Lt. Col. Kuldip Chandra Shanu vs Mrs. Cecillia Gertrude Marry Hall

Chet Ram Thakur, J.—These are three appeals filed by Lt. Col. Kuldip Chandra against three different orders passed by the Senior Subordinate Judge, Mahasu, in three different applications in a civil suit filed by him against Mrs. Cecillia Gertrude Marry Hall Defendant claiming partition of movable and immovable properties on the basis that he was the joint owner of one-half of the same.

The Plaintiff filed an application purporting to be under Order 40, Rule 1 read with Order 39, Rules 1 and 2 and Section 151, Code of Civil Procedure, for appointment of a receiver to arrange for disposal of the fruit crop and to deposit the income thereof in Court. This application was opposed by the Defendant contending that the Plaintiff was out of possession of the suit property and she was in exclusive possession and management of the same. Further that the Plaintiff had no right in the disputed property. The learned Senior Subordinate Judge vide his order, dated 16th October, 1970, dismissed the application.

The Plaintiff filed another application also purporting to be under Order 39, Rules 1 and 2 read with Section 151, Code of Civil Procedure. In that application it was averred that the Petitioner was the owner of one-half of the properties, both movable and immovable, with the Defendant and that the complete list of fixtures, furniture, cutlery, crockery, library and all other personal effects was believed by the Plaintiff to be with the Grindlays Bank, Simla, and the Plaintiff had summoned the Manager of the said bank to produce the list concerned and other documents believed to be with the said Bank. That the Plaintiff had learnt that there was no list of the above mentioned, movable property, with the Grindlays Bank. It was further averred in that application that a complete list of all movable property lying in the Casolini Estate was got prepared by Mr. Peter Gallop and that the same was in possession of the Defendant who has not produced it in the Court so far in spite of a notice under Order 12, Rule 8, Code of Civil Procedure, having been duly served on her. He reasonably apprehended that the Defendant who intended to harm the interests of the Plaintiff will remove and dispose of the movable property and if she does so it will cause great loss to the Plaintiff and will give cause to further unnecessary litigation between the parties. If no complete list is prepared there will be no check on the Defendant, if she will dispose of any part of the disputed properties during the pendency of the suit. That way it will not be possible to compensate the Plaintiff by awarding damages. The Plaintiff, therefore, prayed that a local Commissioner may be appointed to visit the estate and to prepare the list of all movable property lying in ''Casolini Estate'' in the presence of the parties and of such property which the parties may state to be in existence and not found there and to give estimate and value of all such property and present it in Court and that the Defendant may be restrained from disposing of or removing from ''Casalini Estate'' in any manner, any part of movable property during the pendency of the suit. This application was also opposed by the Defendant. According to her the furniture, etc. had never been a subject-matter of sale, nor the Plaintiff was entitled to the same and that the application as filed was not competent or maintainable. This application was also dismissed by the Court. vide its order, dated 16th October, 1970.

The Plaintiff had also filed another application purporting to be under Order 39, Rules 1 and 2 read with Section 151, Code of Civil Procedure, for issue of temporary injunction. As he was a co-owner of the property, therefore, he had kept his servant in the property who was residing in the servant''s quarters of Casalini Estate to look after his orchard, land and houses, that the Defendant had started personally and through her Mali threatening his servants and was stopping him from working in the orchard with intent to dispossess him, and that if she was not restrained from her illegal acts then it would cause irreparable loss to him which would not be compensated by awarding damages and there will be multiplicity of proceedings and litigation. That he had a prima facie case, the balance of convenience is on his side and that in the interest of justice it was necessary to maintain the status quo during the pendency of the suit. This application was also opposed with the result that the learned Senior Subordinate Judge dismissed the same also.

These three orders have been challenged in appeals before this Court and I propose to dispose of all these three appeals by a single judgment.

F.A.O. No. 4 of 1971, whereby the order of dismissal of the application for issue of a temporary injunction has been challenged, has not been pressed. This appeal, therefore, stands dismissed.

Next I take up Appeal No. F.A.O. 6 of 1971. This appeal is directed against the order dismissing the application for appointment of a receiver. Order 40, Rule 1, Code of Civil Procedure, gives power to the Court to appoint a receiver. The Court may appoint a receiver when it finds that it is just and convenient for the protection or preservation of the property.

