S.P. Sankar and Others vs S.P. Subramani and Others

M. Chockalingam, J.—This application is made by the plaintiffs seeking appointment of an Advocate Receiver to take charge of the

property described in the Schedule to the plaint, collect the rents and deposit the same into Court to the credit of C.S. No. 562 of 2004 filed by

the plaintiffs for the relief of recovery of possession of the suit property from the defendants along with a direction to the first defendant to pay to

the plaintiff a sum of Rs. 23,40,000/- being the arrears of damages for illegal use and occupation together with interest thereon.

Affidavit in support of the application and the counter-affidavit are perused. The Court heard the learned Counsel for the applicants/plaintiffs and

also for the respondents/defendants .

According to the plaintiffs, the suit property originally belonged to one Raju Mudaliar, who died issueless on 8-7-1956 leaving behind his two

brothers Duraisamy Mudaliar and Ratnam Mudaliar, and his widow Kuppuratnammal, and his mother. The said Raju Mudaliar executed a Will on

19-12-1948 bequeathing the plaint Schedule property to his wife for her lifetime and thereafter to be enjoyed by the children of his brother Ratnam

Mudaliar, absolutely. One Shanmugam Mudaliar, the cousin brother of Raju Mudaliar, and Ratnam Mudaliar were named as Executors in the Will

referred to above. After the death of Raju Mudaliar, his brother Ratnam Mudaliar, would be the sole executor under the said Will dated 19-12-

1948. The said Shanmugam Mudaliar applied for probate of the said Will in O. P. No. 361 of 1956, and the same was ordered on 28-2-1957.

On an application filed by Duraisamy Mudaliar, the other brother of Raju Mudaliar, who was the father of the first defendant, probate granted by

this Court in the said O.P., was revoked on 25-4-1974, and thus, the O.P. was converted into a testamentary original suit in T.O.S. No. 7 of

1975. At the time when the probate was revoked, the two executors died, and the legal representatives of the two deceased executors became the

plaintiffs. After elaborate trial, probate was granted on 29-5-1990. During the said proceedings, the said Duraisamy Mudaliar, the other brother of

Raju Mudaliar, died, and his legal representatives were brought on record. They preferred an appeal in O. S. A. No. 125/90, and the same was

dismissed by the Court on 4-10-2001. The plaintiffs are the legal heirs of Ratnam Mudaliar, in whose favour the property was bequeathed by the

late Raju Mudaliar. The said Kuppuratnammal, the widow of Raju Mudaliar, died on 22-2-1967. Thus, the plaintiffs have acquired title to the

property. As per the terms of the Will, the suit property has to be taken absolutely in equal shares by the sons of late Ratnam Mudaliar. The first

son of Ratnam Mudaliar died in the year 1995 leaving behind the third plaintiff and the plaintiffs 4 to 8 as the legal heirs. Now, the plaintiffs as the

legal heirs of late Ratnam Mudaliar, are entitled to the property. The respondents/defendants are in illegal possession and enjoyment of the suit

property. The first defendant who claims to be the owner of the suit property, and defendants 2 to 5 who claim to be tenants under the first

defendant, are denying the plaintiffs'' title to the suit property. The first defendant is also collecting the rents from the defendants 2 to 6 illegally.

Under such circumstances, the plaintiffs have issued a notice through the Counsel, which was also served on the defendants. Since the demand

made thereat was not complied with, the plaintiffs were constrained to file the suit for recovery of possession and also for damages.

Now, the learned Counsel appearing for the applicants would submit that pending the suit, it has become necessary to file this application for

appointment of an Advocate Receiver since the property is very old and occupied by the tenants; that the first respondent is collecting rents from

the tenants without any right, title or interest; that the first respondent is neither maintaining the property nor accounting the income from the tenants;

that the value of the property is decreasing every day due to the lack of maintenance, and it is put to waste; that the first respondent is not

interested in the maintenance of the property, and therefore, it has become necessary for the appointment of an Advocate Receiver by the Court to

take charge of the property, collect the rents and deposit the same into Court.

