Rukmani Devi and Others vs R.M. Lakshmandoss

Srinivasan, J.—These two appeals arise out of an order appointing the defendant in the suit as Receiver till the disposal of the suit. The

plaintiffs are the sisters of the defendant. According to the plaintiffs, the properties described in Schedule A belong to their father and on his death,

they devolved on them as well as the defendant. The father died on 15.3.1982 at Madras. The properties described in Schedule B are stated to

belong to the mother of the parties. She died on 9.11.1991. There also the plaintiffs claim that they are entitled to equal share. Hence, the prayer in

the suit is for partition and separate possession of plaint Schedule properties and allot 1/6 share in all the properties to each of them.

The defendant contests the same by putting forward a will in his favour by his father with regard to the A Schedule properties. With regard to

the C Schedule properties the defendant claims that he is entitled to 2/7 share while the plaintiffs are each entitled to only 1/7 shares.

The plaintiffs applied for appointment of a Receiver. The only averment in support of the petition for appointment of Receiver is that the

defendant was collecting the income from the properties before the death of the parents and he is continuing to collect the entire income after the

death. He is not entitled to the entire income as he is not the absolute owner and if the defendant is allowed to collect the rents, he will take away

all the income and would deprive the plaintiffs of their due share. Only on that footing the prayer for appointment of Receiver was made. In the

counter-affidavit, the defendant has stated that with regard to the B Schedule properties, he has been depositing from April 1992, 5/7th share of

the collections into the joint bank account of the plaintiffs and that they are aware of the same. He has also stated that for the financial year ending

31.3.1993, he deposited a sum of Rs. 81,664 to their account.

The said fact of deposit in the plaintiffs'' account is admitted by the plaintiffs. Yet the learned Judge has appointed the defendant as a Receiver to

be in management of the property as such till the disposal of the suit. Aggrieved by the said order, the plaintiffs have preferred an Appeal O.S.A.

No. 43 of 1994 stating that a third party Receiver should have been appointed. The defendant has preferred O.S.A. No. 258 of 1994 questioning

the appointment of Receiver. According to the defendant, there is no allegation at all of waste or damage to the property and in a partition suit, in

the absence of such an allegation, no Receiver shall be appointed.

Learned Counsel for the plaintiffs contends that if in a suit for partition between co-owners if one of the parties excludes the possession of others

and enjoys the entire property, that is a good ground for appointment of Receiver. He places reliance on the judgment of a Division Bench of Patna

High Court in Kamal Chaudhary and Another Vs. Rajendra Chaudhary and Others, . The Bench said that in a partition suit when one co-owner

occupies the whole property and excludes the other co-owners from the shares of rents and profits of the property, a case of appointment of

Receiver is made out although no waste or mismanagement by the other co-owners in possession is proved. The Bench relied upon the Judgment

of a single Judge in Nihalchand L. Jai Narain and Others Vs. Ram Niwas Munna Lal and Others, . But that ease was one of partnership. One

partner excluded another from the management of partnership affairs. The court held that a case was made out for appointment of Receiver. That

reasoning cannot be accepted as applicable to a suit for partition among co-owners. We do not agree with the view expressed by the Patna High

Court in the above case.

In this case, admittedly, the defendant is entitled to 1/6 share according to the plaintiffs. Though the defendant claims that he is entitled to entire

share of the A Schedule property and 2/7th share in C Schedule properties, the admitted case of the plaintiffs is that the defendant is entitled to

1/6th share which will be sufficient security for the share of the plaintiffs in the income from the properties. Apart from that, the crucial fact is that

the defendant has been depositing in the joint account of the plaintiffs 5/7th share of the income from C Schedule properties. In such

circumstances, there is no warrant for appointing any Receiver as there is no averment at all to the effect that the property is sought to be wasted

or damaged. There is no other circumstance set out by the plaintiffs in their application for appointment of Receiver.

Insofar as our court is concerned, it has always been the uniform view that no Receiver shall be appointed in a partition suit unless there is a case

of damage or waste to the properties. In Kalappatti Eravamannattil Ithamma Maruvalamma''s son Krishnan and Another Vs. Thankurisai

Puliyankalath Koma Maruvalamma''s daughter Wani Maruvalamma and Others, , it was held that in the absence of proof of special circumstances

such as waste or mismanagement by the Karnavan, or a reasonable apprehension of the same, or his refusal to maintain some of the members, the

mere institution of a suit for partition in favour of the parties is no ground for the appointment of Receiver for such properties. The court has

discussed the matter in detail and given sufficient reasons for laying down that proposition. This has been followed in several other cases. The

principle was applied in Venkata Achyuta Rao v. Srinivasaswami AIR 1948 Mad. 396. by a Division Bench of this Court.

Hence, we hold that there is no necessity in this case to appoint the defendant as a Receiver. The order of the learned single Judge is set aside.

However, the defendant shall file a list of tenants occupying the properties in Schedule A and C of the suit properties, with the rent payable by

them, on or before 30.11.1994 after furnishing a copy thereof to the counsel for the plaintiffs. The defendant shall also continue to deposit 5/7

share of the rental income from the C Schedule property in the joint account of the plaintiffs as he has been doing till now. The defendant shall file a

statement of accounts once in six months after giving a copy thereof to the counsel for the plaintiffs in this Court on the Original Side. The first of

such statements shall be filed on or before 10th July, 1995. The next statement must be filed on or before 10th July, 1996. Similarly, the further

statements shall be filed once in six months. Besides, the defendant shall file on consolidated statement of account for the period commencing from

28.4.1992 to 31.12.1994 on or before 23.1.1995.

O.S.A. No. 43 of 1994 is dismissed. O.S.A. No. 258 of 1994 is allowed. All the directions given by the learned Judge to the defendant as

Receiver are vacated.