Andhra HC (Pre-Telangana)
Karumanchi Padmapriya And Ors. vs Chirasani Ratnakumari And Ors. on 20 July, 2007
Equivalent citations: 2008(2)ALT188
JUDGMENT P.S. Narayana, J.
1. This Civil Miscellaneous Appeal No. 385 of 2004 had been preferred by the appellants-defendants 6 to 8 as against the order in IA No. 1325 of 2002 in OS No. 44 of 2002 and 2nd defendant preferred CMA No. 387 of 2004 as against the order in IA No. 1201 of 2003 in OS No. 44 of 2002 on the file of Additional Senior Civil Judge, Tenali respectively and these Civil Miscellaneous Appeals were dismissed for default.
CMAMP Nos. 1174 of 2007 and 1159 of 2007
2. CMAMP Nos. 1174 of 2007 and 1159 of 2007 are filed for setting aside the orders of dismissal made in the above Civil Miscellaneous Appeals and to restore the said appeals to file.
3. It is stated that the respective Counsel representing these appellants were held up elsewhere and at the relevant point of time the Counsel who was entrusted with the duty to represent these matters due to miscalculation of time, the said Counsel was not present and consequently these matters were dismissed for default and the respective affidavits filed in respect of these applications had been sworn to by the respective Counsel representing these parties. In the light of the facts and circumstances, the orders of dismissal dated 5.3.2007 are hereby set aside and the Civil Miscellaneous Appeals are restored to file.
4. Heard Sri V.S.R. Anjaneyulu and Sri J. Bhaskar Rao, learned Counsel representing the respective appellants in these Civil Miscellaneous Appeals and Sri K. Suresh Reddy, learned Counsel representing certain of the contesting respondents.
5. The Counsel representing the respective appellants in these Civil Miscellaneous Appeals had taken this Court through the reasons which had been recorded by the learned Additional Senior Civil Judge, Tenali, and would maintain that in the facts and circumstances inasmuch as the respective shares of the parties not being in serious dispute, a Receiver could have been appointed and even if the learned Judge came to the conclusion that it may not be just and convenient to appoint a Receiver, an appropriate direction could have been given fixing reasonable amount instead of directing deposit of only Rs. 60,000/- for every agricultural year especially taking into consideration the large extent of lands involved in the suit. The Counsel also had taken this Court through Exs. P-1 to P-24 and Exs. R-1 to R-12 in this regard. Incidentally on the aspect of relief of temporary injunction, certain submissions made that in the light of the facts and circumstances the possession of defendants 6 to 8 should have been protected.
6. Per contra, Sri K. Suresh Reddy, learned Counsel representing the contesting respondents had taken this Court through the relevant portions of the common order made in both the applications and would maintain that in the light of the respective stands taken by the parties, the learned Judge arrived at the correct conclusion. Even otherwise the Counsel would submit that in the light of the fact that the suit itself is a part-heard one and at this distant point of time inasmuch as the direction is being complied with, the said common order need not be disturbed by this Court.
7. Heard the Counsel and perused the findings recorded in the common order made by the learned Senior Civil Judge, Tenali, in IA Nos. 1325 of 2002 and 1201 of 2003 in OS No. 44 of 2002.
8. The appellants in CMA No. 385 of 2004 are defendants 6 to 8 in the suit and they filed an application IA No. 1325 of 2002 praying for the relief of temporary injunction restraining the respondents therein from disturbing their alleged possession over the plaint A schedule landed property. The learned Judge came to the conclusion that prima facie the possession of the 1sl defendant over the plaint A schedule landed property to be believed being a resident of the said village, was not inclined to grant the relief of temporary injunction. Aggrieved by the same, CMA No. 385 of 2004 was preferred.
9. The 2nd defendant filed IA No. 1201 of 2003 praying for the relief of appointment of Receiver for management of plaint A schedule properties by auctioning the leasehold rights and to deposit the amounts in Court. The learned Judge, on appreciation of the respective stands, came to the conclusion that a direction to be issued to the 2nd respondent-18' defendant to deposit Rs. 60,000/- for every agricultural year commencing from 2004-05 as a condition to cultivate the plaint A schedule agricultural lands and the same to be deposited into Court every year by the end of March and the deposit of agricultural year 2004-05 to be made before 31.3.2004 and likewise for subsequent years and if the 1st defendant fails to deposit the amounts, the Court will make an order for appointment of Receiver to conduct the auction of the leasehold rights of the plaint A schedule properties. Aggrieved by the same, the 2nd defendant preferred CMA No. 387of2004.
