Himachal Pradesh High Court
Haripriya Mann vs Smt. Sonal Chaudhri & Ors on 4 November, 2023
Author: Virender Singh
Bench: Virender Singh
1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA OMPs No. 472 and 473 of 2021 in C.S. No. 111 of 2021 .
Reserved on: 24.8.2023 Decided on: 4.11.2023 Haripriya Mann ...Applicant/Plaintiff of Versus Smt. Sonal Chaudhri & ors.
rt ...Non-applicants/Defendants ___________________________________________ Coram Hon'ble Mr. Justice Virender Singh, Judge Whether approved for reporting? yes ________________________________________________ For the Applicant/ Plaintiff : Mr. Ajay Kumar, Senior Advocate with Mr. Rohit, Advocate.
For the defendants/ non-applicants: Mr. Bhupender Gupta, Senior Advocate with Mr. Janesh Gupta, Advocate, for defendant No. 1.
Ms. Vandana Thakur, Advocate vice Mr. Surinder Saklani, Advocate, for defendant No. 2.
::: Downloaded on - 08/11/2023 20:31:14 :::CIS 2Virender Singh, Judge .
OMP No. 472 of 2021This order of mine shall dispose of the application, filed by the plaintiff, under Order 39 of Rules 1 and 2 CPC.
2. The plaintiff has filed the suit for partition rt by metes and bounds and for separate possession of the land known as 'Chander Cottage' bearing Khata No. 177, Khatauni No. 247, Hadbast No. 346/4, Khasra No. 1950, 1951 and 1952 (as per Jamabandi for 2013-2014) measuring 00-08-23 hectares situated in Mohal Bakrota, Tehsil Dalhousie, District Chamba and property known as Ekantika, comprised in Khata No. 4, Khatauni No. 4, Hadbast No. 90, Khasra No. 28, 29 and 30, measuring 00-08- 08 Hect. and Ekantika Estate comprised in Khasra Nos. 22, 23, 24 and 25, situated in Mohal DPF ::: Downloaded on - 08/11/2023 20:31:14 :::CIS 3 Jandighat, Tehsil Dalhousie, District Chamba, and property No. 20A, consisting of five apartments B-1, B-2, E-1, E-2, D-2, Friends Colony (West) New Delhi, .
and property known as Kamal Niwas, village Ralhan, Tehsil Dasuya, District Hoshiarpur, comprised in Khewat No. 36 Khatauni No 38, Hadbast No. 73, of Khasra No. 19/9/2 and 9/3 measuring 1 kanal 5 marla (hereinafter referred to as 'the suit land') and rt for rendition of accounts and partition/distribution of movable properties of late Lt. Col. Suraj Jit Chaudhri, and for permanent perpetual prohibitory injunction and declaration.
3. The suit has been filed on the ground that plaintiff and defendant No. 1 are the daughters of late Lt. Col. Suraj Jit Chaudhri, S/o Shri Sadhu Ram Chaudhri and are the co-owners in the joint legal and physical possession, having 1/4th equal share, in the suit land. The suit has been filed on the ground that plaintiff and defendant No. 1 have ::: Downloaded on - 08/11/2023 20:31:14 :::CIS 4 inherited the suit property, in equal shares, after the death of their father, who died intestate, on 17.6.2017.
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4. Defendant No.1 is the half-sister of plaintiff. The said property is stated to be held by the father of parties (plaintiff and defendant No. 1), as of HUF ancestral coparcenary properties and he was the Karta.
5. rt It has further been pleaded that in the revenue records, with respect to the property situated at Mohal Bakrota and DPF Jandrighat, name of father of plaintiff and defendant No. 1, has wrongly been shown as Surjit Singh S/o Shri Sadhu Ram Chaudhri, S/o Shri Gurdit Singh, whereas, his actual name in the records is Suraj Jit Singh Chaudhri, S/o Shri Sadhu Ram Chaudhri, S/o Shri Gurdit Singh. Similarly, the property at Mohal DPF Jandighat, Tehsil Dalhousie, District Chamba, was owned by late Lt. Col. Suraj Jit Singh Chaudhri, S/o ::: Downloaded on - 08/11/2023 20:31:14 :::CIS 5 Shri Sadhu Ram Chaudhri, S/o Shri Gurdit Singh.
The said property was bought by him from the sale proceeds of his other property, known as 'Oakvale', .
Club Road, Dalhousie, District Chamba.
6. Late Lt. Col. Suraj Jit Chaudhri died intestate, on 17.6.2017, at his residence, i.e. 20-A of New Friends Colony, New Delhi. He left behind his LRs plaintiff and defendant No. 1, as his only legal rt heirs, to succeed his entire estate, as well as, movable and immovable properties.