The learned Counsel for the Appellant has argued that this is a fit case where the Court should order the appointment of a receiver to protect and preserve the interest of the Plaintiff. He has relied on a number of authorities to show as to what are the grounds which the Court should take into consideration while appointing receivers in partition cases. The learned Counsel for the Respondent has contended that the Defendant is in possession and the title of the Plaintiff is still in dispute and as such a receiver should not be appointed in such a case. He too has relied on a number of authorities to show as to in what circumstances a Court should exercise this discretionary power of appointing a receiver.

First I will deal with the authorities cited by the counsel for the Appellant in support of his contentions. In Basant Ram v. Dasondhi Mal and Ors. (A.I.R. 1929 Laho 497) the Petitioner brought a suit against his three brothers and his father claiming 1/5th share in the property stated to be joint family property by immediate partition. The suit was contested and the subordinate Court held that the Plaintiff was entitld to 1/5th share in the joint family property but that he could not enforce an actual partition during the life time of his father. Against this two appeals were filed. During the pendency of the appeals the father died and the Plaintiff became entitled to a larger share and also could claim partition. It was held that on the findings of the trial court the Plaintiff, therefore, was entitled to immediate partition. It was held further that in all cases where the property is in the hands of one co-sharer and the share of the profit is withheld from the other, there is sufficient reason for appointing a receiver. In Suprasanna Roy v. Upendra Narayan Roy (A.I.R. 1914 Cal 439 ) also the Plaintiff and the Defendant were brothers and were the owners of the joint property of a considerable value and extent and the title of the Plaintiff to 1/2 share of the estate was not disputed. It was also a suit for partition. In these circumstances it was laid down that the case for the appointment of a receiver is much stronger, if a party to the partition action is in sole occupation. In Saravana Mudaliar Vs. Singaravelu Mudaliar by mother and next friend Sinnammal Achi, , which was also a suit for partition by a member of the joint family the Court laid down, that in a suit for partition the Plaintiff was entitled to as much as a half of the property, and the quarrels in the family and the conduct of the Defendant had made it impossible for him in the past during the pendeeny of the suit to get his fair share of the harvest, and it was probable that in spite of any precautions taken by the Court, the Plaintiff would not be able to secure his fair share in the income from the property so long as it remained in the hands of the Defendant and that under the circumstances an order appointing receiver to harvest existing crops was justified, though in general a receiver will not be appointed merely because a member of the family files a suit for partition. It was in view of the facts that the conduct of the Defendant which made it impossible for the Plaintiff in the past during the pendency of the suit to get his fair share of the harvest that the order appointing the receiver was made. In Nihalchand L. Jai Narain and Others Vs. Ram Niwas Munna Lal and Others, it was laid down that a discretion exercised by the trial Court in the matter of appointment of a receiver after considering the facts of the case ought not to be interfered with an appeal unless it is shown that it was improperly exercised or that the determination was contrary to law. The considerations which determined the grant or refusal rest on well known principles but no Court has been able to lay down unvarying and inflexible rules applying to all circumstances and eventualities. The facts of the actual case are of primary consideration which determine the exercise of the discretionary power. It is true that the power is exercised sparingly and with caution and circumspection where circumstances require a summary relief. A receiver is to be appointed only in a clear case and where there is necessity or occasion for the appointment. Appointment of a receiver must not be a mere weapon of coercion and the Courts do not exercise the discretionary power in the absence of a strong case. The discretion of the trial Court ought not to be disturbed where it is rested on a consideration of the facts and circumstances, bearing in mind the principles applicable. In that case one of the properties was cinema which had been running and screening pictures. The proceeds of the booking office was being realised exclusively by the Defendant, who denied that the Plaintiff was entitled to any share in the income and it was in the light of the circumstances that it was considered necessary to appoint a receiver to keep account of the daily income of the cinema and other liquid assets as it was a property of the partnership and the same had also to be safeguarded from injury or destruction.