10. The plaintiff filed a suit for partition claiming 7/20th share in the plaint schedule properties on the ground that the said properties are the joint family properties of the plaintiff, her mother/1st defendant, her sister/6th defendant. It is also the case of the plaintiff that as the defendants 3 to 5 were married prior to 5.9.1985, they were not entitled to any share in the plaint schedule properties and it is also her case that her father Mathi Reddy begot through his first wife defendants 2 to 4 and one Rajasekhar Reddy was born after the death of his first wife to late Annapurnamma. Mathi Reddy married 1st defendant, through whom the plaintiff and defendants 5 and 6 were born. It is also her case that as there was pressure from the 1sl defendant his brother Rajasekhar Reddy and after the death of Annapurnamma and after marrying 1st defendant, late Mathi Reddy effected partition in the month of April, 1970 between himself, the 2nd defendant and one Rajasekhar Reddy and the said partition was reduced into writing by way of a registered Partition Deed dated 16.3.1972 and after the said partition, the plaintiff and defendants 5 and 6 and the wife of Mathi Reddy constituted members of the joint family. As Rajasekhar Reddy i.e., divided son of Mathi Reddy, died in the year 1984 intestate and unmarried and as his mother Annapurnamma died by then, his separated share was succeeded by late Mathi Reddy. As Mathi Reddy performed the marriages of defendants 3 to 5 prior to 5.9.1985, 1st defendant, plaintiff and 6th defendant succeeded to the estate of Mathi Reddy in equal shares. The marriaqe of the plaintiff had taken place on 9.6.1990. The 6lh defendant married one Karumanchi Anil Kumar, a person of different caste in and around April, 1992 against the liking of late Mathi Reddy. After the said marriage Mathi Reddy was not in talking terms with the 6th defendant and her family and there was no visiting terms between them. Some time later the 1sl defendant turnd sympathetic towards her daughter-6th defendant and started to harass her husband Mathi Reddy to give property to the 6th defendant. Mathi Reddy having apprehended danger to his life, gave a police complaint and also filed OS No. 228 of 2000 against the defendants 1 and 2 for perpetual injunction to restrain them from interfering with the plaint A schedule landed property. The subsequent events ultimately forced Mathi Reddy to enter into an unwilling compromise in the said suit on 5.7.2000 whereunder he agreed to settle 3 acres 50 cents of land in favour of his daughters, defendants 7 and 8 representing their mother, 6th defendant as guardian, retaining life interest in himself. It is also stated that Mathi Reddy was suffering from Diabetis and gas trouble and took treatment at the hospital of Dr. P. Dakshina Murthy between 24.7.2000 to 9.8.2000 and after discharge, the plaintiff took Mathi Reddy to her house at Hyderabad and that Mathi Reddy returned to his native place Chinaparimi on 24.9.2000. As Mathi Reddy gave item No. 1 of plaint A schedule in an extent of 6 acres 20 cents to the plaintiff towards her Pasupukumkuma and was depositing the income in fixed deposits by managing the said property, Mathi Reddy wanted to execute a document conveying that property to the plaintiff and that the plaintiff met Mathi Reddy at Tenali on 29.9.2000 and Mathi Reddy proposed to execute a document on 30.9.2000 and left Chinaparimi. On the morning hours of 30.9.2000 the plaintiff came to know about the death of Mathi Reddy and after completion of funeral ceremony when the plaintiff demanded her share of the property, the defendants did not cooperate and hence she filed the suit for partition.
11. Defendant No. 1 does not dispute the claim of the plaintiff except denying the allegations and stating that she colluded with the 6th respondent. The stand taken by the 2nd defendant, who is the son of Mathi Reddy through his first wife is that though he admits partition between himself and his father and his brother Rajasekhar Reddy, his case is that his father Mathi Reddy was managing his properties also and the incomes were kept in the fixed deposits which is referred in the B schedule and that Mathi Reddy also promised that after his death, the 2nd defendant has to take the share of Rajasekhar Reddy. He further disputes the claim of the plaintiff for her share in the capacity of coparcener, but he does not specifically contend that he is in enjoyment of the plaint A schedule properties after the death of Mathi Reddy.
