Prakash vs Arun Sanjayan

T.R. Ramachandran Nair, J.—In F.A.O. No. 147/2014, the order passed in I.A. No. 519/2014 in O.S. No. 24/2014 of the Sub Court, Attingal is challenged and in F.A.O. Nos. 151/2014 and 152/2014, the common order passed in I.A. Nos. 584/2014 and 595/2014 is under challenge. By the said order, the court below has appointed a party receiver to manage the properties. As per the order in I.A. No. 519/2014 the temporary injunction sought by the appellant/plaintiff has been denied.

We heard learned counsel for the appellant Shri M. Rajendran Nair and learned counsel for the respondents Shri G.S. Reghunath.

The appellant''s case, going by the plaint, is that plaint A and B schedule properties are to be partitioned by metes and bounds and one half share has to be allotted to the plaintiff. He is also seeking a prohibitory injunction restraining defendants 2 to 5 from trespassing into the plaint schedule properties, committing waste therein and from causing any obstruction to the textile business being conducted in plaint B schedule property.

The first defendant is the sister of the plaintiff who is not a party in these appeals. Plaint A schedule properties belonged to their mother Sakunthala Amma. After her death, the properties included in plaint A schedule devolved on the plaintiff and the first defendant as co-owners. Plaint B schedule property belonged to Shri Sivan Pillai, the step father of the plaintiff and first defendant. After the death of the plaintiff''s father Vasudevan Pillai who is the brother of Sivan Pillai, Shri Sivan Pillai legally married Smt. Sakunthala Amma and the plaintiff and the first defendant are his adopted children. They were residing together in A.S. Mandiram, Punnamoodu, Varkala. After the death of Shri Sivan Pillai who died intestate, the properties devolved upon his wife Sakunthala Amma and through her devolved upon the plaintiff and the first defendant, who are the only legal heirs to inherit the assets of the deceased.

It is also alleged in paragraph 4 of the plaint that the textile shop functioning in plaint B schedule property for the last 25 years, was being managed by the plaintiff and a licence has been obtained in the name of the step father Shri Sivan Pillai. It is further alleged that the plaintiff and the first defendant are entitled to get one half share each in the plaint schedule properties. The first defendant and her henchmen who are the other defendants, tried to trespass into the shop on 5.3.2014 and to drive away the plaintiff and the staff members.

The defendants, in their detailed objection to the application for injunction contended that the averments in the plaint are totally incorrect. The legal heirs of deceased Sivan Pillai are his sister Smt. Savithri Amma and the children of his deceased brothers and sisters. The plaintiff is the son of one of his brothers, viz. Shri Vasudevan Pillai. Shri Sivan Pillai had three brothers and three sisters and the plaintiff has only one share. They have denied the allegation that the plaintiff is his adopted son. It is submitted that the plaintiff has been residing away in another building and not in A.S. Mandiram. The textile shop was being conducted by Shri Sivan Pillai himself and the Manager of the textile shop is the second defendant who is the son-in-law of Shri Sivan Pillai''s sister. He has been conducting it and has been keeping the key of the shop. The fourth counter petitioner is a sales assistant who has been working in the shop for the last 25 years. It is submitted that the plaintiff, after the death of Shri Sivan Pillai, has been trying to get the properties into his possession and after breaking open the shop, he has filed the suit and the emergent commission was appointed without notice, to support his case that he has been doing business there. It is also stated that the attempt is to get the textile shop under his command. He was never allowed by Shri Sivan Pillai to reside in the building "A.S. Mandiram".

The claim that deceased Sakunthala Amma was legally married to Shri Sivan Pillai, has been denied. She died on 21.3.2012 as evident from the death certificate produced. Shri Sivan Pillai died only on 18.2.2014 and therefore the inheritance claimed through the mother is clearly unsupportable. The plaintiff has never conducted "A.S. Textiles" and he was living abroad till recently. The third counter petitioner is also a co-owner who is the son of Sivan Pillai''s sister Smt. Savithri Amma and nothing is mentioned about this fact in the plaint. It is also submitted that all the legal heirs have not been impleaded in the suit.

Learned counsel for the appellant Shri Rajendran Nair submitted that the appellant has been conducting the business as evident from the commission report. It is submitted that the court below went wrong in not granting an order of injunction. It is further submitted that the evidence adduced by the plaintiff should have been properly considered by the court below. It is also submitted by the learned counsel that the court should have appointed the appellant also as joint receiver, since the establishment being a textile shop, unless he is appointed as joint receiver, the entire details of business will not be available for him.

