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2007 DIGILAW 1045 (PAT)

Vijai Kumar v. Kiran Devi

2007-06-03

S.N.HUSSAIN

body2007
Judgment 1. This Miscellaneous Appeal has been filed by defendant no. 1 of Title Suit No. 88 of 2002 against order dated 23.7.2004 by which learned Subordinate Judge VII, Biharsharif, Nalanda, allowed the petition filed by sole plaintiff (respondent no. 1) under Order XL Rule-1 of the Code of Civil Procedure (hereinafter referred to as the Code for the sake of brevity) and directed the plaintiff to deposit Receivers fees of Rs. 500.00 whereafter Receiver was to be appointed. It is also stated that the plaintiff (respondent no. 1) deposited the said amount on 24.7.2004, whereafter the learned court below by its order dated 4.8.2004 appointed Sri Sanjeev Kumar Chandrayavee, Advocate, as Receiver of the suit properties. 2. The aforesaid suit was filed by the sole plaintiff (respondent no. 1) for partition of 1/5th share claimed by her in the suit property. The claim of the plaintiff is that the suit property belonged to one Narain Mistri who died in the year 1989 leaving behind a widow, four daughters and a son, but subsequently the widow of Narain Mistri also died in the year 2001 and hence the entire property devolved upon the aforesaid four daughters and a son who are parties to the Suit and the instant Appeal. It is also claimed that defendant no. 1 (appellant) was the only brother who was looking after the properties and letting out shops and realising rent on behalf of all the co-sharers, but subsequently he stopped payment of due share to the plaintiff in the income of rent etc. because of which the plaintiff demanded partition, but he refused and hence the plaintiff filed the aforesaid suit. 3. On the other hand, defendant no. 1 (appellant) contested the suit by filing written statement stating that although some properties were purchased by Narain Mistri and his wife Brahma Devi, but the other properties were purchased by defendant no. 1 Vijai Kumar, his wife Laxmi Devi and his son Vishal Kumar out of their own fund. He further claimed that Brahma Devi gifted her self acquired property to Vishal Kumar and Laxmi Devi and subsequently the residential house built by Narain Mistri was partitioned between his widow and his son defendant no. 1 (appellant) half and half to which the daughters agreed. He further claimed that Brahma Devi gifted her self acquired property to Vishal Kumar and Laxmi Devi and subsequently the residential house built by Narain Mistri was partitioned between his widow and his son defendant no. 1 (appellant) half and half to which the daughters agreed. Hence, he claimed that the suit was barred by waiver, estoppel and acquiescence and the plaintiff has got no share at all in the suit property. 4. Subsequently on 13.8.2003, the plaintiff (respondent no. 1) filed a petition under Order XL Rule 1 of the Code for appointment of Receiver of the suit properties on the ground that although she had 1/5th share in the suit properties, but no share in the usufruct thereof was being given to her by defendant no. 1, who was looking after and managing the suit properties. 5. An objection was filed by defendant no. 1 (appellant) on 28.8.2003 controverting the claim of the plaintiff and stating that there was no occasion for appointment of Receiver as the plaintiff had no share in the suit properties which were acquired by defendant no. 1, his wife and his son from their own income and in their own names by registered documents. He further claimed that two of the sisters, namely defendants no. 3 and 4, never raised any objection to the right, title and possession of defendant no. 1, rather in their written statements, they supported the case of their brother, namely defendant no. 1 (appellant). 6. The said petition of the plaintiff was allowed by the learned court below by the impugned order dated 23.7.2004, whereafter on 24.7.2004, the plaintiff deposited Rs. 500.00 in the court below as Receivers fees, and on 4.8.2004, the learned court below appointed Sri Sanjeev Chandrayavee, Advocate, as Receiver of the suit properties. According to defendant no. 1 (appellant) order dated 4.8.2004 was passed by the court below without even hearing defendant no. 1 (appellant) and after the said order the Receiver straightway sent notices to the tenants of the appellant, his wife and his son directing them to deposit rent to him. 7. The said order of the learned trial court has been challenged by defendant no. 1 of the said partition suit in the instant Miscellaneous Appeal. 