Delhi High Court
Usha Subramaniam And Anr. vs Daljit Kumar Bhandari And Ors. on 25 April, 1994
Equivalent citations: 1994IIAD(DELHI)749, 54(1994)DLT628, 1995 A I H C 4831, (1995) 1 CURLJ(CCR) 209 (1994) 54 DLT 628, (1994) 54 DLT 628
JUDGMENT Sat Pal, J.
(1) This is an application filed on behalf of the plaintiff under Order 40 Rule I read with Order 39 Rules 1 & 2 and Section 151 of the Code of Civil Procedure for appointment of a Receiver with regard to the property bearing House No. 224, Jor Bagh, New Delhi.
(2) Briefly stated the facts of the case are that the property bearing house No.224, Jor Bagh, New Delhi (in short the suit property) was owned by Shri G.L.Bhandari who died on 18/12/1958. Shri G.L. Bhandari left behind his wifeSmt. Shakuntala Bhandari, mother Smt. Kulwanti, two daughters (who are plaintiffs 1 & 2 in this suit), three sons, namely, Shri Daljit Kumar Bhandari (defendantNo. 1 herein), Shri Ranjit Kumar Bhandari (defendant No. 2 herein) and Shri Dalip Kumar Bhandari. Smt. Kulwanti died on 18.12.65 and Shri Dalip Kumar Bhandari died on 29.4.1978. Defendant No. 3, namely, Shri Shailendra Bhandari is the son and defendant No. 4, namely, Smt. Gayatri Lamba is the daughter of late Shri Dalip Kumar Bhandari.
(3) The case of the defendants is that after the death of Shri G.L. Bhandari, Smt.Shakuntala Bhandari filed a suit No. 68/59 seeking declaration that she was the owner of the suit property. It is alleged by the defendant No. 1 that the plaintiffs were also imp leaded as defendants in the said suit and after no objection was filed by the plaintiffs, the defendants 1 & 2 and late Shri Dalip Kumar Bhandari who is the father of the defendants 3 and 4, the suit was decreed in favor of Smt.Shakuntala Bhandari. Pursuant to the said decree, the suit property was mutated by the Land and Development Officer, New Delhi in favor of Smt. ShakuntalaBhandari.
(4) In terms of alleged lease agreement dated 15/12/1988, the suit property was let out by Smt. Shakuntala Bhandari through her attorney Shri Sarvjit Bhandari (defendant No. 5) to Dr. Hans Jurgen Axer initially for a period of three years and renewable for a further period of two years. It was further stated in the lease deed that the rent would be increased by 12% for the 4th and 5th Calendar year respectively. It was also mentioned in the lease deed that the lessee had an option to renew the lease after a period of 5 years subject to an increase of rent of at least 15% of last paid rent in all for an additional period of two years. Though the period of 5 years lapsed on 31/12/1993, the suit property is still with thelessee, namely. Dr. Hans Jurgen Axer and in terms of the lease deed, he can continue as a lessee up to 31/12/1995.
(5) Mr. Banerjee, learned Counsel appearing on behalf of defendant No. 1submitted that Smt. Shakuntala Bhandari was the absolute owner of the suit property and she had executed a Will on 7/08/1974 and in terms of the Will defendants 1 to 4 were the beneficiaries with regard to the suit property and plaintiffs had no right, title and interest in the succession of the estate of Late Smt.Shakuntala Bhandari. He further submitted that in terms of the said Will defendantNo. 1 had been named the executor and he had already applied for the grant of the probate in the case bearing Probate Petition No. 55/1991. He, therefore, contended that the present application filed on behalf of the plaintiffs who had no right in the suit property was not maintainable.
(6) Learned Counsel for defendant No. 1 further submitted that the desire of the testator must be honoured and unless there was an application for removal of the executor in the Probate proceedings, he could not be removed. He, therefore,contended that the defendant No. 1 was the executor and since no application had been filed for his removal in the probate proceedings, he could not be removed. In support of his contention, learned Counsel placed reliance on a judgment of the Calcutta High Court in the case of Bali Ram Dote v. Bhupendra Nath Banerjee &Ors., and a judgment of Andhra Pradesh High Court in the case of Sri Raja Kakarlapudi Venkata Sudarsana Sundara Narasayyamma Guru(died) & Ors. v. Andhra Bank Ltd., Vijayawada b Ors., .