Shri G.S. Reghunath, learned counsel for the respondents submitted that the court below has found that the plaintiff has suppressed material aspects and there is no cause for granting an injunction. It is submitted that the receiver petition filed by the third respondent herein has been allowed and the court itself has appointed him as receiver as he is also a co-owner even though he has not specifically asked himself to be appointed as a receiver. It is submitted that no interference is called for on both the orders.

Learned counsel for the respondents reiterated the case pleaded in the objections. It is submitted that as far as the first defendant in the suit is concerned, she is the sister of the plaintiff and as regards plaint A schedule properties, both of them are the legal heirs and there is no basis for impleading her in the party array in the suit. The plaintiff has chosen to implead second and fourth counter petitioners who are employees in the establishment and they have been impleaded as defendants describing them as outsiders only to get an order of injunction. In this context, learned counsel relied upon the documents produced along with the objection filed in the injunction application.

It is submitted that since the plaintiff''s mother pre-deceased Shri Sivan Pillai, the claim that the plaintiff inherited the property through his mother is totally unsupportable. He had not adopted the plaintiff as a son also. Therefore, he will have only a share along with the other legal heirs who are the children of the sisters and brothers of Shri Sivan Pillai. It is submitted that the death certificates produced by the respondents will prove the respective dates of death of Shri Sivan Pillai and the mother of the plaintiff. Learned counsel submitted that Ext. B4 will show that the fourth counter petitioner before the court below who is the fourth respondent herein, is a sales assistant in the shop. The same is the identity card issued by the Kerala Shops and Commercial Establishments Welfare Board in his favour. Ext. B6 is the death certificate showing the date of death of Smt. Sakunthala Amma as 21.3.2012 who died before the death of Shri Sivan Pillai, whose death certificate is also produced in the case as Ext. B1. Another document produced by the respondents is the Aadhar Card issued in favour of the appellant, Ext. B5 wherein his address is different from the address shown in the plaint. Therein he is shown as son of Vasudevan Pillai and not as son of Sivan Pillai. The same is issued on 22.2.2014 prior to the date of suit. It is submitted that the shop was being run by Shri Sivan Pillai and he was residing in A.S. Mandiram. There is no legal marriage between the plaintiff''s mother and Sivan Pillai. It is submitted by the learned counsel for the respondents that the court below has found that all the legal heirs have not been impleaded and the plaintiff has approached the court without clean hands and suppressing material aspects. It is therefore submitted that both the orders are discretionary in nature and no interference is called for. Learned counsel also relied upon the decision of the Apex Court in Seema Arshad Zaheer and Others Vs. Municipal Corpn. of Greater Mumbai and Others, in this context.

In reply, Shri M. Rajendran Nair relied upon the decision of a learned Single Judge of this Court in Mary Vs. Biju P. Sebastian, to contend for the position that for appointment of a receiver, there should be strong and cogent grounds and those principles alone will apply. It is submitted that even if it is assumed that the mother died earlier than Shri Sivan Pillai, that will not defeat his claim. The defects in the plaint have been cured also.

We have considered the rival submissions.

Plaint B schedule properties include the residential house and another building which were in the ownership of the deceased Shri Sivan Pillai and the textile shop. Both sides submitted that in the textile shop heavy business was being conducted and goods worth large amounts are kept therein also.

While considering the prayer for grant of temporary injunction, the court below has observed in the order passed in I.A. No. 147/2014 that the plaintiff has not produced any documents to show that late Shri Sivan Pillai adopted the plaintiff and the first defendant. Ext. B5, copy of Aadhar Card will show that the plaintiff is the son of Vasudevan Pillai. Thus, the prima facie evidence is against him and Exts. A1 to A14 also will not help him to show that he is the adopted son of Shri Sivan Pillai and in the absence of any evidence to show that the plaintiff and the first defendant are the adopted children of Shri Sivan Pillai, it cannot be found that they are the only legal heirs of late Shri Sivan Pillai.

In paragraph 15 of the impugned order, it has been found that the mother of the plaintiff died on 21.3.2012 as evident from Ext. B1 death certificate and Shri Sivan Pillai died only on 18.2014, as evident from Ext. B6. It is therefore found that Sakunthala Amma, the mother of the plaintiff pre-deceased Shri Sivan Pillai and therefore the contention of the appellant that on the death of Shri Sivan Pillai, the property devolved upon Smt. Sakunthala Amma and through her, the plaintiff and the first defendant are entitled to inhere it, is absolutely false. In paragraph 16 it is also found that all the legal heirs have not been impleaded and there are 12 other persons as the children of the deceased brothers and sisters of Shri Sivan Pillai. Accordingly, it is found that necessary parties have not been impleaded and the plaintiff approached the court with unclean hands suppressing all the material facts which will disentitle him an order of injunction.

