Gulamjan Khan and others vs (sic)ainubunnisa Begum

This is an appeal under S. 605, Cl. (21). Hyd. Civil P. C. (S. 104, C. P. C.), on behalf of the Defendants against the order of the Sessions Judge, Aurangabad dated 20th February 1951 allowing the petition of the Plaintiff and appointing Mr. Prabhakar Rao as Receiver under Sec. 535 of the Hyderabad CPC (corresponding to Order 40, Rule 1 of the Central Procedure Code). This appeal arises out of a miscellaneous petition filed in a suit for possession and mesne profits. The allegation in the petition is that the suit property belonged to Mohammed Khan the deceased, who was Plaintiff''s husband; Defendants have no right to the property and have wrongfully got into possession, and it has been brought to the knowledge of the Plaintiff that they are committing waste by cutting down fruit-bearing trees and selling the wood & are thinking of running away, so a Receiver may be appointed under Sec. 535 of the Hyderabad Civil Procedure Code. This petition was supported by an affidavit.. On this petition, the Court passed an ex parte order appointing a Receiver. The Defendants appeared & filed a petition denying that Plaintiff is the wife of the deceased & alleged that they are the nephews of the deceased and are in rightful possession of the property. They further denied that they in any way intend transferring the property or causing any waste. This petition was also supported by an affidavit. Both the parties were cross-examined. The Court, after hearing the arguments of the parties on this petition, appointed Mr. Prabhakar Rao as Receiver. Against which is this appeal.

2-3. On behalf of the Appellants, it is urged that they are the nephews of the deceased and they do not admit that the Plaintiff is the wife of the deceased, and when admittedly they are in possession, an order for the appointment of a Receiver cannot be given unless and until the Plaintiff establishes a prima facie case or shows such well founded fear that if the property in question were to remain in their possession it will be dissipated or other irreparable mischief might be done. In the case as there is no such allegation Receiver cannot be appointed. In this connection, the learned Advocate relied on the words "just and convenient" in Sec. 535 of the Hyderabad Civil P. C, corresponding to Order 40, Rule 1 of the Central Civil Procedure Code, & drew our attention to the following rulings: '' Bhupendra Nath Mookerjee Vs. Monohar Mukherjee, ; ''Ali Raza Khan v. Newazish Ali Khan,'' A. I. R. 1939 Qudh 229; Manavadan Thamburatti Vs. P.K. Manavadan and Others, & '' Dharendra Krishna Deb and Others Vs. Surendra Krishna Nandi and Others,

Mr. Sadashivrao, Advocate on behalf of the Respondent argued that there is sufficient evidence on the record to justify the Court to pass an order appointing a Receiver and this cannot be interfered in appeal as it is discretionary. His further contention is that Plaintiff is the wife of the deceased while the Defendants have no right or title to the property; as they are committing waste and trying to transfer or encumber the property, the order for the appointment of a Receiver is not only just but convenient. In order to appreciate the arguments of the Advocates a reference to the petitions is necessary.

In the petition of the Plaintiff for the appointment of a Receiver, the allegations against the Defendants are that they are in wrongful possession and are committing waste and trying to transfer the property. The only evidence in this respect is the affidavit. The Defendants have denied this and have also filed an affidavit. As regards waste, a Commssioner was appointed by the Court below to ascertain whether there was any truth in the allegation of the Plaintiff. The Commissioner, Mr. Prabhakar Rao, after inspecting the sites along with the Vakils of the parties, has submitted a detailed report which is to the effect that all the fruit-bearing trees are in a very satisfactory and good condition and no damage or waste of any kind could be seen; there was standing crop in the fields which also was in a very good condition and it has not been damaged; houses are also in a very good condition. Against this report there is no other evidence. Thus, from the report of the Commissioner there does not seem to be any truth in the allegation that the defendants are committing waste.

As regards the other allegation that the Defendants are in wrongful possession and are intending to transfer the property, the Defendant''s reply is that they are the nephews, and Plaintiff is not the wife, of the deceased and that they have no intention to transfer any property. The fact of relationship depends on evidence and it is premature now to say anything.

As regards the intending transfer, Defendants also have filed a counter-affidavit and they have been cross-examined. They have stated that they have no intention to transfer any property. It is stressed on behalf of the Petitioner-Plaintiff that when the Defendants have admitted that they have sold certain property, this fact alone is sufficient to cause apprehension. We are afraid we cannot accept this contention. It is true that the Defendants have admitted that they have sold certain properties, but they say that it is a small portion & it was sold in furtherance of the contract entered into by the deceased himself who had received the earnest money. This matter too depends on evidence and so it is premature to form any opinion regarding the same, but on this account alone it would not be safe to dispossess the Defendants, for, in case they establish the fact, the interference by the Court might cause mischief to the Defendants.