1 (appellant) and after the said order the Receiver straightway sent notices to the tenants of the appellant, his wife and his son directing them to deposit rent to him. 7. The said order of the learned trial court has been challenged by defendant no. 1 of the said partition suit in the instant Miscellaneous Appeal. In this appeal, the appellant filed an interlocutory application bearing I.A. No. 4326 of 2004 which was heard on 6.1.2005 and this court passed an ad interim order of stay of the operation of the said impugned order of the learned trial court. 8. It appears from the impugned order that the learned court below has passed the same without considering the necessary issues and the essential requirements for deciding the question of appointment of receiver. (i) The term receiver, as per the BLACKS LAW DICTIONARY (Eighth Edition) means a disinterested person appointed by a court, or by a corporation or other person, for the protection or collection of property that is the subject of diverse claims (for example, because it belongs to a bankrupt or is otherwise being litigated). (ii) According to HALSBURYS LAWS OF ENGLAND (Fourth Edition reissue) "a receiver is a person appointed for the collection or protection of property. He is appointed either by the court or out of court by individuals or corporations. If he is appointed by the court, he is an officer of the court deriving his authority from the courts order. If he is appointed out of court, he is an agent and has such powers, duties and liabilities as are defined by the instrument or statute under which he is appointed and derive from the general law of the agency." 9. The question with regard to appointment of receiver as well as the question with regard to injunctions have been very important issues under consideration of the courts of law, specially civil laws from the very beginning. (i) In case of Aslatt vs. Corporation of Southampton, reported in 1880 (Vol. The question with regard to appointment of receiver as well as the question with regard to injunctions have been very important issues under consideration of the courts of law, specially civil laws from the very beginning. (i) In case of Aslatt vs. Corporation of Southampton, reported in 1880 (Vol. XVI) Law Reports, 143, the Chancery Division of the High Court of Justice, England, held that a mandamus or an injunction may be granted or a receiver appointed by an interlocutory order of the court in cases in which it shall appear to the court to be just and convenient that such order should be made, but it was specifically pointed out that the words just or convenient, did not mean that the court was to pass such order simply because the court thought it convenient, rather it meant that the court should pass an order for the protection of rights or for the prevention of injury according to legal principles. (ii) In another case of Robinson vs. Pickering, reported in 1881 (Vol. XVI) Law Reports, 660, The Chancery Division of the High Court of Justice, England, held that such an order can be passed to preserve a property for the benefit of all the creditors of the plaintiff. (iii) In case of Holmes vs. Millage, reported in 1893 (Volume I) Law Reports 551, the Queens Bench Division of the Court of Appeal, England, held that appointment of a receiver of a property is a serious interference with its business and it should be passed after considering whether it would be equitable, just or convenient to pass an order appointing a receiver specially at the instance of a judgment creditor against the judgment debtor. (iv) In case of Mathusri Umamba Boyi Saiba and Others vs. Mathusri Dipamba Boyi Saiba and Others, reported in 1896 Indian Law Reports (Vol XIX) Madras, 120 the Privy Council held that before appointing a receiver the court has to consider whether appointment of a receiver is equitable, just and convenient, whether appointment of a certain person as a receiver is of any advantage to the estate and to the parties and whether he is fitter than the other parties to the suit. 10. 10. Although the law with regard to appointment of receiver before the passing of the Judicature Act, 1873, had changed thereafter in England as well as in India, yet the principles on which the jurisdiction of the courts of law relating to appointment of receiver rested have not been changed even after coming into force of the Code of Civil Procedure, 1908 and its various amendments. The rules relating to sequestration have never been understood as extending to all the suits in which any of the parties specially plaintiff, files a petition for ad interim order of appointment of receiver. It is being observed by this court that in almost every partition suit, a petition is invariably filed in the trial court for appointment of a receiver and in many of the cases receivers are