The facts of the case in hand are that the property in question was once owned by one Lt. Col. J.N. Phelps, Who died in 1964. He had executed a will according to which the Defendant and one Mr. Peter Gallop inherited all his property in equal shares and occupied it jointly. In 1966 on Defendant''s informing the Plaintiff that Mr. Peter Gallop desired to sell his share of the property and on Plaintiff''s consenting to purchase it, the Defendant entered into a transaction of sale with Mr. Peter Gallop and purchased his share of the said property and for and on behalf of the Plaintiff. The Defendant in May, 1967 transferred the share of Mr. Peter Gallop in the properties for a sum of Rs. 21,000 in favour of the Plaintiff and then she got entered a mutation of sale with the Patwari, which was attested on 31-5-1967 by the Revenue Officer and it was by virtue of this purchase that the Plaintiff had become owner of 1/2 share of the property and that he was in joint possession thereof. In September, 1967, the parties felt it desirable to partition the said property and occupy their shares separately and in November, 1967, both the parties agreed to effect a partition of the properties and settled terms thereof. As the land had to be got demarcated by the revenue officer, therefore, the matter could not be finalised immediately. Later on the Defendant evaded to finalise the partition and the Plaintiff felt that she intends to back out from the'' terms, settled between them, regarding the partition of the said joint property. The Plaintiff requested her through registered letters to partition the properties in equal shares.

The Defendant resisted the suit pleading, inter alia, that the suit for partition was not maintainable, that the Plaintiff was out of possession of the landed property. She averred that the Plaintiff has got the mutation attested in his favour by playing a fraud on her, by making false representation that he would manage the entire property without making any charges from the Defendant, and giving her all possible help in every manner. Such misrepresentation on the part of the Plaintiff became manifest when he fraudulently got the signatures of the Defendant on a paper and eventually converted the same into an alleged partition between the parties. It was contended that the Plaintiff failed to pay the agreed price hence the agreement of sale of land and part of house in his favour stood automatically revoked. The Defendant was entitled to retain the amount already paid for the breach of contract and the suit was not maintainable. It was also denied that she had ever undertaken or actually sold any fixtures, furniture, the cutlery, crockery, library and other personal effects to the Plaintiff. The claim of the Plaintiff as such was false and illegal.

Hence from the resume of facts as given above, it would be apparent that the title of the Plaintiff to 1/2 of the property is still in dispute. No doubt the Defendant has admitted the receipt of a part of the consideration, but she has pleaded misrepresentation, fraud etc. in getting the mutation attested in his favour with regard to the property. According to her the Plaintiff was not entitled to partition for breach of performance of his part of the contract. The contract stood automatically revoked. Hence the authorities which have been relied upon by the Appellant''s learned Counsel to show that in cases of partition of joint property it is desirable that a receiver should be appointed to preserve and protect the interest of the Plaintiff in the property in case the property is in the sole occupation or possession of the Defendant, and that there is a reasonsble apprehension to the properties, assets or income of their being in danger, injured, misused or dissipated, have got no bearing on the facts of this case. In all these cases there was no dispute with regard to the share of the Plaintiffs and the parties in all the cases excepting Nihalchand''s case (supra) were brothers or members of joint family. It was in these special circumstances of the cases that it was found just and convenient to appoint receivers for the preservation of the interest of the Plaintiffs. In the case of Nihalchand (supra) it was the case of partnership and the same also had been admitted and it was, therefore, thought necessary to preserve the daily income accruing from the cinema shows and to preserve the assets etc. of the partnership from being wasted and a receiver was appointed. But in the instant case as the circumstances disclose, the title of the Plaintiff is still in dispute and the Defendant''s contention is that (1) no payment of the full sale price has been made and the mutation which has been effected was got attested under misrepresentation and fraud and that she was an utter stranger to this country and she reposed her confidence in the Plaintiff, who had represented to her that he would manage her property but he practised a fraud upon her; and (2) for non-performance of the part of contract by the Plaintiff the transaction or the agreement of sale stood revoked. Further I find from the plaint that there is no allegation made by the Plaintiff-Appellant of any wastage or of any apprehended injury to the property.

Now I will deal with the authorities cited by the counsel for the Respondent. According to T. Krishanaswamy Chetty v. C. Than-gavelu Chetty and Ors. (A.I.R. 1955 Mad 430) the court had to determine the five principles while dealing with appointment of a receiver and those five principles are:

(1) The appointment of a receiver pending a suit is a matter resting in the discretion of the Court.

(2) The Court should not appoint a receiver except upon proof by the Plaintiff that prima facie he has a very excellant chance of succeeding in the suit.

(3) Not only must the Plaintiff show a case of adverse and conflicting claims to property, but, he must show some emergency or danger or loss demanding immediate action and of his own right he must be reasonably clear and free from doubt. The element of danger is an important consideration.

