Smti Kasturi Lahiri vs Amitabha Ghosh

,,,,

1) Heard Mr. D. K. Mishra, learned senior advocate, assisted by Mr. B. Prasad, the learned advocate for the appellant as well as Mr. N. Dhar, the",,,,

learned advocate, on instructions from Ms. S. Dasgupta, the learned advocate for the respondents.",,,,

2) By this appeal under Order XLIII Rule 1(s) read with Section 151 CPC, the appellant has challenged the order dated 16.11.2017 passed by the",,,,

Civil Judge, No. 2, Kamrup (Metropolitan), Guwahati in Misc.(J) case 585/2016 in T.S. No. 368/2016, by which the prayer made for appointment of",,,,

receiver under the provisions of Order XL, Rule 1 read with Section 151 CPC was dismissed.",,,,

3) The petitioner is the plaintiff in T.S. No. 368/2016, which was instituted for partition, declaration, permanent injunction and other relief(s). Along",,,,

with the suit, an application was filed under Order XXXIX Rules 1 and 2 read with Section 151 CPC for grant of ad-interim injunction, which was",,,,

registered as Misc.(J) Case No. 586/2016 and the learned trial Court by order dated 16.11.2017 was pleased to direct the respondents-defendants to,,,,

maintain status quo and restrained them from alienating or transferring the suit properties in any manner and from changing the structure, character",,,,

and nature of the suit properties. It was projected that the petitioner is the eldest daughter of respondent No.2, Smt. Ushasi Ghosh and Late Benoy",,,,

Kumar Ghosh and the respondent No.1, Sri Amitabha Ghosh, is the brother of the petitioner and the respondent No.3, Smt. Sanjukta Sharma, is the",,,,

sister of the petitioner and the respondent No.4, Smt. Rakhi Ghosh, is the wife of respondent No.1. It is projected that the father of the petitioner was",,,,

an advocate by profession, who owned various properties both movable and immovable and he was also partner of various businesses. The properties",,,,

exclusively owned by the father of the petitioner is described in Schedule A, B and C of the memo of appeal. The value of which is estimated by the",,,,

petitioner to be worth Rs.69,00,00,000.00 (Rupees Sixty nine crore only). It was projected that as the daughter and the legal heir of late Benoy Kumar",,,,

Ghosh, the petitioner was entitled to one-fourth share of the properties left behind by her father and in respect of business, the petitioner was entitled",,,,

to be inducted as a partner and/or she was entitled to her share in respect of her share out of the share of deceased father in respect of the said,,,,

business. A brief description of the properties are as follows:,,,,

a) Schedule A: Land measuring 2 katha 9.97 lecha and 18.57 lecha covered by P.P. No. 215 Dag No. 93 and 95 at B. Barooah Road, Ulubari,",,,,

Guwahati including 3 storied building where Hotel Orchid is situated.,,,,

b) Schedule B: Unregistered partnership farm i.e. M/s R.L. Ghosh and Sons, dealing in wines and spirits, arms and ammunitions and sub-distributor for",,,,

Bajaj Scooters.,,,,

c) Schedule C: Residential property measuring 1B-10L covered by P.P. No. 720 (New)/55(old), Dag 1780(new)/155(old), at Mangaldoi Town, Ward",,,,

No. 5, Mouza Chapai, District- Darrang.",,,,

d) Schedule D: Unregistered partnership farms/sole properties firms:,,,,

2) Real Estate:,,,,

2.1) Commercial Properties:,,,,

2.1.1) R/L Ghosh and son’s Land and building.,,,,

2.1.2) Hotel Shyamlee land and building.,,,,

2.1.3) Land surrounding Sanjukta Poultry and Sanjukta Feed Mill.,,,,

2.1.4) Kharupetia Shopping Complex.,,,,

2.1.5) Land (used as pond) behind R.L. Ghosh and Sons.,,,,

2.1.6) Assam type house containing workshop.,,,,

2.1.7) Assam type house used as godown.,,,,

2.1.8) Commercial land measuring 16 lechas covered by Dag No. 1460 P.P. No. 720 in Mangaldai town.,,,,

2.1.9) Commercial land measuring 1B-2K-2L covered by Dag No. 1463 P.P. No. 720 in Mangaldai town.,,,,

2.1.10) Commercial land measuring 2K-9L covered by Dag No. 1644 P.P. No. 720 in Mangaldai town.,,,,