The allegation that Defendants'' possession is wrongful also depends on evidence. After which we have to see as to whether a Receiver can be appointed and whether it would be just and convenient to do so. Section 535 of the Hyderabad Civil Procedure Code, corresponding to Order 40, Rule 1 of the Central Civil Procedure Code, provides that a Court may appoint a Receiver whenever it appears to the Court to be "just and convenient". The matter is thus left to the discretion of the Court. Such discretion must however, be exercised not arbitrarily but judicially and according to the legal principles. The object and purpose of the appointment of a Receiver may generally be stated to be the preservation of the subject-matter of the litigation pending a judicial determination of the rights of the parties thereto. The Court does not at the time of appointment of a Receiver arrive at any final decision on the merits of the case, its aim being merely to preserve the status quo during the litigation. In such cases, the Court must, of necessity, exercise a discretion as to whether it will or it will not take possession of the property by its Officer. Where the property is in the enjoyment of nobody, i.e. IN MEDIO, the Court can hardly be wrong in taking possession. It is the common interest of all the parties that the Court should prevent a scramble, but where the object of a Plaintiff is to assert the right to the property of which the Defendant is in enjoyment, the case is necessarily involved in further question: The Court, by taking possession at the instance of the Plaintiff, may be doing wrong to the Defendant, in some cases an irreparable wrong If the Plaintiff should eventually fail to establish his right against the Defendant, the Court may. by its interim interference, have cause mischief to the Defendants, for which the sub sequent restoration of the property may affor(sic) no adequate compensation. In the present case, the property is in the possession of the Defendants. Hence it has to be seen whether they can be dispossessed and whether it is "just and convenient".

In the case of " Bhupendra Nath Mookerjee Vs. Monohar Mukherjee, it was laid down that the appointment as well as the removal of a Receiver is a matter which rests in the sound discretion of the Court. A receiver should not be appointed in supersession of a bona fide possessor of the property in controversy unless there is some substantial ground for interference. The words "just and convenient" in Order 40, Rule 1 of the Code mean that the Court should appoint a Receiver for the protection of property or the prevention of injury according to legal principles and not that the Court can make such appointment, because it thinks convenient to do so. They confer no arbitrary and nonregulated discretion on the Court. Where the object of the Plaintiff is to assert a right to property of which the Defendant is in the enjoyment the case is necessarily involved in further questions. The Court by taking possession at the instance of the Plaintiff may be doing a wrong to the Defendant, in some cases an irreparable wrong. In such cases the Court should proceed with the greatest caution before dispossessing the Defendant. In the case of ''Benoy Krishna v. Satish Chandra'', AIR 1928 PC 49, their Lordships of the Privy Council have laid down that on an interim application for a receivership, the Court has to consider whether special interference with the possession of a Defendant is required, there being a well-founded fear that the property in dispute will be dissipated or that irreparable mischief may be done unless the Court gives its protection. In the case of ''P.C.L. Choudhuri v. K. Singha''. A I R 1922 Pat 318, it has been held that the appointment of a 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. The first essential condition for the appointment of a Receiver is that the applicant must satisfy the Court that he has an interest in the property to be affected by the order. The same principle has been laid down in the other cases cited by the learned Vakil on behalf of the Appellants. So we do not wish to discuss the same in detail.

Applying these principles, if we consider the petition under question we cannot agree with the opinion of the lower Court. The reasons given by the lower Court for the appointment of a Receiver are that the Plaintiff is an old woman and the Defendants are many, the management of the property is not done by one man but with the consultation of all the Defendants, the property is enormous and it is not possible that such a management would be satisfactory and feasible; it may result in more waste and Plaintiff may be deprived of the fruits of the decree; Defendants are possessed of sufficient means and they do not depend on the suit property; they had no interest in the lifetime of the deceased and have come into possession after his death. To our minds all these reasons are not sufficient to warrant the appointment of a Receiver, and the dispossession of the Defendants. Stress is laid on this that when the Defendants'' possession is wrongful and certain property belongs to the Plaintiff, the appointment of a Receiver is justified. The fact that certain properties belong to the Plaintiff also requires proof as it is not admitted by the Defendants that they are hers, but their contention is that in the plaint it is admitted that all the properties belong to the deceased. On behalf of the Respondents it is urged that this allegation has specifically been made in the reply to the written statement and documents have been filed which are prima facie proof. It may be so, but it cannot be said that it is conclusive proof, and so we refrain to give any opinion now.

