specific stand was taken by the first respondent to the effect that the plaint schedule properties are not the self-acquired properties of their deceased father. No doubt on this aspect serious contentions had been advanced especially placing strong reliance on exs. A-1 to A-7 in general and A-1 to A-4 in particular. It is no doubt true that Exs. A-1 to a-4 are the certified copies of the sale deeds standing in the name of Sanyasayya as can be seen from the schedule of these documents and also the properties specified in the plaint schedule. Therefore, there cannot be any controversy that certain other properties are also available to the family and hence in the light of the facts and circumstances of the case, the view expressed by the learned additional District Judge, Vizinagaram that the question whether these are all self- acquired properties of Sanyasayya or his ancestral properties may have to be decided at the stage of trial of the suit, cannot be in any way faulted at this stage. ( 10 ) IN view of the same, the next aspect which may have to be considered, is whether the direction issued by the learned Additional district Judge to deposit the amount of rs. 5,000/- only every year on or before 31st march pending disposal of the suit can be sustained as it is or the same is liable to be modified. ( 11 ) AS already referred to supra, the suit is one for the relief of partition. 5,000/- only every year on or before 31st march pending disposal of the suit can be sustained as it is or the same is liable to be modified. ( 11 ) AS already referred to supra, the suit is one for the relief of partition. It is needless to say that the appointment of Receiver is a harsh remedy and normally the same need not be resorted to unless a strong case is made out and where there is no dispute at all relating to the shares of the respective parties and where one party is being deprived of the total income and after the court is satisfied that the parties cannot wait till the matter is finally adjudicated by making of final decree for partition inclusive of mesne profits. As already stated supra by me, it is not a case of such a nature. ( 12 ) ORDER 40 Rule 1 of the Civil Procedure code relating to appointment of Receivers reads as follows: "0. 40 R. 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 the 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 power as to bringing and defending suits and for realization, management, protection, preservation and improvement of the property, the collection of rents and profits thereof, application and disposal of such rents and profits and the execution of the documents as the owner himself has or such of those powers as the court thinks fit. (2) Nothing in this rule shall authorize the courts to remove from the possession or custody of property any person whom any party to the suit has not present right to so remove. (2) Nothing in this rule shall authorize the courts to remove from the possession or custody of property any person whom any party to the suit has not present right to so remove. In Kasthuri Bai v. Anguri Chaudhary the Apex court while dealing with the validity of the appointment of Receiver in a suit for partition and possession of the suit property which was in occupation of tenant held that an order appointing third party as Receiver to collect rent and maintain accounts was held to be right in view of the fact that mother of plaintiff was old lady and that though questions whether defendants had any share in suit property etc. , would be decided in suit, and they could not be entrusted with the work in view of the allegations against them. In Kamal Chaudhary v. Rajendra chaudhary, a Division Bench of Patna High court while dealing with the aspect of appointment of Receiver in partition suits had arrived at a conclusion that the making out "a good prima facie case" will be sufficient, proof of waste or mismanagement may not be necessary but however the opinion expressed by the trial court in this regard is to be given great weight. In Chundru Srinivasa rao v. Chundru Venkata Rao a learned single judge of this court had expressed an opinion that appointment of Receiver in partition suit is not barred in all types of cases and in suits filed by sons against father for partition alleging that their father is not providing anything to them for their livelihood and in such circumstances of the case, normal rule that no Receiver can be appointed in cases of partition may be deviated. In Chelikam rajamma v. Padileti Venkataswami Reddy a division Bench of this Court, while dealing with the principles of appointment of a receiver in suit for partition held as follows: (1) the appointment of Receiver cannot be resorted to lightly without considering the entire facts and circumstances. (2) The party seeking the appointment of Receiver must make out a case that he or she was not only kept out of possession of the properties unauthorisedly, but the party in possession is indulging in acts of waste leading to inference of incompetence. (2) The party seeking the appointment of Receiver must make out a case that he or she was not only kept out of possession of the properties unauthorisedly, but the party in possession is indulging in acts of waste leading to inference of incompetence. (3) If, prima facie, the plaintiff has excellent chance of succeeding in the suit, there being no denial with regard to his or her share in the plaint schedule properties, the conduct of the opposite party in keeping the plaintiff out of possession will be a relevant consideration for directing the opposite party to deposit a sum of money approximately representing the value of the yield pertaining to the share of the plaintiff pending disposal of the suit. Even in such circumstances, a Receiver should not be appointed to oust the possession of the opposite party from the joint family properties. The protection of the properties and safeguarding of the rights of the parties shall be the twin objectives impelling the appointment of Receiver. ( 13 ) IN the present case, as already referred to supra, despite the material Exs. A-1 to a-7 the question whether all the properties are the self-acquired properties or they partake nature of the ancestral properties of the deceased Sanyasayya may have to be gone into at the appropriate stage in the trial. It is no doubt true that Ex. B-3 is only a zerox copy but this was relied upon for the purpose of showing that some property belongs to the wife of the first respondent. The other documents relied upon are Exs. B-1 and B-2 the registration extract of the sale deed executed in favour of M. Suryaprakash Rao by the first defendant and the registration extract of sale deed executed in favour of venkat Satyanarayana Raju and others by the first defendant. On the aspect of income no doubt a specific stand was taken by the appellants that the income out of the coconut garden may be about one lakh rupees a year. But the same was disputed and the first respondent had taken a specific stand that the income derived annually may be only from Rs. 10,000/- to Rs. 15,000/ -. It was also stated in the counter that due to lack of rains the first respondent is not deriving any reasonable income from the lands. But the same was disputed and the first respondent had taken a specific stand that the income derived annually may be only from Rs. 10,000/- to Rs. 15,000/ -. It was also stated in the counter that due to lack of rains the first respondent is not deriving any reasonable income from the lands. Taking into consideration all the facts and circumstances of the case, and also giving due weight to the view which had been recorded by the learned Additional District judge, Vizianagaram and inasmuch as the order is a well considered order, I am inclined to modify the order to the following effect. ( 14 ) IN the result, the first respondent is directed to deposit an amount of rs. 10,000/- (Rupees ten thousand) every year on or before 31 st March pending disposal of the suit and except this modification the order of the learned Additional District Judge, vizianagaram in all other respects is hereby confirmed. The learned counsel for the appellants now makes a request seeking permission of the court to permit all appellants to withdraw the amounts as and when deposited by the first respondent. It is needless to observe that the parties are at liberty to move appropriate applications in this regard and such applications shall be considered by the learned Judge in the event of the parties moving such applications. ( 15 ) THE Civil Miscellaneous Appeal is thus partly allowed to the extent indicated above. In view of the relationship between the parties, this court is not inclined to make any order as to costs.