12. The stand taken by defendants 3 and 4 is that the plaint schedule properties are the exclusive properties of Mathi Reddy and plaintiff and defendants 1 to 6 are entitled to equal shares. 5lh defendant remained ex parte. The 6th defendant on her behalf and her children defendants 7 and 8 as guardian claims possession over the plaint schedule property. It is her case that though there were some estrangement immediately after her marriage between herself and her father, but subsequently Mathi Reddy changed his mind and executed a registered gift deed on 22.7.2000 conveying 5 acres 50 cents of land to her minor children and delivered possession of the property. It is also her case that late Mathi Reddy executed a registered Will on 4.8.2000 bequeathing the landed properties covered by A schedule giving life interest to her with vested remainder to defendants 7 and 8. So far as item No. 8 of plaint A schedule property the 1st defendant was given life interest and vested remainder to defendants 7 and 8. Thus, the contention of defendants 6 to 8 is that they are in possession and enjoyment of the plaint A schedule properties after the said gift deed and Will, and they are being managed by the husband of 6th defendant by name Anil Kumar.
13. The 9lh defendant Andhra Bank had taken a stand that it was unnecessarily impleaded.
14. Exs. P-1 to P-24 and Exs. R-1 to R-12 were marked. The learned Judge framed the following points for consideration at paragraph 11:
1. Whether the petitioners/defendants 6 to 8 proved their prima facie possession over the plaint A schedule landed properties and whether any irreparable injury would be caused to them in the event temporary injunction is not granted in their favour?
2. Whetherthere are any necessitating circumstances to appoint a Receiver in this case so as to take possession of the plaint A schedule landed properties to auction the leasehold rights and to deposit the amount in the Court?
3. To what relief?
The learned Judge proceeded to discuss with the respective contentions of the parties and also the documentary evidence placed before the Court commencing from paragraphs 12 to 21 and ultimately came to the conclusion that the applications are to be dismissed, but in the light of the facts and circumstances, directed the 2nd defendant-1st defendant to deposit Rs. 60,000/- for every agricultural year commencing from 2004-05 as a condition to cultivate the plaint A schedule lands and further directions already specified supra.
15. On a careful analysis of the facts and circumstances, the learned Judge, no doubt, made certain observations relating to certain of the documents, which would touch the merits and demerits of the matter. It is needless to say that these prima facie findings had been recorded only with a view to arrive at a conclusion whether these applications praying for the relief of temporary injunction or appointment of Receiver to be allowed or to be dismissed in the facts and circumstances of the case. It is needless to say that the learned Judge to dispose of the suit being uninfluenced by any of such findings made while deciding interlocutory applications.
16. As far as the relief of temporary injunction is concerned, in the light of the facts and circumstances since no prima facie case for grant of temporary injunction had been made out especially in a suit of this nature, being a suit for partition, negativing the relief of temporary injunction cannot be found fault with. However, submissions at length were made that in the light of the admitted facts even if the direction issued by the learned Judge taken to be just and convincing, being a suit for partition, the amount directed to be deposited is on the lower side if the extent of the property to be taken into consideration.
17. In a partition action, normally appointment of Receiver not to be resorted to lightly without considering the entire facts and circumstances. It is also needless to say a party praying for appointment of Receiver must make out a case that such party was not only kept out of possession of the properties unauthorisedly, but the party in possession had been indulging in acts of waste or for other akin or like reasons. If prima facie the plaintiff has excellent chance of succeeding in the suit and there being no specific denial relating to his or her share in the plaint schedule properties, the conduct of the opposite party in keeping the plaintiff out of possession may be a relevant consideration and even in such a case instead of straight away appointing a Receiver, appropriate suitable directions may be given in this regard.
18. In Ch. Rajamma v. P.V. Reddy the Division Bench of this Court at paragraphs 9 to 12 observed as follows:
In Govind v. Vallabh Rao AIR 1920 Bombay 321, while considering the question as to when a receiver could be appointed in a partition suit, a Division Bench of Bombay High Court expresses the view:
...special circumstances will have to be proved before the Court will be entitled to appoint a receiver. Generally speaking, when an application is made to the court to take the property into its hands by appointing a receiver, the plaintiff must prove that prima facie, he has a very excellent chance of succeeding in establishing the case made out in his plaint, and in the next place, he must satisfy the court that the property in possession of the opposite party is in danger of being wasted.