After which the only question that remains is the possession of the Defendants. Plaintiff''s contention is that she is the wife of the deceased and Defendants have no title to the property and they are in wrongful possession. Defendants deny that Plaintiff is the wife of the deceased and allege that they are the nephews of the deceased and in rightful possession. The fact of possession rests on title and that is in dispute and can be decided only after evidence is led by the parties. It is stressed on behalf of the Respondent that she has filed certain documents which are in the form of a decree and sale deed, in which Plaintiff has been mentioned as the wife of Mohammed Khan, and this is sufficient to make out a prima facie case that she is the wife of Mohammed Khan. These documents are said to have been filed along with the reply of the Plaintiff to the written statement. It does not appear from the record whether any further reply has been filed on behalf of the Defendants, but as it relates to proof it is premature for us to say anything regarding them. It is further contended that Plaintiff in her statement on oath has stated that she is the wife of the deceased Mohammed Khan. On behalf of the Appellants, it is urged that if this statement of the plaintiff is taken into consideration, then from that statement the relationship of the Defendants with the deceased can be established. At this stage, we do not wish to say anything regarding this as it might affect the merits of the case. Plaintiff admits that at present Defendants are in possession. When it is so admitted Plaintiff will have not only to show that she has a prima facie right, but that it is "just and convenient" also. In cases of possession of the Defendants, Courts have got to take great care in dispossessing them, for, by taking possession it may be doing wrong, in some cases an irreparable wrong, and if the Plaintiff should eventually fail to establish his right against the Defendants, the Court may, by its interim interference, have caused mischief to the Defendant for which the subsequent restoration of the property may afford no adequate compensation. In the case we find that the Court has not taken the due care. The order has been passed ex parte. There was no expediency in the case to warrant such a step. There could not be any immediate danger to the property as it consisted of mostly immovable propery, and if there was any apprehension that the property would be transferred, an injunction could be passed restraining the Defendants. We feel that the lower Court has not acted justly and considered the underlying principles for the appointment of a Receiver. The whole judgment is based on this assumption that Plaintiff is an old woman and Defendants are in large numbers, and as the property is enormous and Defendants admit that it is not managed by any one person but is managed in consultation with all the Defendants, it is not possible that management by the advice and with the help of so many persons could be satisfactory and feasible and Plaintiff would not only be deprived of the fruits of the decree, but such a management would result in more waste. We fail to understand this reasoning. To our minds, the fact that management is conducted by the advice of all the Defendants is more convenient and satisfactory. Further, it is remarked in the judgment that the argument of the Plaintiff is that Defendents are not dependent on these properties alone, they are possessed of sufficient means and they had no interest in the property in the lifetime of the deceased and have taken possession only after his death; all these are sufficient to appoint a Receiver. We fail to understand this reasoning also. When it is admitted that Defendants are possessed of some other means than the disputed property, no question of running away or committing waste arises at all. The fact that Defendants got into possession after the death of the deceased does not become material for determining this question.

It is argued on behalf of the Defendants that if the Plaintiff established her relationship she would at the most be entitled to one fourth share in the property, while if the relationship of the Defendants is established they would be entitled to three fourths share which fact also did not warrant dispossession. As we have discussed above, there is no question of waste, and Defendants, are in possession, which cannot be disturbed unless some irreparable mischief is apprehended which has not been shown. So the appointment of a Receiver, cannot be said to be "just and convenient". As discussed above, the facts do not justify the appointment of a Receiver, but when the plaintiff allege''s that some properties are hers and she shows an apprehension of transfer, her rights have to be safeguarded and property preserved, for, if this is not done it may place her in an embarrassing position in case she establishes her title. But it does not follow from this that the appointment of a Receiver would be the only remedy for this. In most cases, it has been held that the interests of the party can well be safeguarded by passing an injunction against the Defendants. To our mind this seems to be not only just but convenient, and we feel that instead of appointing a Receiver, Defendants should be restrained from alienating or in any way encumbering the suit property. We, therefore, allow this appeal, set aside the judgment of the lower Court, and order restraining the Defendants from alienating or in any way encumbering the suit property with a further direction that the Defendants should submit regular accounts every three months before the trial Court, and if at a later stage the Court thinks that Defendants have committed any default, the Court may pass necessary orders after taking into consideration all the facts.

Having regard to the facts of the case, we do not wish to pass any order regarding costs.