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Uttarakhand High Court · body

2010 DIGILAW 522 (UTT)

RAZIA PARVEZ v. SIKANDER PARVEZ

2010-07-27

TARUN AGARWALA

body2010
JUDGMENT The plaintiffs/appellants filed a suit for partition and for accountancy alleging that the plaintiffs had a half share in the suit property. It is alleged that the plaintiff’s husband and the defendants were co-owners and that in the suit property, a hotel under the name of Hill Way and a school under the name of North Point was running. Further there were various tenants in various portions of the property which were fetching rent. It is alleged that the defendants were not giving the share of the rent and income to the plaintiffs and consequently, the suit was instituted. 2. Alongwith the suit the plaintiffs also filed an application under Order 39 Rule 1 and 2 C.P.C. for grant of a temporary injunction. The plaintiffs also filed an application under Order 40 Rule 1 of the Code of Civil Procedure for an appointment of a receiver. 3. Both the applications were resisted by the defendants admitting that the property was ancestral in nature and that the plaintiff’s husband had made an oral gift, gifting the land and building to the defendants. This oral gift was subsequently reduced in writing on 1st March, 1991. The defendants further contended that the hotel was being run by the defendants, who had constructed the same from his own funds and that the school was being run by a registered society. Consequently, the plaintiffs are not entitled for any relief. 4. That trial court, after considering the evidence on record, found that a prima facie case was made out by the plaintiffs. The trial court found that the hotel was running since 1982 and the school was running since 1986, and at that point of time, the property was joint and at the stage no oral gift, if any had been executed in favour of the defendants. The trial court, consequently allowed the injunction application and restrained the defendants from alienating the property during the pendency of the suit. The trial court, however, found that the plaintiffs were not entitled for an appointment of a receiver and consequently, rejected the said application. The plaintiffs, being aggrieved by the rejection of the application for an appointment of a receiver, has filed the present appeal under Order 43 Rule 1(s) of the Code of Civil Procedure. 5. Heard Mr. Kanwaljit Singh, the learned counsel for the appellants and Mr. The plaintiffs, being aggrieved by the rejection of the application for an appointment of a receiver, has filed the present appeal under Order 43 Rule 1(s) of the Code of Civil Procedure. 5. Heard Mr. Kanwaljit Singh, the learned counsel for the appellants and Mr. T.S. Bindra the learned counsel for the respondents. 6. Learned counsel for the plaintiffs/appellants submitted that the defendants had taken advantage of the absence of the plaintiffs and her husband, who were residing in Sweden and were, therefore, unable to look after the property and that the defendants have illegally manufactured an oral gift, which cannot be taken into consideration and in any case could not be relied upon since the said oral gift was not registered, and which was compulsorily required to be registered under the Registration Act. In support of his submission, the learned counsel placed reliance upon the decision of the Supreme Court in the case of Radhakrishan Laxminarayan Toshniwal Vs. Shridhar Ramchandra Alshi and others reported in A.I.R. 1960 S.C. 1358 and in the case of Kumar Gonsusab and others and Mohammed Miyan Urf Baban and others reported in 2008 (73) A.L.R. 496. The learned counsel submitted that the court below found that a prima facie case was made out and found that the property was an ancestral property in which a hotel and a school was being run and that the property was let out to the various tenants. The learned counsel submitted that the trial court in order to protect the property should have appointed a receiver. The learned counsel submitted that it was just and convenient that the trial court should have appointed a receiver and had committed an error in rejecting the application. Learned counsel submitted that the plaintiff is a widow and in dire need of funds. It was further contended that the property being ancestral, no part of income was being given by the defendants and consequently, it was just and convenient that a receiver should have been appointed, so that the property was not mismanaged and the funds were not misappropriated by the defendants. 7. On the other hand, the learned counsel for the defendants submitted that the oral gift which was, subsequently, reduced in writing was not required to be registered. 7. On the other hand, the learned counsel for the defendants submitted that the oral gift which was, subsequently, reduced in writing was not required to be registered. The said gift was acted upon by the plaintiffs’ husband and, based on the said gift, the defendants have become the absolute owner. Further there is no allegation that the defendants were mismanaging the property nor is there any allegation of misappropriation of the funds and, even assuming that the appellants are not the absolute owner but are only co-owners, nonetheless, no case for appointment of the receiver is made out nor was it just and convenient for the court to exercise the power under Order 40 Rule 1 C.P.C. for an appointment of a receiver. 