Madras High Court
Rukmani Devi And Ors. vs R.M. Lakshmandoss on 15 November, 1994
Equivalent citations: (1995)2MLJ4
JUDGMENT Srinivasan, J.
1. 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.
2. 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.
3. 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.
4. 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.
5. 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 v. Rajendra . 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 Nihal Chand v. Ram Niwas A.I.R. 1968 P. & H. 523. 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.
6. 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.
7. 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 Krishnan v. Maruvalamma A.I.R. 1935 Mad 402 : 41 L.W. 353, 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 A.I.R. 1948 Mad. 396. by a Division Bench of this Court.
8. 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.
9. 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.