Jambagavalli Ammal vs Govindaraja Kandlar

Ramaprasada Rao, C.J.—This appeal directed against the order of Paul who, while setting aside the order of the learned Subordinate Judge

of Kumbakonam, directed that the respondents do continue in possession of the proper ties and held that no case had been made for the

appointment of a receiver which would result In the dispossession of the properties from the possession of the respondents. In an elaborate

judgment, the learned Subordinate Judge came to the conclusion that, as there were rival claims an to possession of the properties between the

appellant, who is rightfully entitled to them under the personal law, and the respondents who claim such a right only through two Wills Executed by

the husband of the appellant, in order to end the controversy, it would be in the interests of all parties concerned and Above all it is just and

convenient that the properties are in custodia legis through a receiver appointed by, the court. Paul J. held otherwise.

One Muthusami died on 19-9-1976, leaving behind him his widow, the appellant, who was the plaintiff in the action. He left behind several

properties. The plaintiff''s case was that though the properties stood in the name of Muthuswami they are her properties as tier ''father, who was

affluent purchased the said properties in the name of the son-in-law and that she was entitled to all those properties in such a capacity. In the

alternative, she pleaded that as the wife of Muthusami she was the Class 1 heir entitled to possession of such properties which stood in the name

''of Muthuswami. Defendants 1 and 2 are the stepbrother''s son and grandson of Muthusami. The conjoint case of the defendants appears to be

that they are the legatees expressed to be so under the two registered Wills executed by Muthuswami some years before his death and that they

were in possession thereof pursuant to that status accredited to them by Muthuswami not only when he was alive but also because of his intentions,

which are to be gathered from the two, wills referred to. The appellant''s case is that Muthuswami could not have executed such Wills and the

serious controversy between the parties apparently in whether those two Wills are true, valid and genuine and executed by Muthuswami as

contended by defendants 1 and 2. This is a very serious contention which has to be adjudicated in the course of trial. But for the Wills, defendants

1 and 2 would not be entitled to the properties or to possess them. Realising this peculiar position, defendants 1 and 2 would say that even during

the lifetime of Muthuswami, they were inducted into the properties and they continued to be in possession thereof after the death of Muthuswami

pursuant to the above said Wills. In answer to this, the plaintiff-appellant would say that as Muthuswami was not enjoying good health, he asked

defendants 1 and 2 to look after the properties as his representatives or attorneys and not with the intention of inducting them into the properties

and contemporaneously vesting in them the right to possess them after his death. Here again, there is a controversy as to how and in what manner

and in what circumstances defendants 1 and 2 entered into possession of the suit properties. It is in the background of such facts, the order of Paul

J. has been appealed against by the appellant, who seeks for the restoration of the order of the learned subordinate Judge, who appointed an

advocate on the panel of receivers to take charge of the suit Properties pending disposal of the suit.

Mr. Para saran, learned counsel for the appellant, would say that this is a fit case where in a receiver has to be appointed under Order 40, Rule

1 C. P. C, not only for the purpose of the preservation of the suit properties but also for the avoidance of any apprehension on the part of the

appellant that the properties are likely to, be wasted or mismanaged in the course of, the hearing of the suit. Apart from mere, apprehensions,

The contentions of the appellant cannot be lightly brushed aside as mere surmise pretences. On the other hand, Mr. Sridevan, would say that as

defendants 1 and 2 were looking after the properties during the lifetime of Muthuswami and as there are two registered wills said to have been

executed by Muthuswami when he was alive and as, in those circumstances, they are entitled to be in possession of these properties, their factual

possession as on date should not be disturbed, and in any event, they may be appointed as receivers under Order 40, Rule 1 C. P. C.

In a case which arises under Order 40, Rule 1 C. P. C., the primary thing which has to be looked into by a court before the wishes of the

parties are acceded to is to see how best the suit properties could be preserved without being wasted. The responsibility in courts becomes all the

more greater if there is a race as between the two competing parties to possess the suit properties, In the instant case, the widow is claiming

possession in her own right under the Hindu Succession Act. The defendants are claiming such possession, under the Succession Act as legatees

under the Wills. These are matters which have to be gone into and adjudicated upon finally after the trial court enters on a trial of the suit, hears

parties, peruses the documents and renders its ultimate decision thereon, Till then it is imperative for courts to see that the suit properties, over

which such conflicting claims are projected, are not only preserved but are kept without being wasted or without any prejudice, being caused to

any one of the parties to the litigation by any overt or covert act on the part of the other party to it. It is only to create a harmony and not to

ferment disharmony that the intendment of Order 40, Rule 1 C. P. C. should be perpetrated. If the primary intention is to keep such harmony

between the parties, then it would be necessary to disturb the possession of one of the parties to the suit over the suit properties and vest such

possession in an independent body so as to safeguard the interest of all parties concerned. In view of the admitted controversy as detailed by us in

the earlier portion of our order, we are unable to agree with Paul J. that this is not a case in which the appellant was only pleading her case to

achieve her ends. But she was trying to impress on the Court that the properties should be preserved during the pendency of the suit, so that the

rights of the contending parties may be finally adjudicated upon on merits and thereafter possession is secured by the party declared to be so

entitled to it. We, therefore, feel that it is just and convenient that the suit properties should be with a third party receiver nominated by the trial

Court and he shall be the receiver in charge of the suit properties. He shall, of course, take directions from the trial Court for the purpose of

managing the properties and for doing such of the things as are necessary for the Preservation of the same for the benefit of all concerned. The

appeal is allowed and the order of the Sub judge restored.

As the controversy is between the widow and the step-brother''s son and grandson of Muthuswami and as it ought to be settled as early as

possible. We are of the view that the trial Court should give preference to this suit. For this purpose, the trial court shall list the suit immediately

after the summer vacation, to wit, in June 1979 and thereafter take it up from day to day and complete the trial.

The appeal is allowed and there will be no order as to costs,

Appeal allowed.