2.1.11) Commercial land measuring 8L covered by Dag No. 2438 P.P. No. 720 in Mangaldai town.,,,,

2.2) Residential Properties:-,,,,

2.2.1) 3 BHK flat at Kanak Apartment, Guwahati",,,,

2.2.2) 2 storeyed hosue in Salt Lake City, Kolkata.",,,,

2.3) Agricultural properties ;,,,,

2.3.1) Land measuring 1B-3K-12L covered by Dag No. 1005 P.P. No. 720 in Mangaldai town.,,,,

2.3.2) Land measuring 1K-11.25L covered by Dag No. 1567 P.P. No. 720 in Mangaldai town.,,,,

2.3.3) Land measuring 3K-19L covered by Dag No. 1614 P.P. No. 720 in Mangaldai town.,,,,

2.3.4) Land measuring 13L covered by Dag No. 1629 P.P. No. 720 in Mangaldai town.,,,,

2.3.5) Land measuring 15L covered by Dag No. 1630 P.P. No. 720 in Mangaldai town.,,,,

2.3.6) Land measuring 2B-2K-16L, covered by Dag No. 1642 P.P. No. 720 in Mangaldai town.",,,,

2.3.7) Land measuring 13-L, covered by Dag No. 2412 P.P. No. 720 in Mangaldai town.",,,,

2.3.8) Land measuring 9L, covered by Dag No. 481 P.P. No. 720 in Mangaldai town.",,,,

2.3.9) Land measuring 2k-15.13L, covered by Dag No. 1566 P.P. No. 672 in Mangaldai town.",,,,

2.3.10) Land measuring 1B-5L, covered by Dag No. 904, 905, 906 P.P. No. 131 in Mangaldai town.",,,,

2.3.11) Land measuring 9B-1K-13L, Dag No. 7, 44, 47 P.P. No. 10 in Mangaldai town.",,,,

2.3.12) Land measuring 2B-19L, Dag No. 8 P.P. No. 16 in Mangaldai town.",,,,

2.3.13) Land measuring 4K-18L, covered by Dag No. 622, 625, 627, 629, 645 P.P. No. 244 in Mangaldai town.",,,,

2.3.14) Land measuring 1B-2L, covered by Dag No. 905, 906 P.P. No. 89 in Mangaldai town.",,,,

2.3.15) Land measuring 4B-16L, covered by Dag No. 904, 32 P.P. No. 13 in Mangaldai town.",,,,

2.3.16) Land measuring 1B, covered by Dag No. 144 P.P. No. 160 in Mangaldai town.",,,,

2.3.17) Land (to be verified) covered by Dag Nos. 7, 9, 292, 299, 434, 436, 438, 479, 588, 590, 594, 596, 599, 637, 639, 641, P.P. No. 133 in Mangaldai",,,,

town.,,,,

2.3.18) Land (to be verified) covered by Dag No. 359 P.P. No. 89 in Mangaldai town.,,,,

2.3.19) Land (to be verified) covered by Dag No. 890 P.P. No. 20 in Mangaldai town.,,,,

2.3.20) Land (to be verified) covered by Dag No. 180, 274, 338, 359, 364, 390, 416, 424, P.P. No. 132 in Mangaldai town.",,,,

2.3.21) Land (to be verified) covered by Dag No. 529, P.P. No. 407 in Mangaldai town.",,,,

2.3.22) Land (to be verified) covered by Dag Nos. 161, 178, 185, 187, 190, 191, 458, 459, 461, 549 (pre 1987 classification), P.P. No. 57 in Mangaldai",,,,

town.,,,,

2.3.23) Land (to be verified covered by P.P. No. 936 in Mangaldai town.,,,,

2.3.24) Eksonia Land (to be verified) covered by P.P. No. 1 in Mangaldai town.,,,,

2.3.25) Eksonia Land (to be verified) covered by P.P. No. 4 in Mangaldai town.,,,,

2.3.26) Eksonia Land (to be verified) covered by P.P. No. 20 in Mangaldai town.,,,,

2.3.27) Eksonia Land (to be verified) covered by P.P. No. 12 in Mangaldai town.,,,,

2.3.28) Eksonia Land (to be verified) covered by P.P. No. 85 in Mangaldai town.,,,,

2.3.29) Ekhonia Land (to be verified) covered by P.P. No. 86 in Mangaldai town.,,,,