While holding that both the tests - the excellent chance of the plaintiff succeeding and the satisfaction of the Court that the property in the hands of the opposite party is in danger of being wasted - must be cumulatively satisfied, the Division Bench also observed that the share of the defendant itself would be ample security for any claim which the plaintiff would be able to substantiate in the case for damages or under any other cause of action against the defendant. This view was followed by Beasley, C.J., in Krishan v. Nani Maruvalamma . The learned Chief Justice expressed the view that in a partition suit, a receiver should not be appointed without proof of waste or mis-management or apprehended fear of the same. After an exhaustive review of the case law bearing on the subject - both Indian and America - Ramaswami, J. of the Madras High Court in Krishnaswamy v. Thangavelu has observed that five requirements should be satisfied under Order 40, Rule 1 of the Code of Civil Procedure for the appointment of receiver. Even though the case in which Ramaswami, J., laid down the five requirements did not arise out of a partition suit, the principles enunciated by the learned Judge are very useful guidelines in the exercise of discretion for appointment of receivers. They are:
(1) The appointment of receiver is a matter in the discretion of the Court and the discretion shall not be exercised in an arbitrary or unsound manner;
(2) The Court should not appoint a receiver except upon proof by the plaintiff that prima facie he has got excellent change of succeeding in the suit;
(3) The plaintiff must show some emergency or danger or loss demanding immediate action and he should be clear about his right;
(4) The receiver should not be appointed if such appointment has the effect of depriving a defendant of a 'de facto' possession since that might cause irreparable wrong. If the property is 'in medio', that is to say, in the enjoyment of no one, the Court can appoint a receiver; and (5) If the conduct of the party seeking appointment of receiver is not free from blame, the Court shall not appoint a receiver.
A Division Bench of this Court in Venkataswami v. Kotayya has an occasion to consider the scope of Order 40, Rule 1 of the Code of Civil Procedure. The Division Bench held that a receiver can be appointed even on the application of a defendant if the circumstances warrant - to safeguard the interests of both the parties and to protect the properties. Explaining the scope of the words 'just and convenient' occurring in Order 40 Rule 1 Code of Civil Procedure, it was held:
What is required is that the Court should not merely exercise the power vested in it under this rule in an arbitrary or unregulated manner but according to legal principles after a consideration of the whole of circumstances of the case and the Court has a complete discretion in this matter.
The object of the rule relating to appointment of receiver is to ensure protection of the interests of the parties in regard to any property whether before or after decree.
From an analysis of Order 40, Rule 1 of the Code of Civil Procedure in the light of the case law in relation to partition suits, the following propositions may be deduced:
(1) The appointment of receiver cannot be resorted to lightly without considering the entire facts and circumstances.
(2) The party seeking the appointment of receiver must made out a case that he or she was not only kept out of possession of the properties unauthorisedly, but the party in possession is indulging in acts of waste leading to the inference of incompetence.
(3) If, prima facie, the plaintiff has excellent chance of succeeding in the suit, there being no denial with regard to his or her share in the plaint schedule properties, the conduct of the opposite party in keeping the plaintiff out of possession will be a relevant consideration for directing the opposite party to deposit a sum of money approximately representing the value of the yield pertaining to the share of the plaintiff pending disposal of the suit. Even in such circumstances, a receiver should not be appointed to oust the possession of the opposite party from the joint family properties. The protection of the properties and safeguarding of the rights of the parties shall be the twin objectives impelling the appointment of receiver.
Our attention is invited to the judgment of a learned single Judge of this Court in Chundru Srinivas Rao v. Chundru Venkata Rao 1992 (2) A.P.L.J. 212 in which it was observed:
Whenever major part of the landed property has been in possession of one person only then whether there is good crop or there is no crop ultimately the losers are the persons who are not in possession of any property at all. Besides, while the person who is not in possession of any of the properties suffers from lack of anything for maintenance there is every possibility of the person holding the property either misusing the amounts or screening the income that would be derived. Under these circumstances, this Court feels that appointment of a receiver also is one of the considerations that has to be taken into account and the Courts should not be carried away by the general principle enunciated in the old cases that in case of partition, there cannot be appointment of a receiver.
19. On a careful analysis of the facts, since the learned Judge had taken into consideration Exs. P-1 to P-24 and also Exs. R-1 to R-12 and recorded reasons and ultimately came to the conclusion that it would be just and proper to give a direction directing the 1st defendant to deposit Rs. 60,000/- for every agricultural year commencing from 2004-05 as a condition to cultivate the plaint A schedule lands and further in view of the fact that it is brought to the notice of this Court that the condition is being complied with and the suit itself is a part-heard one at present, this Court is of the considered opinion that the said direction to be confirmed and there is no need to further modify by enhancing the said amount especially in the light of the fact that the suit itself is at part heard stage. It is needless to say that the suit to be disposed of being uninfluenced by any of the prima facie findings, which had been recorded while making the common order while disposing of Interlocutory Applications specified supra.
With the above observation, both the Civil Miscellaneous Appeals are hereby dismissed. No costs.