Countering the above contentions, it is contended by the learned Counsel appearing for the first respondent, that the instant application filed by

the applicants for appointment of an Advocate Receiver is an abuse of process of law; that it is a suit for recovery of possession without the prayer

for declaration of title; that the first defendant has been constantly denying the title of the plaintiffs for more than nearly four decades; that in that

line, a written statement has already been filed, and thus, the question as to whether the plaintiffs are entitled to the property has got to be decided;

that pending the suit for recovery of possession, the instant application for appointment of an Advocate Receiver cannot be entertained or ordered;

that the applicants have no right over the suit property; that the question of appointment of Receiver pending the suit, does not arise; that the first

defendant has been enjoying the suit property absolutely, and therefore, he should not be deprived of the possession of the property by appointing

an Advocate Receiver pending the suit; and that if the relief as one asked for, is granted, it would amount to granting the main relief itself. The

learned Counsel would further submit that it is true that Raju Mudaliar, Duraisamy Mudaliar and Ratnam Mudaliar are brothers; that it is also true

that on the death of Raju Mudaliar, he was survived by his wife Kuppuratnammal, his mother and his aforesaid brothers; that it is false to allege that

the property on the death of the aforesaid persons fell to the plaintiffs; that so far as the alleged testament of Raju Mudaliar was concerned, it

would be irrelevant for this case; that it is true that the applicants filed an O. P. for grant of probate, and the same was granted in T.O.S. No. 7/75;

that in the O. S. A., which was filed by the first defendant, it was also confirmed; but, it is not correct to state that by virtue of the said judgment,

the plaintiffs became the owners of the property; and that in exercise of the testamentary jurisdiction, this Court had never gone into either or could

have gone into the question as to the title of the property.

Placing reliance on the decisions reported in (1) Mrs. Hem Nolini Judah (since deceased) and after her Legal Representative Mr. Marlean

Wilkinson Vs. Isolyne Sarojbashini Bose and Others, ; (2) Mrs. Elizabeth Antony Vs. Michel Charles John Chown Lengera, ; (3) Chiranjilal

Shrilal Goenka (Deceased) through Lrs. Vs. Jasjit Singh and Others, and (4) Ghulam Qadir Vs. Special Tribunal and Others, , the learned Counsel

for the first respondent would add that it is well settled principle of law that such a power is not vested in the Court exercising testamentary

jurisdiction, to go into the said question of title; that all that is declared in the case is whether the Will is true or false, and hence, the statement that

the applicants have acquired title by virtue of the Will and the consequent judgment is legally untenable. Added further the learned Counsel that the

said Duraisamy Mudaliar during his lifetime filed a suit for declaration of title in O. S. No. 7583/78 on the file of the City Civil Court; that the

parties to the instant suit and the parties through whom the other applicants claim property, were parties to the said suit; that the subject-matter in

the instant suit was also the subject-matter in that suit; that the said suit was decreed in the year 1983; that the defendants therein filed an

application to set aside the decree in I. A. No. 17298/84, and the same was dismissed in 1985; that it was also confirmed in C. R. P. No.

3374/88 in the year 1989, and thus, the decree declaring the title of Duraisamy Mudaliar and that of his legal heirs, has become final; that on the

death of her husband, the property devolved on Kuppuratnammal, which bloomed into an absolute estate by operation of Section 14 of the Hindu

Succession Act, 1956; that the same was also recognized in A. S. No. 21/ 2002/ that on her death, it devolved on the father of the first defendant

as the reversioner, and therefore, the plaintiffs cannot claim any title over the property on the basis of the Will; that both the criminal proceedings

and the rent control proceedings initiated by the plaintiffs prior to the present suit, were dismissed; that it was found in all cases that the plaintiffs

were not entitled to the relief of dispossession of the first defendant; and that since the plaintiffs'' title is denied, they should have sought for

declaration of title; but, they have sought only for recovery of possession.

Placing reliance on the decision reported in T. Krishnaswamy Chetty Vs. C. Thangavelu Chetty and Others, and a decision of the Division

Bench of this Court reported in 2005 (2) LW 432, (R. Soundararajan v. R. Sivaprakasam), the learned Counsel for the first respondent would

submit that a Receiver cannot be appointed unless and until, the Court is shown proof that the plaintiff has prima facie case of very excellent chance

of succeeding the suit, and he must also show a cause of emergency or danger or loss demanding immediate action, and of his own right, he must

be reasonably clear and free of doubt.

Citing two decisions of the Apex Court reported in Metro Marins and Another Vs. Bonus Watch Co. Pvt. Ltd. and Others, and S. Saleema Bi

Vs. S. Pyari Begum and Another, , the learned Counsel for the first defendant would submit that the receivership which tends to dispossess the first

defendant from the property, cannot be granted by way of an interlocutory application. For the above reasons, the learned Counsel would submit

that the application has got to be dismissed.