8. In order to appreciate the submission of the learned counsel for the parties, it would be appropriate to peruse the provision of Order 40 Rule 1 of the C.P.C. as amended by the Allahabad High Court, which is applicable to the State of Uttarakhand. For facility, the said provision is extracted hereunder : 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 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 powers, as to bringing and defending suit and for the realisation, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, 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 thinks fit. 2. Nothing in this rule shall authorise the Court to remove from the possession or custody of the property; any person whom any party to the suit has not a present right so to remove. High Court Amendment Allahabad- In sub-rule (2) after the words “any person” insert a ‘comma’ and add words “not being a party to the suit”. (10.7.1943). 9. From the aforesaid provision, it is clear that the object of appointment of a receiver is to protect and preserve the property in suit. High Court Amendment Allahabad- In sub-rule (2) after the words “any person” insert a ‘comma’ and add words “not being a party to the suit”. (10.7.1943). 9. From the aforesaid provision, it is clear that the object of appointment of a receiver is to protect and preserve the property in suit. In order to appoint a receiver, the plaintiff is not only required to show a prima facie case in his favour but must also show that there is a danger of loss of the property in suit. An order to appoint a receiver is passed only in exceptional cases and cannot be passed in a routine manner. The principles guiding the discretion of the Court for appointment of a receiver can be summarized as under : (a) It is dependent on the view taken by the Court with regard to the purpose of protecting the right of all parties and subject matter; (b) Unless the plaintiff is able to make out a prima facie case that he has an excellent chance of success in the suit Court should not appoint a receiver; (c) The plaintiff shall not only show a case of adverse and conflicting claims to property but also he must show some emergency or danger or loss demanding immediate action and his own rights are reasonably clear and free from doubt; (d) Order having the effect of depriving a defendant of a defacto be in medio i.e. in the enjoyment of none; (e) Conduct of the party who must come with clear hands is also a relevant consideration. 10. In Mani Lal Vs. IIIrd Additional District and Sessions Judge, Kanpur Dehat and others reported in A.R.C. 1997 (1), the court explained the meaning of the expression “just and convenient” as under : The expression “just and convenient” used in Order XL, Rule 1 C.P.C. have been borrowed from English Judicature Act which greatly enlarged the power formerly exercised by the Court of Chancery. This expression does not mean that the Court has to appoint receiver simply because the Court thinks it convenient. This expression does not mean that the Court has to appoint receiver simply because the Court thinks it convenient. It is to be done according to legal principles taking into account all the circumstances of the case for protection of the right of all the parties interested in the controversy and in the subject matter and for prevention of injury based on the fact that there is danger to the property and no other adequate means of saving it is available and that there is reasonable apprehension of waste, malversation, misappropriation or removal of property which may result in irreparable loss, vide Prabhat Misra Vs. Jai Shanker Tripathi (Sic) AIJ 672, Dibakar Naskar Vs. Rotary Village, 82 CWN 44. The primary consideration should be to see how the suit property is best preserved without being wasted, Jambagavalli Vs. Govindaraja, A.I.R. 1980 Mad. 103. 11. In the light of the aforesaid, the court finds that there is no averment that the defendants had been mismanaging the property in question. There is no allegation that the defendants were misappropriating the funds. Only a bald allegation has been made to the effect that the defendants may misappropriate the funds. In my opinion, such bald allegation is not sufficient to invoke the provision of Order 40 of the Code of Civil Procedure nor, on such allegation, it is just and convenient for the court to appoint a receiver. 12. There is another aspect of the matter. The hotel is running since 1982 and the school is being managed by a registered society since 1986. There are tenants who are paying the rent to the defendants. The petitioner’s husband died in 1992 and the plaintiffs kept quiet over the matter for 15 long years and thereafter, filed the suit in 2006. No explanation has been given as to why the suit could not be filed earlier. In the absence of a plausible explanation being given and, in the absence of the allegations about misappropriation of fund and, in the light of the fact that the defendant is a possession of the property as a co-owner, if not as a absolute owner, the court finds that it is not just and convenient to appoint a receiver. 13. In the light of the aforesaid, this court does not find any error in the impugned order. The appeal fails and is dismissed.