(4) An order appointing a receiver will not be made where it has the effect of depriving a Defendant of a de facto possession since that might cause irreparable wrong. It would be different where the property is shown to be in medio, that is to say, in the enjoyment of no one. And

(5) The Court, on the application made for appointment of a receiver, looks to the conduct of the party who makes the application and will usually refuse to interfere unless his conduct has been free from blame.

In the instant case we are not to go into the detailed facts. The case purely rests on the letters received by the Plaintiff from the Defendant with regard to the transaction about the purchase of 1/2 share of the ''Casalini Estate'' belonging to one Mr. Peter Gallop and this is entirely for the trial Court to deal with the matter whether the case stands proved on the basis of the documents or not. The Defendant has denied the claim of the Plaintiff. The Plaintiff has not made any allegation in the plaint about any injury or wastage etc. It is only in the application that he has made such an allegation. Therefore, I am of the view that the principles as have been enunciated by the learned Judges of the Madras High Court cover the Defendant''s case inasmuch as the Plaintiff has not been able to show a case of any emergency or danger or loss demanding immediate action and about his own right which must be reasonably pleaded and free from doubt. Moreover the Defendant is at present in possession and it would have the effect of depriving her of a de facto possession.

Similarly in Ved Parkash and Others Vs. Tara Chand and Others, it has been held that the Court will not, as a general rule, appoint a receiver in suits especially where the family property consists of immovable property, but a receiver may be appointed in a suit for partition where there is a prima facie case of misappropriation by the manager of the family. Mere allegation of waste or misappropriation, however, are not enough. In the instant case the Petitioner has made allegations of waste and misappropriation in the application but no evidence has been produced.

In Bokaro and Ramgur Ltd. Vs. State of Bihar, a similar view has been reiterated that in matter of appointment of receiver of the property in dispute the Court has a wide discretion. But it will not appoint a receiver unless from the matterials brought to its notice it is satisfied that it is just and convenient to do so. Different considerations will arise in different cases, but in a case of disputed title, where the Plaintiff seeks recovery of possession the Court will appoint a receiver if it is satisfied on two matters: (1) that the title which the Plaintiff has set up is prima facie good; and (2) that the property is in danger of being wasted or dissipated or being so dealt with as to get irretrievably out of reach of the Plaintiff who is prima facie entitled to its possession. From the facts of the case, I have not been able to find out if there is such an impending danger or mismanagement of property in suit as to call for the appointment of a receiver pendente lite.

The learned Counsel had contended on the strength of Gharib Khan v. Sikandar (1902 P.R. 91 ), Dhuri Sah Vs. Kishun Prasad Sah and Others, and Hari Chand L. Sharna Mal Vs. Gordhan Das Faqir Chand Vaish and Others, that part payment of purchase money is sufficient to pass title to the purchaser and the contention of the Defendant that no full payment of the purchase money had been made nor the possession has been delivered was no ground to show that the sale had not been completed. The sale had been completed and the title had passed to the purchaser i.e. the Plaintiff as soon as he made part payment of the money and the non-delivery of the possession is not essential to pass title. There can be no dispute with the principle, but the facts of this case are distinguishable inasmuch as the Defendant has stated that the Plaintiff failed to perform the part of his contract and, therefore, the agreement of sale was revoked. It is difficult to say if there was such a condition or a clause in the agreement, which has not been produced before me and is only said to be oral. Therefore, it cannot be spelt out that the sale had become complete and the title had passed on payment of part of the purchase money by the Plaintiff to the Defendant. In fact the Defendant''s contention is that according to the conditions of the sale, the Plaintiff did not perform the part of the contract inasmuch as he defaulted in making the full payment of the sale price and, therefore, no title had passed to the purchaser i.e. the Plaintiff. So that way also the title not having passed it is still in dispute because no evidence appears to have been led on the application and this matter could have been determined by evidence only admissible on this interlocutory application but the Plaintiff does not appear to have taken any steps in that behalf.

The conclusion, therefore, that I have been able to arrive at after having gone through the authorities cited by the counsel for the parties is that the title of the property is still under dispute and there is no prima facie case made out about injury to his interest nor is there any allegation of any wastage or that it is in danger of being wasted. So for that matter the Plaintiff even if he is a joint owner is not entitled to appointment of a receiver on mere allegation of wastage, unless he actually substantiates the same ox makes out a prima facie case in his favour.