After careful consideration of the rival submissions made, this Court is of the considered opinion that this application does not carry any merit,

and hence, it has got to be dismissed for more reasons than one.

The applicants/plaintiffs have filed the suit for a direction to the defendants to deliver vacant possession of the suit property and have also

sought a money decree against the first defendant to pay the plaintiff a sum of Rs. 23.40 lakhs as arrears of damages for illegal use and occupation,

together with interest. Even as per the averments in the plaint and the affidavit in support of the application, the first defendant claiming to be the

owner of the suit property, and the defendants 2 to 5 claiming to be the tenants under the first defendant, denied the plaintiffs'' title to the suit

property. Thus, it would be quite evident that the defendants have questioned the title of the plaintiffs to the suit property; but, the plaintiffs have not

filed a suit for declaration of title, but have filed the suit only for recovery of possession from the defendants 1 to 5 and for damages from the first

defendant. According to the plaintiffs, they became entitled to the property in view of the probate issued by this Court in T.O.S. No. 7/75 and

subsequently confirmed in O. S. A. No. 125/90. Denying their case, it is contended by the learned Counsel for the first respondent that it was only

a testamentary suit for the issue of a probate, and in the said suit, the Court in exercise of the jurisdiction, cannot go into the question of title to the

property, since it is not vested. At this juncture, it has to be pointed out that the Court has to necessarily agree with the legal position put forth by

the learned Counsel for the first respondent. In exercise of testamentary jurisdiction, all that is declared by the Court is whether the Will is true or

otherwise, and the Court cannot go into or investigate into any question relating to the title of the property.

It is not in controversy that a suit was filed in O.S. No. 7583/78 in respect of the property including the property in question, and it was also

between the same parties. The said suit was also decreed in 1983. Though it was sought to be set aside, the decree passed by the trial Court, was

affirmed. According to the first respondent, they derived title through the judgment passed by the Court in that suit. However, whether the plaintiffs

who seek for recovery of possession, have claimed declaration of title either, or whether the plaintiffs are entitled to the property or the first

defendant is entitled to the property is left open to be decided at the time of trial. Now, the Court has to see whether there are necessary grounds

subsisting, for appointment of an Advocate Receiver. What are all stated in the affidavit for seeking the relief is that the property is very old; that it

is not maintained by the first defendant properly; that he has been getting income from the tenants; but, he is not reporting any accounts; that the

property value is being decreased; and that he is just keeping it as waste. This Court is of the considered opinion that no prima facie case is made

out for appointment of an Advocate Receiver. It has to be pointed out that the decision reported in T. Krishnaswamy Chetty Vs. C. Thangavelu

Chetty and Others, and subsequently followed in a decision reported in 2005 (2) LW 432 (R. Soundararajan v. R. Sivaprakasam) would squarely

apply to the present facts of the case.

Needless to say that appointment of a Receiver by the Court pending the suit is a matter of discretion; but, it has got to be exercised

judiciously. The Court has to apply the test whether the plaintiffs have shown a prima facie case that they have got a very excellent chance of

success in the suit. In the instant case, the plaintiffs have come forward with the suit for recovery of possession and also for damages; but, they

have not asked for a relief in respect of title, though it is being denied and questioned by the first defendant all along in the past. By the reasons that

are adduced by the applicants/plaintiffs, seeking for intervention of Court by appointment of an Advocate Receiver, they have not shown in any

way any emergency or danger or loss demanding immediate action. That apart, element of danger which is an important consideration, is also not

noticed. It is pertinent to point out that it is a suit for recovery of possession. While the suit is pending, where the title of the plaintiffs is also being

questioned by the first respondent, granting the relief of appointment of a Receiver is nothing but more or less granting the relief as asked for in the

suit, at the earliest even before the trial is taken. This Court is of the firm view that the reasons adduced, would not be suffice for the intervention by

the Court for appointing a Receiver and also while the relief of recovery of possession is asked for wherein the title of the plaintiffs is also being

questioned, the interim relief for appointment of an Advocate Receiver, under the circumstances, is not one warranted and either to be considered

or to be granted by the Court. Hence, this application deserves an order of dismissal, and accordingly, it is dismissed.