2.3.30) Land (to be verified) covered by P.P. No. 187 in Mangaldai town.,,,,

2.3.31) Land (to be verified) covered by P.P. No. 682 in Mangaldai town.,,,,

2.3.32) Land (to be verified) covered by P.P. No. 130 in Mangaldai town.,,,,

2.3.33) Eksonia Land (to be verified) covered by P.P. No. 641 in Mangaldai town.,,,,

2.3.34) Eksonia Land (to be verified) covered by P.P. No. 80 in Mangaldai town.,,,,

2.3.35) Eksonia Land (to be verified) covered by P.P. No. 476 in Mangaldai town.,,,,

2.3.36) Eksonia Land (to be verified) covered by P.P. No. 476 in Mangaldai town.,,,,

3) Mesne profits & incomes: Schedule-E: Mesne Profits and Income.,,,,

3.1) Profits from businesses. The final figure for profits will depend on the actual date of settlement.,,,,

3.2) Rental Income: The breakdown of rental income is as follows:,,,,

i) RL Ghosh : Rs. 1,666/- pm",,,,

ii) Battery Centre : Rs. 1,000/- pm",,,,

iii) Bau Hotel : Rs. 3,000/- pm",,,,

iv) Hotel Orchid : Rs.30,000/- pm",,,,

v) Sanjukta Feed Mill : Rs. 1,600/- pm",,,,

Type,Branch Name,Opening Date,Account No.,Amount

RD.,"SBI, Mangaldoi",13.06.2013,33055456158,"1,50,000/-

,"SBI, Mangaldoi",13.06.2013,33055457957,"2,25,000/-

FD.,"SBI, Mangaldoi",23.08.2011,31898880071,"30,00,000/-

FD.,"SBI, Mangaldoi",28.11.2008,30587979377,"12,00,000/-

SB.,"UCO Bank,

Mangaldoi",,015391,"1,32,211/-

RD.,"UCO Bank,

Mangaldoi",11.10.2011,05580310014493,"1,92,500/-

FD.,"UCO Bank,

Mangaldoi",27.11.2008,05580310001530,"1,00,000/-

SB.,"ICICI Bank,

Mangaldoi",,132101500214,"14,173/-

FD.,"UBI, Ulubari,

Guwahati",11.10.2008,0853109020821,"10,00,000/-

FD.,"UBI, Ulubari,

Guwahati",22.08.2011,0853109074318,"10,00,000/-

FD.,"UBI, Ulubari,

Guwahati",26.09.2011,0853109075502,"10,00,000/-

RD.,Post Office,Mangaldoi,124851,"1,75,000/-

SB.,SBI,Mangaldoi,10762945395,"Rs.29,08,971/-

SB,Standard Chartered Bank,Mangaldoi,,"Rs.13,90,757/-

NSC,National Saving Certificate,Mangaldoi,,"Rs.1,01,110/-

SB,Bank of India,Kolkata,,"Rs.7,710/-

,Cash-in-hand,,,"Rs.1,74,021/-

,Total,,,"Rs.49,32,569/-

was being deprived of her legitimate share of the properties and businesses left behind by the father of the appellant, all of which entailed appointment",,,,

of receiver so as to protect the interest of the appellant, who is residing outside the Country.",,,,

11) In support of his submissions, the learned senior advocate for the appellant has placed reliance on the following cases:-",,,,

a. Premier Automobiles Ltd. Vs. Kamlakar Shantaram Wadke & Ors., (1976) 1 SCC 496;",,,,

b. Moti Lal Vs. Badri Nath & Ors., AIR 1982 J&K 1;",,,,

c. Sree Venkataramana Temple Board of Education, Karkala Vs. C. Manjunatha Kamath & Ors., AIR 1974 Kant 59;",,,,

d. T. Krishnaswamy Chetty Vs. C. Thangavelu Chetty & Ors., AIR 1955 Mad 430.",,,,

12) The relevant paragraphs of the case of T. Krishnaswamy Chetty (supra), decided by the Hon’ble Madras High Court, on which the learned",,,,

Senior Advocate for the appellant has relied are quoted below (extracted from:-,,,,

