M. Ismayil vs M.A. Kamarudeen

P. Bhavadasan, J.—Aggrieved by that portion of the order dated 16.10.2014 in CMA No. 67/2014 whereby after finding that the petitioners are not entitled to the relief of temporary injunction, the court below directed appointment of a receiver to preserve the trust property, the respondents before the court below have come up with this original petition.

The matter relates to administration and management of a Madrasa. One Mohammed Shaharani Mussliyar created a trust and as per the trust deed, the management of the trust was entrusted with its founder. The deed contains elaborate provisions regarding the management of the trust during and after the life time of the founder of the trust. It is not in dispute that the founder of the trust passed away in 1993. Thereafter the petitioners before this Court came into possession and management of the trust property allegedly as per the provisions of the trust deed. The respondents before this Court laid a suit on the ground that after the death of the founder of the trust, since the other clauses in the trust deed had not been brought into force, going by clause 6 of the deed, they are entitled to be in possession and management of the trust property and therefore, the petitioners before this Court may be restrained from interfering with the administration and management of the property.

I.A. No. 1418/2014 was filed by the respondents herein before the trial court for interim injunction. The said petition was resisted by the petitioners by pointing out that even assuming that the respondents before this Court are entitled to the relief, that is only under certain circumstances as per deed and those circumstances have not come into existence. It is also pointed out that since the death of the founder, they have been in absolute possession, management and administration of Madrasa and its properties and there is no reason to interfere with their possession.

The court below found that even though the respondents before this Court claim to be in absolute possession of the trust property, they were not successful in establishing how and when they came into possession of the property and their right to have the petitioners before this Court restrained from interfering with the possession of the trust property. The result was that the application was dismissed by the trial court. On appeal by the plaintiffs in the suit, the appellate court concurred with the trial court''s finding. But strangely thereafter the court went on to observe that it is the duty of the court to protect the interest of the trustees and trust properties and therefore issued a direction to the trial court that in case an application is filed, a receiver shall be appointed.

Sri C. Khalid, learned counsel appearing for the petitioners pointed out that so long as it is not shown that the petitioners are usurpers, receiver could not have been appointed more so when the right claimed by the respondents herein are not established and the court is not satisfied that they were in actual possession of the property. Under these circumstances the court below ought not to have directed appointment of a receiver.

Learned counsel appearing for the respondents contended that the petitioners before this Court have no right to manage the trust property as they are not appointed by the trust deed and therefore they are not more than usurpers. It is in that context, the court below had directed appointment of a receiver.

The fact remains that even though the respondents before this Court claimed to have been in possession, management and administration of the trust property, both the courts found that they have failed to establish their right as of now. The trust deed was made available for perusal.

True, respondents are entitled to possession of the trust property. But that is under certain circumstances as per the deed. As to whether the founder of the trust entrusted them with the possession of the trust property is a matter yet to be established. But one fact is clear. After the death of the founder in 1993, the petitioners before this Court have been in possession of the property.

The suit is of the year 2014. For the last 21 years, the property has been in possession of the petitioners. If the respondents before this Court had any case of mismanagement by the present holders, they should have alleged it and produce some documents in support of their plea. Anyhow, there is no finding by either of the courts below that there is any mismanagement by the petitioners. This Court has not omitted to note the fact that the lower appellate court has indicated that there is nothing as of now to show that the petitioners before this Court were entitled to possession and management of the property. But that is a different matter. The fact that they have been in possession of the property from the date of death of the founder in 1993 is not in dispute. During all these period, the inaction on the part of the plaintiffs in the suit causes suspicion. The contention that they were unaware of the trust deed cannot be accepted at this stage.

Whatever that be, having found that the petitioners are in actual possession of the property, since no maladministration or mismanagement or pilferation of the assets of the Madrasa is prima facie established, there is no reason as to why they should be removed from the office and receiver appointed. One should remember that appointment of receiver is very harsh since it has the effect of dispossessing a person and unless there are compelling reasons, it may not be proper to appoint a receiver. Applying the test for appointment of receiver, the present case does not pass the test. Even assuming that the court had any apprehension regarding the management, it would have been proper to appoint the petitioners themselves as receivers and the decision of the court to remove them from the office without any justification cannot be countenanced.

For the above reasons, this original petition is allowed and that portion of the order directing appointment of receiver is set aside and it is directed that the petitioners shall act as receivers and shall submit the accounts periodically to the trial court and they shall function under the control and supervision of the trial court.