appointed without appreciating the ingredients and requirements necessary for passing such orders and without appreciating that appointment of a receiver is a very serious matter as it affects specific right of a party, specially of a party who is in possession of the suit property, and such matter becomes more serious in a partition suit in which some of the defendants claim exclusive right, title, interest and possession on the basis of legally admissible evidence. (i) As far back as in 1921, this Court in case of P.C.L. Choudhuri vs. K Singha and H.C. Dutt, reported in 1922 Paina 318 held that appointment of receiver is an equitable relief and if the applicant does not establish a special equity in his favour, it is impossible to say that it is "just and convenient" that a receiver should be appointed. (ii) The Privy Council in case of Benoy Krishna Mukherjee and others vs. Satish Chandra Giri, reported in 1927-28 (Vol. LV) Law Reports of Indian Appeals 131, held that an interim appointment of a receiver of property in the possession of, and claimed by, the defendant in the suit, should be made only if there is a well funded fear that in the absence of protection,, the property will be dissipated or irreparably injured. LV) Law Reports of Indian Appeals 131, held that an interim appointment of a receiver of property in the possession of, and claimed by, the defendant in the suit, should be made only if there is a well funded fear that in the absence of protection,, the property will be dissipated or irreparably injured. (iii) The Oudh Chief Court, in case of Bidurramji vs. Kesho Ramji, reported in AIR 1939 Oudh 61, held that power conferred under Order XL Rule 1 of the Code should be exercised with great care and caution as the power of court to appoint receiver is limited only to cases where it appears just and convenient for protection of the property from any imminent danger of being wasted. 11. In a plethora of other decisions various High Courts as well as the Hon ble Apex Court decided the various issues with respect to the appointment of a receiver in a suit in view of the provisions of law and various case laws. Taking into account the specific provisions of law as well as the views expressed in various decisions as aforesaid, the Madras High Court passed a land mark judgment in case of T. Krishnaswamy Chetty vs. C. Thangavelu Chetty and Others, reported in AIR 1955 Madras 430 prescribing the five essential requirements for appointment of receiver. The said five principles which were laid down by the said decision as Punch Sadachar are as follows: (i) Appointment of a receiver pending a suit is a matter resting in the discretion of the court; (ii) No receiver should be appointed except upon proof that plaintiff has a very excellent chance of succeeding in the suit; (iii) Plaintiff must show some emergency or danger or loss demanding immediate action; (iv) Receiver should not be appointed where it has the effect of depriving a defendant of his de facto possession; and (v) the court should look into the conduct of the party who makes application. 12. 12. So far the first principle is concerned, it is well settled that the court considering the matter of receivership is exercising an equity jurisdiction and in such cases, the discretion of the court should not be arbitrary or absolute, rather it should be a sound and judicial discretion taking into account all the circumstances of the case, exercised for the purpose of permitting the ends of justice and protecting the rights of the parties and the subject matter of the suit and also when there is no other adequate remedy or means of accomplishing the desired objects of the judicial proceeding. 13. So far the second principle is concerned, the appointment of Receiver cannot be legally equated with the issuance, of an order of injunction. For an order of injunction prima facie case has to be shown, but in case of appointment of Receiver a prima facie case would not be sufficient, rather the plaintiff has to show that he has a very excellent chance of succeeding in the suit without which no order of appointment of Receiver can be passed. 14. So far the third principle is concerned, merely showing a case of adverse and conflicting claims to property will not suffice, rather the plaintiff has to show some emergency or danger demanding immediate action. In such a case the right of plaintiff must be reasonably clear and free from any doubt and in addition to that the element of danger to the suit property is very important in such matters and the court should appoint a Receiver only when there is a great and imminent danger demanding immediate relief. 