“13. The five principles which can be described as the “panch sadachar†of our Courts exercising equity jurisdiction in appointing receivers are,,,,

as follows :,,,,

(1) The appointment of a receiver pending a suit is a matter resting in the discretion of the Court. The discretion is not arbitrary or absolute: it is a,,,,

sound and judicial discretion, taking into account all the circumstances of the case, exercised for the purpose of permitting the ends of justice, and",,,,

protecting the rights of all parties interested in the controversy and the subject-matter and based upon the fact that there is no other adequate remedy,,,,

or means of accomplishing the desired objects of the judicial proceeding: - Mathusri v. Mathusri, 19 mad 120 (PC) (Z5); - Sivagnanathammal v.",,,,

Arunachallam Pillai, 21 mad LJ 821 (Z6); - Habibullah v. Abtiakallah, air 1918 Cal 882 (Z7); - Tirath Singh v. Shromani Gurudwara Prabandhak",,,,

Committee, AIR 1931 Lah 688 (Z8); - Ghanasham v. Moraba, 18 Bom 474 (Z9); - Jagat Tarini Dasi v. Nabagopal Chaki, 34 Cal 305 (Z10); - Sivaji",,,,

Raja Sahib v. Aiswariyanandaji, AIR 1915 mad 926 (Z11); - Prasanno Moyi Devi v. Beni Madhab Rai, 5 All 556 (Z12); - Sidheswari Dabi v.",,,,

Abhayeswari Dabi, 15 Cal 818 (Z13); - Shromani Gurudwara Prabandhak Committee, Amritsar v. Dharam Das, AIR 1925 Lah 349 (Z14); -",,,,

Bhupendra Nath v. Manohar Mukerjee, AIR 1924 Cal 456 (Z15).",,,,

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

Dhumi v. Nawab Sajjad Ali Khan, AIR 1923 Lah 623 (Z16); - Firm of Raghubir Singh Jaswant v. Narinjan Singh, AIR 1923 Lah 48 (Z17); - Siaram",,,,

Das v. Mohabir Das, 27 Cal 279 (Z18); - Muhammad Kasim v. Nagaraja Moopanar, AIR 1928 Mad 813 (Z19); - Banwarilal Chowdhury v. Motilal,",,,,

AIR 1922 Pat 493 (Z20).,,,,

(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. A Court will not act on possible danger only; the danger must be great and imminent demanding immediate relief. It has been truly said,,,,

that a Court will never appoint a receiver merely on the ground that it will do no harm. - Manghanmal Tarachand v. Mikanbai, AIR 1933 Sind 231",,,,

(Z21); - Bidurramji v. Keshoramji, AIR 1939 Oudh 61 (Z22); - Sheoambar Ban v. Mohan Ban, AIR 1941 Oudh 328 (Z23).",,,,

(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. If the dispute is as to title only, the Court very reluctantly disturbs possession by receiver, but if the property is exposed to danger",,,,

and loss and the person in possession has obtained it through fraud or force the Court will interpose by receiver for the security of the property. It,,,,

would be different where the property is shown to be in medio, that is to say, in the enjoyment of no one, as the Court can hardly do wrong in taking",,,,

possession: it will then be the common interest of all the parties that the Court should prevent a scramble as no one seems to be in actual lawful,,,,

enjoyment of the property and no harm can be done to anyone by taking it and preserving it for the benefit of the legitimate who may prove,,,,

successful. Therefore, even if there is no allegation of waste and mismanagement the fact that the property is more or less in medio is sufficient to",,,,

vest a Court with jurisdiction to appoint a receiver. - Nilambar Das v. Mabal Behari, AIR 1927 Pat 220 (Z24); - Alkama Bibi v. Syed Istak Hussain,",,,,

AIR 1925 Cal 970 (Z25); - Mathuria Debya v. Shibdayal Singh, 14 Cal WN 252 (Z26); -",,,,

Bhubaneswar Prasad v. Rajeshwar Prasad, AIR 1948 Pat 195 (Z27). Otherwise a receiver should not be appointed in supersession of a bone fide",,,,

possessor of property in controversy and bona fides have to be presumed until the contrary is established or can be indubitably inferred.,,,,

