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2009 DIGILAW 873 (AP)

Meda Baby Reddy v. Akula Jyothi

2009-12-04

B.N.RAO NALLA, V.V.S.RAO

body2009
Judgment : The appellant is the first defendant. Aggrieved by the interlocutory order dated 3-09-2009 passed by the Court of the I Additional District Judge, Nellore, in I.A.No.180 of 2009 in O.S.No.23 of 2008, he filed the instant appeal under Order XLIII Rule 1 of the Code of Civil Procedure, 1908 (CPC). 2. First respondent (hereafter called, plaintiff) instituted the suit against the appellant (first defendant) and her mother (second respondent herein) for partition of suit schedule property, being agricultural land admeasuring Acs.4.00 situated at Allipuram Village in Nellore. She alleged that the suit schedule property was owned by her mother, that she has not been heard from 28-10-2000, that a presumption arose under Section 108 of the Indian Evidence Act, 1872, that she is dead and no more, and that she is entitled to half share in the suit schedule property owned and left behind by her mother. In the suit she prayed for division of suit schedule property into two equal shares by metes and bounds and allotment of one such share to her as well as costs. Along with the suit she filed I.A.No.180 of 2009 under Order XL Rule 1 of CPC for appointment of a Receiver. The application was opposed. Nonetheless, the Court below by impugned order dated 3-9-2009 appointed an advocate as Receiver to manage the property, account the income and deposit in the Court. 3. In this appeal placing reliance on a Division Bench judgment of this Court in Chelikam Rajamma v. Pedileti Venkataswami Reddy (1) 1993 (2) ALT 154 (D.B.), the learned Counsel for the appellant submits that the plaintiff has not made out any case for appointment of Receiver, and therefore, the impugned order is erroneous. He also submits that the mother of the plaintiff and first defendant is very much alive, and therefore, succession would not open. He also submits that on 20-2-1993 second defendant executed a Will in favour of the first defendant/appellant bequeathing all her property, and therefore, partition suit is not maintainable. Per contra, learned counsel for the plaintiff/first respondent submits that though his client is entitled to half share, first defendant alone is enjoying the fruits of the property and therefore appointment or Receiver is justified to prevent wastage of the property. 4. According to the plaintiff her mother Bujamma was last seen on 28-10-2000, and thereafter disappeared. Per contra, learned counsel for the plaintiff/first respondent submits that though his client is entitled to half share, first defendant alone is enjoying the fruits of the property and therefore appointment or Receiver is justified to prevent wastage of the property. 4. According to the plaintiff her mother Bujamma was last seen on 28-10-2000, and thereafter disappeared. Plaintiff then gave paper publication on 28-7-2004 about disappearance of mother and also lodged Police complaint on 16-4-2007. According to her, presumption under Section 108 of the Evidence Act would arise from 27-10-2007. If it is true, plaintiff must show that after 27-10-2007 when she allegedly became entitled to half share, there were acts of wastage committed by the first defendant. No such allegation was made in the plaint or in the affidavit accompanying the application for appointment of Receiver. Indeed, as is seen, the plaintiff did not even seek the relief of past and future profits, and therefore, it is doubtful whether she can seek appointment of Receiver in respect of the property in the possession of her brother. In partition suits between blood relations like brother, sister, children and parents, though appointment of a Receiver is not prohibited, the Court should be very cautious, as such appointment may result in prejudice to both parties. Instead, it is always presumable for the Court to put the parties to conditions like requiring the deposit of some amount in the Court depending on the facts and circumstances of the case. 5. In Chelikam Rajamma (1 supra) this Court elaborately considered the circumstances under which a Receiver can be appointed. Making reference to leading decisions of Bombay, Madras and this Court, the Division Bench summarized the relevant principles of law as below, (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 unauthorizedly, but the party in possession is indulging in acts of waste leading to the 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 unauthorizedly, but the party in possession is indulging in acts of waste leading to the 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. 6. We have examined the case in the light of Order XL Rule 1 CPC as well as the principles laid down by the Division Bench extracted hereinabove. In the case on hand the plaintiff did not even seek the relief of mesne profits nor made necessary allegations warranting appointment of advocate Receiver. Therefore, the impugned order suffers from error. 7. Accordingly, the Civil Miscellaneous Appeal is allowed. The Court below is directed to dispose of the suit within a period of six months excluding the Court vacation period, without seeking further extension of time. There shall be no order as to costs.