From the three applications under Order 40, Rule 1 of the Code of Civil Procedure, filed by the Plaintiff during the three successive years, one of the prayers was that the fruit season is on and that the Plaintiff would be deprived of the income from the sale of the orchard. Now that the fruit season is out, therefore, the lower court may see the desirability of appointment of a receiver during the next season for the realisation of the one-half of the income of the orchard in case by then the suit is not decided. In the light of the above observation this appeal fails.

The third appeal is F.A.O. 5/71. This is an appeal against the dismissal of an application made by the Plaintiff under Order 39 Rules 1 and 2 read with Section 151 of the Code of CPC with a prayer that a local Commissioner may be appointed to prepare the list of all movable properties lying in the ''Casalini Estate'' in the presence of the parties and of such properties as the parties may state to be in existence and not found there and to give estimate and value of all such properties and present it in Court and the Defendant may be restrained from disposing of or removing from ''Casalini Estate'' in any manner any part of the movable property during the pendency of the suit. The Defendant opposed the application in its entirety. It was contended that the movable property was never the subject-matter of sale and as such the application was not maintainable. The learned Senior Sub-Judge accepted the contention of the Defendant and dismissed the application. In this Court also it has been argued on the strength of Ram Samujh Singh v. Bikramajil Singh and Ors. (A.I.R. 1919 Oudh 208) that before a Court can pass a preliminary decree in a suit for partition of movable property belonging to a joint family of which a list has been filed by the Plaintiff, it must be determined whether those items the existence of which is denied by the Defendant do in fact exist and if so, in whose possession they are and what their value is and also whether ornaments in the possession of the ladies of the family should be included in the partition, or money allotted to the Plaintiff for providing them on his own marriage. That the court should appoint a commissioner and he may be directed to prepare a list of all the movable properties in the Casalini Estate, as also of such property, which is in the possession of the parties and which they claim as their own and other movable property which is admitted by them as the property of Casalini Estate. I am afraid if this authority can be pressed into service by the Plaintiff in his favour. It is apparent from the reading of this authority that in that case also the Plaintiff had filed lists of certain movable properties in the Court and the Defendant had denied the existence of the properties mentioned in the lists and, therefore, it was held that in regard to the movable property of which certain lists have been filed by the Plaintiff it was incumbent on the Court below to determine whether those, the existence of which was denied by the Defendants, existed and if so in whose possession they were and what was their value, It was also incumbent on it to determine whether the ornaments referred to could have been included in the partition, or whether any money could have been allotted to the Plaintiff to enable him to provide ornaments for his wife in case of his marriage. Until those points were gone into a preliminary decree for partition could not have been passed. Thus the authority itself shows that it is the bounden duty of the Plaintiff himself to furnish the list of movable properties and if the Defendant denies the existence of the same then it has got to be proved whether that property exists, if so, in whose possession it is and what is its value etc. But unless the Plaintiff files the list it is not understood how the learned Counsel wants the Court to prove a case for the Plaintiff that those were the articles which belonged to Mr. Phelps and which were bequeathed to Mrs. Cecillia Gertrude Marry Hall and Mr. Peter Gallop, and which are in their possession and out of which some have been disposed of by them and what are those articles. The Plaintiff thinks that he is absolved of his duties as soon as he files a case for partition alleging that the entire movable property belonging to Phelps was inherited under a will by Mrs. Cecillia Gertrude Marry Hall and Peter Gallop, and 1/2 share of the movable property of Peter Gallop was purchased by the Plaintiff along with the immovable property and he leaves it for the Court to find out as to what was the movable property and the Court must make out a case for him. This is not the intention of this authority which is relied on by him. The Plaintiff must himself set out a clear cut specific case in his pleadings and he cannot ask the Court to appoint the Commissioner to prepare a list without giving the particulars of the articles which were in the possession of Mr. Gallop and had been purchased by him. At present the title is under dispute, therefore, this application for preparation of list of articles lying in the ''Casalini Estate'' cannot be allowed. Therefore, this appeal also fails.

In the light of the above observations, all the three appeals fail and the lower Court is directed to proceed with the case and decide it as expeditiously as possible. If in any case it fails to dispose of the case before the fruit season of 1972, it will see the desirability of the appointment of a receiver for the realisation of the income to the extent of 1/2 share and deposit the same in the Court because in so far as the other 1/2 share is concerned there is no dispute that it belongs to Mrs. Cecillia Gertrude Marry Hall.

Parties in all the three appeals are left to bear their own costs.