15. So far the fourth principle is concerned, if a Receiver is appointed with respect to a property in which the defendant has a de facto possession, it would naturally amount to deprive the defendant from his right which might cause irreparable wrong. Hence in case of title only the court should be very reluctant to disturb possession of a party by appointment of a Receiver. Receiver can be appointed only when the property is exposed to imminent danger and emergency and the person in possession has obtained it through fraud or force requiring interposition by Receiver for the security of the property. 16. Receiver can be appointed only when the property is exposed to imminent danger and emergency and the person in possession has obtained it through fraud or force requiring interposition by Receiver for the security of the property. 16. So far the fifth principle is concerned, the court should usually refuse to interfere unless the conduct of the plaintiff is free from blame and he has come to the court with clean hands and has not been disentitled to the equitable relief by his/her laches, delay, acquiscence etc. A Receiver should not be appointed in supersession of a bona fide possessor of property in controversy and bonafides of possessor have to be presumed until the contrary is established. 17. The said decision of the Madras High Court has been appreciated in several decisions of the Hon ble Apex Court as well as of this High Court as has been mentioned in paragraph 7 of the decision of this court in case of Mostt. Patri Devi @ Girja Devi & anr vs. Ganesh Lal Pradhan & Ors, reported in 2003(2) PUR 864. 18. Without considering the aforesaid essential principles and ingredients, the learned court below has decided the matter in issue only on the basis that two decisions of Patna High Court and another decision of Delhi High Court in case of Ramsewak Ojha and Others vs. Sheopujan Pandey, reported in AIR 1959 Patna 75, in case of Ram Ekbali Singh and Anr. vs. Sheo Pujan Singh & Ors., reported in AIR 1997 Patna 164 and in case of Prem Sagar Kumara and Others vs. Panna Lai Kumara and Another, reported in AIR 1977 NOC 95 (Delhi), relied upon by defendant no. 1 (appellant) were not relevant to the facts and circumstances of this case. Learned court below did not consider various other decisions of this court in that regard and decided the matter cursorily against the basic principles applicable in such matters. 19. 1 (appellant) were not relevant to the facts and circumstances of this case. Learned court below did not consider various other decisions of this court in that regard and decided the matter cursorily against the basic principles applicable in such matters. 19. Although it was held by a Division Bench of this Court in case of Bhubaneshwar Prasad Narain Sinha vs. Rajeshwar Prasad Narain Sinha and Others," reported in AIR 1948 Patna 195, that deprivation from enjoyment of joint family property can be a ground for appointment of receiver, but at the same time it was also held that in a partition suit regarding joint family property receiver can only be appointed by consent of all the parties with respect to family property consisting of land unless special circumstances, such as waste or decay is proved by the applicant. In the instant case admittedly all the properties in suit are not lands and neither there is consent of all the parties for appointment of receiver, nor any special circumstances had been shown by the plaintiff-respondent no. 1 with respect to any waste or decay of the suit property. In the said circumstances, even according to the aforesaid decision of this court receiver should not have been appointed in the facts and circumstances of the instant case. 20. In another decision of a Division Bench of this Court dated 7.11.1974 in case of (Smt) Hrideshwari Devi @ Hrideshwari Kumar & Ors. vs. Shri Priyabrat Kumar & Ors., reported in 1978 BBCJ 288 , the aforesaid decisions of this High Court and of the Madras High Court in cases of Bhubaneshwar Prasad Narain Sinha (Supra) and T. Krishnaswamy Chetty (Supra) were relied upon and it was held as follows: "An analysis of the case laws on the point clearly brings out the duty of the court to be very cautious in allowing an application for appointment of a receiver in a case where the defendant is in actual possession of the property. In such a case it has to require special reasons to be proved for interfering with such possession. At the same time the court has to bear in mind that this is a remedy which may be the only remedy open to a plaintiff for the maintenance and preservation of the property in suit. In such a case it has to require special reasons to be proved for interfering with such possession. At the same time the court has to bear in mind that this is a remedy which may be the only remedy open to a plaintiff for the maintenance and preservation of the property in suit. It is true that a court will require a plaintiff to show a very strong case of title and his right to possession as also that the property is in danger of being wasted." 