7. Explaining her relationship with defendant No. 1, it has been pleaded by the plaintiff that she is daughter of late Lt.Col. Suraj Jit Chaudhri @ Surjeet Singh, s/o Shri Sadhu Ram Chaudhri, S/o Shri Gurdit Singh, from his second wife, namely Rani. Except parties to the lis, no other legal heirs of Suraj Jit Chaudhri is there. After his death, plaintiff and defendant No. 1, have come in ::: Downloaded on - 08/11/2023 20:31:14 :::CIS 6 joint legal, as well as, physical possession, of movable and immovable properties.
8. According to the plaintiff, being members .
and coparceners of the HUF, consisting of their father, plaintiff and defendant No. 1, owned 1/3rd undivided share in the suit properties. 1/3rd of undivided share of Lt. Col. Suraj Jit Chaudhri has devolved upon the plaintiff and the defendants are rt owners to the extent of ½ undivided equal share, in the HUF ancestral coparcenary properties, mentioned in paras 1 and 2 of the plaint, and 1/4th undivided share in the property at Bakrota, which is HUF ancestral property of the plaintiff and defendant No. 1.
9. The above property was earlier owned by their grand father, Shri Sadhu Ram Chaudhri, except property, namely Ekantika Estate, which was bought out of funds, received from sale of ancestral property 'Oakvale', Club Road, Dalhousie. Grand ::: Downloaded on - 08/11/2023 20:31:14 :::CIS 7 father of the plaintiff and defendant No. 1 had also purchased the property in Friends Colony, New Delhi, vide sale deed, dated 12.10.1953, as Karta of .
the HUF. The said property is stated to be the property of HUF.
10. Sadhu Ram Chaudhri had two sons, of namely, Suraj Jit Chaudhri and Kamal Jit Chaudhri. Thereafter, the said property was rt partitioned between two brothers, on 3.10.1964. The portion, which had fallen to the share of father of the plaintiff, was given new number as 20-A Friends Colony, with the approval of the Municipal Corporation, New Delhi. Thereafter, Suraj Jit Chaudhri entered into a collaboration agreement, dated 30.4.1987 with one M/s Vantage Construction (P) Ltd, for development of his portion of the property, under which, he was held to be entitled, for 46% share in the newly built up portion and this way, Suraj Jit Chaudhri had got five ::: Downloaded on - 08/11/2023 20:31:14 :::CIS 8 apartments. One apartment is occupied by defendant No. 1, which has been given on rent to Smt. Sonia Singh. She has also given the history of .
the dispute with the Vantage Construction, which is stated to be pending in the Court of Additional District Judge, South East, Saket, New Delhi.
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11. In the litigation, pending in the aforesaid Court, the plaintiff has been pleaded to be one of the rt legal heirs of her father, late Lt. Col. Suraj Jit Chaudhri. After death of her father, plaintiff served legal notices on all the concerned authorities, not to attest the mutation, in favour of defendant No. 1, who had illegally started proclaiming herself, as owner of the suit property, on the basis of some alleged Will, of late Shri Suraj Jit Chaudhri, alleged to have been executed, in her favour.
12. Thereafter, defendant No. 1 had also moved an application, under Order 22 Rule 3 CPC, claiming herself to be the sole heir of late Lt. Col.
::: Downloaded on - 08/11/2023 20:31:14 :::CIS 9Suraj Jit Chaudhri, on the basis of some alleged Will, dated 1.6.2017, for being impleaded as legal heir of late Lt. Col. Suraj Jit Chaudhri. Plaintiff had .
also moved similar application, which was allowed.
13. Highlighting the poor health condition of the father of the plaintiff and defendant No. 1, it has of been pleaded that their father suffered a huge cerebral stroke in the year 2005 and then in the year rt 2006. In the year 2011, he again suffered a huge cerebral stroke, which resulted into paralysis.
Thereafter, he remained confined to bed and his movements were restricted to one room. Due to the cerebral stroke, Lt. Col Suraj Jit Chaudhri has lost his cognitive faculties and movements. He was not in a sound state of health or mind. These facts have been pleaded to show that the Will, allegedly executed by late Lt. Col. Suraj Jit Chaudhri, in favour of defendant No. 1, was not a consciously executed document.
::: Downloaded on - 08/11/2023 20:31:14 :::CIS 1014. In addition to this, it has been pleaded that he was not competent to execute the Will, in respect of share of plaintiff, in ancestral HUF .
properties. She has asserted that the said Will is null and void and not binding upon the rights of the plaintiff.
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15. Since the plaintiff does not want to keep the suit land in joint ownership and possession, as rt such, she has filed the present suit, seeking preliminary decree of partition and rendition of accounts, against defendant No. 1. She has also sought declaration to the effect that Will, dated 1.6.2017, purported to be executed by late Lt. Col.
Suraj Jit Chaudhri, is not null and void, and not binding upon the rights of the plaintiff.