(7) Learned Counsel further submitted that a Receiver should be appointed only if the plaintiff had a prima facie good case. He submitted that since in the present case, the plaintiffs had not a prima facie very good chance of succeeding in the suit, a Receiver should not be appointed with regard to the suit property. He further submitted that in any case the suit property at present was in possession of the lessee and as such there was no justification to appoint a receiver. In support of this contention, learned Counsel placed reliance on two judgments of this Court in the cases of Rajeshwar Nath Gupta v. Administrator General & Ors., 35(1988)Delhi Law Times 88 and Prem Sagar Kumra v. Panna Lal, 1976 Rajdhani Law Reporter (note) 122 and a judgment of Bombay High Court in the case of Chandrashekhar Sidramappa Chinchansure v. Bhaurao Sidarmappa Chinchansure & Ors., .
(8) Mr. Chetan Sharma, learned Counsel appearing on behalf of defendant No.5 reiterated the submissions made by the learned Counsel for the defendant No. 1.He also drew my attention to the orders dated 20/12/1991 in terms of which the parties to the suit were restrained from alienating, transferring or encumbering or letting out the whole or any portion of the property in the suit without prior permission of the Court and the parties were also directed to maintain regular accounts of the income derived from the suit properties. He contended that in terms of the said order passed by this Court, the defendant No.5 had been maintaining regular accounts of the income derived from the suit property and he had already filed an affidavit on 16/09/1993 wherein the details of the income derived from the suit property and the amount of expenditure incurred thereon had been given. He further submitted that the defendant No. 5had already handed over the balance amount to the defendant No. 1 who was the executor in terms of the Will executed by Smt. Shakuntala Bhandari. Learned Counsel also submitted that in case of immovable property which was regularly fetching rent, there was no wastage or dissipation and the present case being of thisnature, there was no need of appointment of a receiver. In support of his contentions, learned Counsel placed reliance on a judgment of Madras High Court in the case of T. Krishnaswamy Chetty v. C. Thangavelu Chetty & Ors., and a judgment of this Court in the case of Rajeshwar Nath Gupta (supra).
(9) Ms. Mahajan, learned Counsel appearing on behalf of the plaintiffs submitted that late Shri G.L. Bhandari had left the suit property without any Will and as such the plaintiffs being daughters of late Shri G.L. Bhandari were entitled to their share in the suit property. She further submitted that the decree in S.No. 68/59 was obtained by fraud. She, therefore, contended that a decree obtained by fraud could be challenged at any stage as it was nullity. In support of this contention, Learned Counsel placed reliance on two judgments of the Supreme Court in the cases of S. C. Ferozi Lal Jain v. Man Mal & Anr., 1970, Rcr 375 Bahadur Singh v. Muni Subrat Dass and another 1969(2) Scr 432.
(10) Learned Counsel also submitted that the defendants could not be permitted to use an un probated Will. In this connection, she drew my attention to Section 213 of the Succession Act and submitted that the aforesaid Section created a bar to the establishment of any right under Will by an executor or a legatee unless probate or letters of administration of the Will had been obtained. She submitted that since the probate of the alleged Will of Smt. Shakuntala Bhandari had not been obtained by the defendants so far, the defendants could not claim any right under the saidWill. In support of this contention, learned Counsel placed reliance on a judgment of the Supreme Court in the case of Mrs. Heni Nolini Judah (since deceased) and after her Lr Mrs. Marlean Wilkinson v. Mrs. Isolyne Sarojbashini Bose & Ors., and a judgment of this Court in the case of Chiranjilal Shrilal Goenka (deceased) v.Jasjit Singh & Ors., 1993(27) Drj 103.
(11) Learned Counsel for the plaintiffs also submitted that the defendant No.1 who claimed himself to be the executor of the alleged Will of Smt. ShakuntalaBhandari, lived abroad for most of the period and as such he was not in a position to manage the suit property. She also drew my attention to the affidavits of defendant No. 5 filed on 27/07/1993 and 16/09/1993 and submitted that these affidavits clearly showed that the said defendant had failed to submit proper explanation of the amount alleged to have been incurred with regard to the suit property against the rent received by him. She further submitted that defendant No. 5 had failed to even produce the copies of the receipts for the amount allegedly deposited by him with the Income Tax Department on account of incometax and Wealth Tax payable in respect of the suit property. She further submitted that the defendant No. 1 had not even filed any document to show that he had taken any step to ensure as to whether the said amount of Income-tax and Wealth-tax was actually deposited by the defendant No. 5 with the Income Tax Deptt. She,therefore, contended that in the present case it was in the interest of justice that a receiver be appointed to preserve the suit property.