(5) The Court, on the application 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. He must come to Court with clean hands and should not have disentitled himself to the equitable relief by,,,,

laches, delay, acquiescence etc.",,,,

To sum up as stated in - Crawford v. Ross"", 39 Ga 44 (Z28),",,,,

The high prerogative act of taking property out of the hands of one and putting it in pound under the order of the Judge ought not to be taken except",,,,

to prevent manifest wrong imminently impending.""",,,,

In - Dozier v. Logan, 101 ga 173 (Z29) Atkinson J. said ""The appointment of a receiver is recognised as one of the harshest remedies which the law",,,,

provides for the enforcement of rights and is allowable only in extreme cases and in circumstances where the interest of the creditors is exposed to,,,,

manifest peril.""",,,,

Therefore, this exceedingly delicate and responsible duty will be discharged with the utmost caution and only when the “panch sadachar†or five",,,,

requirements embodied in the words just and convenient (O.40, R.1) are fulfilled by the facts of the case under consideration â€" [Ramachandrayya v.",,,,

Nethi Iswarayya, AIR 1952 Hyd 139 (Z30)].",,,,

13) Per contra, the learned advocate for the respondents has objected to the prayer for appointment of receiver. The learned advocate for the",,,,

respondents has made his submissions in support of the impugned order. It is submitted that one of the properties, of which photographs showing that",,,,

the properties are kept in state of neglect, belongs to Smt. Krishna Basu, the sister of Late Benoy Kumar Ghosh. It is also submitted that all the",,,,

properties are in occupation of the respondents, which are being looked after by the employees and caretakers appointed by the respondents. It is",,,,

submitted that the respondent No.2 was occupying the property located at Kolkata, and moreover, the respondent No.4 was residing at Guwahati and",,,,

was taking care of the properties as well as the businesses in Guwahati as well as Mangaldai. It is submitted that the respondent No.1 was the owner,,,,

of the property described in Schedule-C by virtue of probate granted on 27.05.1994 by the Court of the learned District Judge, Mangaldai in Misc.",,,,

(Probate) Case No. 43/1993, as such, the Court had no jurisdiction to try the suit. It is submitted that on death of their predecessor- in-interest, the",,,,

appellant was only entitled to her share in the estate of Late Benoy Kumar Ghosh if she can succeed in the suit and therefore, having no right to enter",,,,

into the said partnership, the appellant had no legal right for appointment of receiver. It is further stated in the objection that in respect of partnership",,,,

assets, required separate trial under the Partnership Act, 1932. In support of his submissions, while the learned advocate for the respondents has",,,,

placed reliance on the case of S. Saleema Bi Vs. S. Pyari Begum & Anr., (2000) 9 SCC 560, from the affidavit in opposition filed by the respondents,",,,,

it appears that the respondents are also relying on the case of Khewaji Trust (Regd.), Faridkot Vs. Baldev Das, AIR 2005 SC 104.",,,,

14) Perused the materials on record. There is no dispute that the appellant is the eldest daughter of Late Benoy Kumar Ghosh. Thus, the respondent",,,,

No.2 is the mother of the appellant and the respondents No.1 and 3 and, as such, the appellant and the respondents No.1 and 3 are siblings. Hence,",,,,

there is no dispute that the predecessor- in- interest of the parties having expired on 29.08.2014, as such, the appellant is prima facie entitled to 1/4th",,,,

share in the estate left behind by the deceased. The appellant claims that the properties left behind by her father is valued at Rs.69.00 Crore,,,,

approximately. Moreover, while the appellant has valued the assets at about Rs.69.00 Crore, in the affidavit- in- opposition filed by the respondents in",,,,

this appeal, as well as in the written objection in Misc. (J) Case No. 585/2016, the respondents have not denied the valuation put forth by the",,,,

appellants. As the appellant has approached the Court for partition and other reliefs, this Court has presumed that the respondents have not permitted",,,,

the appellant from enjoying the usufruct of the immovable properties and from participating in business and/or from getting her share from out of the,,,,

estate left behind by her father, or in the alternative, the appellant is dissatisfied with the arrangement which is presently being followed by the family.",,,,

15) On a perusal of the statements made in the written objection filed by the respondents in Misc. (J) Case No. 585/2016 for appointment of receiver,",,,,

this Court does not find any statement by the respondents to indicate that any steps has been taken for providing the appellant her 1/4th share in the,,,,

estate left behind by the deceased, including rent and other usufruct in respect of immovable properties. However, from entry No. 7.1 of the Schedule",,,,

of assets, it appears that the respondent No.2 had paid a sum of Rs.26,17,018/- to the appellant from out of money received by her from bank",,,,

accounts where she was a nominee.,,,,

16) While the appellant claims that that out of the various properties stated by the appellant to be owned by the predecessor- in- interest of the parties,",,,,

the property described in Schedule-C of the plaint is shown in the annexed photograph to be in state of neglect. In this regard, is projected by the",,,,

respondents in the affidavit- in- opposition filed in this appeal before this Court that the said properties described in Schedule-C plot of land did not,,,,

belong to the predecessor- in- interest of the parties, but it is alleged that the said particular property described in Schedule-C belonged to the sister of",,,,

the deceased. However, it is seen that the said version was, however, not the specific stand of the respondents in the written objection filed in Misc.",,,,