We are of the view that as far as the above aspect are concerned, the appellant is not entitled to succeed in F.A.O. No. 147/2014. The documents discussed by the court below and relied upon by the learned counsel for the respondents herein will show that the plaintiff''s mother predeceased Shri Sivan Pillai. Therefore, the claim that the properties of Shri Sivan Pillai devolved on his mother and through his mother to him and to his sister cannot be accepted. It means that his plea on the basis of the same is not at all sustainable, at least prima facie. With regard to the plea of adoption also, there is no prima facie evidence in his favour. Therefore, the finding on that aspect by the court below calls for no interference. He has not impleaded proper parties in the suit, even though now it is submitted that during the pendency of these appeals the remaining legal heirs have been impleaded by an order of the court. Whatever that be, as far as the discretionary relief of injunction is concerned, the fact that he has approached the court without impleading necessary parties in the array of parties, will be sufficient to reject the application.

Learned counsel for the appellant Shri Rajendran Nair submitted that a wrong method was adopted by the court below, in that a party receiver has been appointed even though the applicants in I.A. No. 584/2014 wanted only a court receiver to be appointed. It is submitted that the plaintiff had also filed I.A. No. 595/2014 for appointment as receiver which should have been properly considered.

We find from the common order appointing a receiver that the court has considered the fact that the fourth defendant who is appointed as a receiver, is a co-owner of the property and that a party receiver is better than an Advocate receiver, so that he can do the business with the assistance of the earlier staff and accordingly he was appointed. True that the keys have been ordered to be obtained by the receiver from the Advocate Commissioner. Shri Rajendran Nair, learned counsel for the appellant has taken objection to the said course adopted by the court below in placing the keys to the Commissioner, as according to him, the keys were with the plaintiff. But herein, according to the learned counsel for the respondents Shri G.S. Reghunath, the plaintiff broke open the shop and therefore the mention made by the Advocate Commissioner in his report which was a commission taken without notice to the respondents, that the plaintiff is conducting the business, is totally incorrect. Now that the plaintiff has been found to be not entitled to an order of temporary injunction on cogent materials, according to us, he cannot also plead that he should be appointed as joint receiver.

It is a case where the textile shop was being conducted by Shri Sivan Pillai. The party receiver now appointed is also a co-owner. The second respondent herein who is also a relative of late Shri Sivan Pillai, is stated to be the Manager of the shop and the fourth counter petitioner is also another staff member. A joint receivership, especially to conduct a textile business, in the light of the strong difference of opinion between the parties, will not work out for the benefit of the estate of the deceased. The court has issued necessary directions in the matter while appointing the receiver. He has been directed to collect rent from the tenanted premises and to take all other yield from plaint B schedule properties and to deposit the same before the court after deducting the expenses. He is also authorised to do all necessary acts for the protection and improvement of plaint B schedule properties and to submit a monthly statement of accounts regarding the income and expenditure. It is also clarified in the order that he is liable to be removed from the post of receiver if he makes default in complying with the order. We are of the view that the same will safeguard the interest of all parties concerned.

The principles discussed in Seema Arshad Zaheer and Others Vs. Municipal Corpn. of Greater Mumbai and Others, , will show that the Apex Court was of the view that temporary injunction being an equitable relief, the discretion to grant such relief will be exercised only when the plaintiff''s conduct is free from blame and he approaches the court with clean hands. The findings rendered by the court below therefore will have to be understood in the light of the above principles also.

In Mary Vs. Biju P. Sebastian, relied upon by the learned counsel for the appellant Shri Rajendran Nair, a learned Single Judge of this Court has discussed in detail the power to appoint a receiver and the circumstances required for appointment of receiver also. It has been held that a "receiver cannot be appointed merely because it is expedient or convenient to one of the parties; instead, it must be "just and convenient" meaning thereby that it is just and convenient to both parties.................... A well founded fear that the property in question will be dissipated or that other irreparable mischief may be done unless the court gives its protection is a good ground to appoint a receiver."

Herein, the court below has adopted the method after the plaintiff failed to get an interim order of injunction. The textile shop will have to be run properly and other properties will have to be managed also. In view of the fact that the plaintiff has approached the court without impleading necessary parties also, sufficient arrangements had to be made by the court which cannot be faulted. We are of the view that the relevant principles have been gone into by the court while appointing the party receiver. It cannot be said that in refusing to grant injunction and in appointing the receiver, the discretion has been exercised improperly. We find no reason to interfere with the orders impugned and the appeals are dismissed accordingly.

We also observe that the court below will explore the possibility of settlement of all disputes through mediation, for which the parties will cooperate. No costs.