21. It further transpires that later another Division Bench of this Court passed an order dated 12.5.1976 in case of Kamal Choudhary & Anr. vs. Rajendra Choudhary & Ors., reported in 1976 BBCJ 521 in which earlier two judgments of the Division Benches of this Court mentioned above were completely ignored and a different view was taken holding that for appointment of receiver there should be a good prima facie case and not strong prima facie case and that one co-owner occupying the whole property excluding other co-owner from the shares of rent and profit is sufficient for appointment of receiver even if no waste or mismanagement is proved. 22. All the aforesaid three decisions of the Division Benches of Patna High Court were considered by this court in case of Mostt. Patri Devi @ Girja Devi & Anr vs. Ganesh Lal Pradhan & Ors., reported in 2003(2) PUR 864 and it was held that in Bihar Subordinate Judiciary in almost all the partition suits a petition is invariably filed for appointment of a receiver, but most of them do not meet the above mentioned five ingredients required for the purpose of appointment of receiver, due to which precious time is wasted. Appointment of receiver is a stringent matter and it becomes more stringent in a partition suit. 23. Appointment of receiver is a stringent matter and it becomes more stringent in a partition suit. 23. Since the case of (Smt.) Hrideshwari Devi @ Hrideshwari Kumar (supra) was decided first by a Division Bench of this court on 7.11.1974 relying upon the earlier Division Bench Judgment of this court in case of Bhubaneshwar Prasad Narain Sinha (supra), whereas the case of Kamal Choudhary and others (supra) was decided subsequently by another Division Bench of this Court on 12.5.1976 without considering the five basic ingredients as well as aforesaid two earlier decisions of this court in case of (Smt) Hrideshwari Devi @ Hrideshwari Kumar (Supra) and Bhubaneshwar Prasad Narain Sinha (Supra), the law laid down by the earlier decisions would hold good for being followed as precedence and not the subsequent one. 24. From the pleadings of the parties, it is quite apparent that in the instant case there is no definite case of unity of title because admittedly defendant no.1 and his wife and son have been independently dealing with the suit properties as absolute owners and two of his sisters, namely defendants no. 3 and 4, have been supporting his case throughout. Furthermore, some of the suit properties have been acquired much prior to the suit through registered deeds by the wife and son of defendant no. 1 (appellant) from the father and the mother of the plaintiff and defendants, who even according to the claim of the plaintiff were owners of the suit properties in their life time. The said transferees have not been impleaded in the suit, although they appeared to be necessary parties, nor their deeds of transfers have been challenged or even mentioned by the plaintiff-respondent no.1 in her pleadings. 25. In the aforesaid facts and circumstances, it is quite apparent that no case for appointment of receiver is made out by plaintiff-respondent no. 1 and the learned court below has decided the matter in complete violation of the specific principles of law involved in the instant case. 26. In the result, the impugned order of the learned court below is set aside and the plaintiffs claim for appointment of receiver is rejected. Accordingly the instant Miscellaneous Appeal is allowed, but in the aforesaid facts and circumstances of this case, there will be no order as to cost. 27. 26. In the result, the impugned order of the learned court below is set aside and the plaintiffs claim for appointment of receiver is rejected. Accordingly the instant Miscellaneous Appeal is allowed, but in the aforesaid facts and circumstances of this case, there will be no order as to cost. 27. However, before parting with this judgment it would be proper to state here that while passing this judgment, this court has not arrived at any final decision on the merits of the case and hence whatever this court or the trial court has observed in this regard was exclusively meant for disposal of the plaintiffs petition for appointment of receiver and would naturally not affect the merits of the case of either of the parties which have to be finally decided at the time of disposal of the suit.