(J) Case No. 585/2016. Nonetheless, be there as it may, when there is a dispute as to the ownership of a particular property, this Court does not find it",,,,

prudent to appoint a receiver against the interest of the purported real owner of the said property, who is not before this Court.",,,,

17) In so far as one another property is concerned, which is claimed by the appellant to be the homestead land of the predecessor- in- interest of the",,,,

parties, appears to be rightly or wrongly vested on the respondent No.1 by virtue of probate granted in his favour by the Court of the learned District",,,,

Judge, Mangaldai in Misc. (Probate) Case No. 43/1993, on the basis of a purported Will executed by the grand-mother of the appellant. Thus situated,",,,,

in the opinion of this Court, until the right of the appellant is declared in respect of the said land, a case of appointment of receiver is not made out in",,,,

respect of the said land. In the opinion of this Court, until the said probate granted by the competent Court stands and unless the appellant establishes a",,,,

semblance of her prima facie right over the said property, the case of appointment of a receiver is not made out.",,,,

18) It is seen from the documents submitted by the appellant that the Deed of Partnership dated 01.04.2001, registered as Deed No. 443 dated",,,,

06.07.2005, in respect of partnership firm under the name and style of M/s. R.L. Ghosh & Sons at Mangaldai Town, executed between (1) Sri Benoy",,,,

Kumar Ghosh, (2) Sri Amitabha Ghosh, (3) Smt. Rakhi Ghosh, and (4) Smt. Ushasi Ghosh, provides in Clause 17 thereof as follows:-",,,,

“17) That in case of death of any of the partners of Partnership will not be dissolved, but the remaining partners will carry on the business admitting",,,,

the heirs/ or the legal representatives of the deceased partner in his/ her place.â€​,,,,

19) With regard to the claim made in respect of the partnership business, it is seen that the learned trial Court had observed that the appellant had",,,,

brought certain allegations against the respondents herein of depriving the petitioner of her legitimate shares in the Schedule properties, profits, rents",,,,

out of the incomes from the Schedule properties, which the respondents had vehemently denied. In this connection, it is seen that while in respect of",,,,

remaining businesses described in the schedules given above, the respective partnership deeds provide that the legal heirs and/or the legal",,,,

representatives would be paid their share from out of the share to which the deceased partner would be entitled to. The learned Senior Counsel for the,,,,

appellant had submitted that the learned trial Court has also failed to consider that there is no dispute that there are many immovable properties as,,,,

disclosed in the Schedule referred to herein before, but though the appellant is one of the daughters of the respondent No.2 and the deceased, namely,",,,,

Sri Benoy Kumar Ghosh, and one of the sisters of the respondents No.1 and 3, she has been kept out of the management of these immovable",,,,

properties and that except for the observation made by the learned trial Court that the respondents have vehemently denied that the appellant has been,,,,

deprived of her legitimate shares in the Schedule properties, profits, rents out of the incomes from the Schedule properties, from the materials available",,,,

on record, the respondents have not disclosed any material, either before the learned trial Court or before this appellate Court, that the appellant had",,,,

been given any share of property, rent, profits, etc. from out of the immovable properties.",,,,

20) In this case, the appellant has filed a suit for partition of the estate left behind by her father. Therefore, when the right of the appellant is",,,,

determined in respect of her share in the said estate, the rent, profits, etc., to which the appellant was entitled to during the period from the death of",,,,

her father till delivery of her share can be decreed by the learned trial Court upon crystallization of her rights.,,,,

21) Amongst all other properties, it appears from the jamabandi (Document No.8 in the compilation), filed in respect of building where Hotel Orchid at",,,,