(12) Mr. Danial Latifi, learned Senior Counsel appearing on behalf of defendants 2,3 and 4 submitted that the suit property was a valuable property and could fetch substantial amount in case it was placed under the charge of a Receiver. He also submitted that the share of the defendants 2, 3 and 4 together was much more than the share of defendant No.1 and as such the suit property could not be allowed to remain under the charge of the defendant No. 1 particularly when defendant No.2,3 and 4 were not satisfied with the manner in which the said property was being preserved by the defendant No. 1. It may be pointed out here that defendant No.2 has also filed an affidavit on 3/01/1994 and in this affidavit it has been stated that defendant No. 1 was admittedly a Nri and was hardly present in Delhi as was evident from his various affidavits. It has further been stated in this affidavit that in these circumstances a receiver must be appointed to remove the tenants and to take possession of the suit property which had to be sold.
(13) I have given my thoughtful consideration to the submissions made by learned Counsel for the parties and have perused the records. Admittedly the probate has not been obtained by the defendants so far with regard to the Will of late Smt. Shakuntala Bhandari. In view of Section 213 of the Succession Act and the law laid down by the Supreme Court in the case of Hem Nolini Judah (supra) no right as an executor can be established in any Court unless probate or letter of administration have been obtained of the Will under which the right is claimed. The right of defendant No. 1 who is the executor in respect of the Will of late Smt.Shakuntala Bhandari, therefore, cannot be accepted as exclusive right to preserve the suit property.
(14) The Madras High Court in the case of T.Krishnaswamy Chetty (supra)laid down five principles which have to be kept in mind while appointing receivers.The aforesaid principles were followed by a learned Single Judge of this Court in the case of Rajeshwar Nath Gupta (supra). One of these principles is that 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. It is true that in the present case it cannot be said at this stage that the plaintiffs had prima facie very excellent chance of succeeding in the suit as the plaintiffs had allegedly given no objection in suit No.68/59 and thereafter the said suit was decreed in favor of Smt. Shakuntala Bhandari and it was declared that Smt. Shakuntala Bhandari was the owner of the suit property. Whether the said decree was obtained by Smt. Shakuntala Bhandari by fraud is yet to be proved in this case.
(15) However, another principle to be kept in mind while appointing the receiver is that 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 seeks 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. Admittedly in the present case the property is in possession of the lessee, namely, Dr. Jurgen Axer who by his letter dated 30thNovember, 1993 had already exercised his option to renew and extend the lease agreement with an increase of rent and hire charges of 15% for a period of two yearsw.e.f. 1.1.94. From the affidavit of the defendant No. 1 filed on 15.9.93, it is also clear that the defendant No. 1 was aboard for a period of 7 months and 15 days in 1993and again he was not in India from 1/01/1994 to 2 9/01/1994. Further the defendant No. 5 Along with his affidavit filed on 16/09/1993 has annexed a statement of income and expenditure of the Estate of late Smt. Shakuntala Bhandari up to 29/03/1993 and in this statement certain payments are shown to have been made to Income Tax Deptt, but the learned Counsel for defendant No. 5 has failed to produce the receipts regarding those payments. Even defendant No. 1 has also not brought on record any document to show that he had approached the defendant No. 5 for production of those receipts. Besides, the defendants 2,3 and 4 who are beneficiaries in terms of the alleged Will executed by late Smt. Shakuntala Bhandari are also opposed for the preservation of the suit property by defendant No. 1 alone.
(16) Having regard to the aforesaid facts, I am of the view that it will be in the interest of justice that one of the plaintiffs and defendant No. 1are appointed joint Receivers of the suit property. Accordingly, I appoint Smt. Usha Subramaniam(plaintiff No. 1) and Cdr. Daljit Kumar Bhandari (defendant No. 1) as joint Receivers of the suit property. The receivers are directed to open a new joint Account in a Nationalised Bank and deposit the amount of rent to be recovered from the lessee in that Account. They are also directed to maintain regular accounts of the income derived from the suit property and the amount which will be paid to the Income Tax Deptt. and Municipal Corporation of Delhi as taxes against the suit property and any other amount to be incurred for repairs of the said property. The Bank Account will be operated jointly by the said two receivers. With this order application stands disposed of. The parties are, however, left to bear their own costs.