Ulubari, Guwahati is situated, morefully referred as Schedule-A property, it prima facie appears that the land has been mutated in respect of the",,,,

respondents No.1 and 2, as such, it is prima facie apparent that the name of the appellant has been left-out while mutating the names of the legal heirs",,,,

of Late Benoy Kumar Ghosh. Yet, this Court is of the view that as the present suit for partition is also in respect of this particular property described",,,,

in Schedule-A, the right of the appellant cannot be said to have been completely ousted because mutation entries alone does not confer ownership",,,,

right, title and interest.",,,,

22) All other properties and business appears to be in constructive possession of the respondents, and the decision of the learned trial Court that the",,,,

properties and assets left behind by the deceased are not “in medioâ€​.,,,,

23) There is no doubt that the ratio laid down by the Hon’ble High Court of Jammu & Kashmir in the case of Motilal (supra), covers the case of a",,,,

partner, whose right to manage the affairs of the partnership has been deprived. In the said case of Motilal (supra), the Hon’ble High Court of",,,,

Jammu & Kashmir had held that â€" “The law is well established that where there is prima facie existence of partnership and the plaintiff is denied,,,,

his right to manage the affairs of partnership and to have access to the account thereof, the appointment of a receiver would be justified. (See AIR",,,,

1976 J&K 37, Prem Prakash Vs. Gobind Ram).†The argument made by the learned Senior Advocate for the appellant in respect of the right of the",,,,

appellant in the partnership business of M/s. R.L. Ghosh & Sons of Mangaldai Town is concerned, stands buttressed by virtue of the said Partnership",,,,

Deed dated 01.04.2001, from which there appears to be a prima facie right of the appellant to be inducted as one of the partners in respect of the",,,,

share of her deceased father. However, the partnership business cannot be partitioned, but a suit can be brought for rendition of accounts and also for",,,,

dissolution of partnership. There also appears to be no bar for filing a suit for being included as one of the partners of the partnership firm in lieu of the,,,,

share of the deceased partner. Nonetheless, as the appellant is not yet admitted as a partner in any of the partnership firms where the predecessor- in-",,,,

interest of the parties was a partner, the ratio of the case of Motilal (supra) is not found to help the appellant.",,,,

24) In the case of Sree Venkataramana Temple Board of Education (supra), it has been held that if circumstances justify the appointment of a",,,,

receiver, Court has wide powers to appoint a receiver and that such appointment can be made at any time.",,,,

25) Moreover, the interest of the appellant is deemed to be well protected in respect of all the immovable properties described in Schedules of the",,,,

plaint, which were left behind by the predecessor- in- interest of the parties by virtue of the doctrine of lis pendens as provided for under Section 52 of",,,,

the Transfer of Property Act, 1882. Moreover, the learned trial court by order dated 16.11.2017, passed in Misc.(J) Case No. 586/2016, has directed",,,,

the respondents to maintain status quo by restraining them from alienating or transferring the suit properties. Hence, at this stage, there is no",,,,

immediate danger to any of such immovable properties.,,,,

26) Therefore, at this stage, as this Court does not find any immediate danger to the immovable properties or any other asset including interest in",,,,

businesses left behind by the predecessor- in- interest of the parties, this Court is not inclined to interfere with the order passed by the learned trial",,,,

Court.,,,,

27) However, taking note of the fact that the appellant has not been inducted in the business of M/s. R.L. Ghosh & Sons of Mangaldai Town, and that",,,,

the name of the appellant has not been mutated in respect of the immovable properties described in Schedule-A of the plaint, it would be open for the",,,,

appellant to seek appropriate remedy, if so advised. It is needless to mention that if the immovable properties and other assets left behind by the",,,,

predecessor- in- interest of the parties are found to be imminent danger, requiring immediate action, on a fresh cause of action, it would be open for",,,,

the appellant to approach the learned trial Court again with a prayer for appointment of receiver, if so advised.",,,,

28) While dismissing this appeal with liberty and observation as made herein before, having seen that the family of a now deceased eminent Senior",,,,

Advocate of this Court are litigating for property, this Court is reminded of the following:-",,,,

“ayam bandhurayanneti ganana laghuchetasam Udaracharitanam tu vasudhaiva kutumbhakamâ€​,,,,

Mantra VI-72 in Maha- Upanishad, of Samaveda tradition. Meaning:",,,,

“This person is mine and this one is not â€" is the calculation of the narrow minded (i.e. the ignorant). For those of noble conduct (i.e. who knows,,,,

the supreme truth), the whole world is one family.â€​",,,,