16. Alongwith the said suit, the present OMP bearing No. 472 of 2021 has been moved with a prayer to restrain defendant No. 1, from alienating /transferring/creating any charge/changing the ::: Downloaded on - 08/11/2023 20:31:14 :::CIS 11 nature of the suit land, as well as, from realizing any rent or profits from the suit property, during the pendency of the suit.
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17. When put to notice, the suit has been contested by filing written statement, as well as, reply to the application, under Order 39 Rules 1 & 2 of CPC. In the written statement, defendant No. 1 has taken preliminary objections that the suit is not rt maintainable; suit is not legally and properly verified; suit is not valued for the purpose of court fee and jurisdiction; plaintiff is estopped by her own acts and conduct to file the present suit; the plaintiff is guilty of suppressing true and material facts and has not approached the Court with clean hands; and the suit is bad for mis-joinder and non-joinder of necessary parties.
18. The existence of HUF has also been disputed by pleading that both, the plaintiff and defendant No. 1 are half-sisters, being daughters of ::: Downloaded on - 08/11/2023 20:31:14 :::CIS 12 late Lt.Col. Suraj Jit Chaudhri, but, it has been denied that they are co-owners in joint legal physical possession, as alleged. The property situated at .
Mohal Bakrota, Tehsil Dalhousie, District Chamba, is stated to be not an ancestral property and as per the last Will, executed by late Lt. Col. Suraj Jit of Chaudhri, on 1.6.2017, the same is stated to have been devolved upon defendant No. 1.
19. rt Alleging the fact that the plaintiff has not disclosed the material facts, it has been pleaded that the suit property did not devolve upon late Lt.Col.
Suraj Jit Chaudhri by common male ancestral, but Rai Bahadur Dewan Chand Saini purchased the land, on the part of which, the house known as 'Chander Cottage' is situated. Rai Bahadur Dewan Chand Saini was father of Smt. Shanta Chaudhri, who was married to Sadhu Ram Chaudhri, and due to marriage of his daughter with Sadhu Ram Chaudhri, Rai Bahadur Dewan Chand Saini had ::: Downloaded on - 08/11/2023 20:31:14 :::CIS 13 included his son-in-law, as owner of half share.
Thereafter, 'Chander Cottage' and entire vacant land was owned, in equal shares, by Rai Bahadur Dewan .
Chand Saini and Sadhu Ram Chaudhri. After his death, half share of property, owned by Rai Bahadur Dewan Chand Chaudhri, devolved upon his two of sons, namely Prakash Chand Saini and Shri Ishwar Chand Saini, in equal shares. Thereafter, partition rt was executed on 3.10.1964 between Lt. Col. Suraj Jit Chaudhri and Kamal Jit Chaudhri. The entire half share of Shri Sadhu Ram Chaudhri was allotted to Lt. Col. Suraj Jit Chaudhri, who became exclusive owner of entire half share of Sadhu Ram Chaudhri.
Out of this entire half share, major portion has been sold, through Registered Deed of Sale, dated 2.6.2007, to Amrinder Singh, son of Shri Balwinder Singh. Thereafter, the vendee had been put in possession of the property, so sold. Said Amrinder Singh had not been arrayed as party, by the plaintiff, ::: Downloaded on - 08/11/2023 20:31:14 :::CIS 14 in the present suit. Remaining share of the property, namely 'Chander Cottage' , is stated to have been inherited by defendant No. 1, on the basis of Will, .
dated 1.6.2017, executed by her late father, Lt. Col.
Suraj Jit Chaudhri.
20. It is her further case that property No. 20- of A, is not ancestral, as the same was owned by Lt.
Col. Suraj Jit Chaudhri and was purchased by him, rt out of his own funds. The said property was orally gifted by Sadhu Ram Chaudhri, in favour of Suraj Jit Chaudhri and Kamal Jit Chaudhri. In this regard, mutation No. 1335, dated 16.3.1954 was also entered. These facts have been highlighted to show that the said property was not ancestral property, in the name of Suraj Jit Chaudhri. It is the case of defendant No. 1 that the entire suit property is not the joint HUF ancestral coparcenary property, as alleged.
::: Downloaded on - 08/11/2023 20:31:14 :::CIS 1521. On the basis of above facts, the application, under Order 39 Rule 1 and 2 CPC has also been contested.
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22. Thus, a prayer has been made to dismiss the suit, as well as, the present application.
23. The plaintiff has sought the relief of of partition, as well as, declaring the Will, allegedly executed by predecessor-in-interest of plaintiff and rt defendant No. 1, as null and void.
24. It is the specific case of defendant No. 1that suit property is not the HUF coparcenary property and according to her, the same was a self-
acquired property. The same was not HUF property, as such, her father had rightly executed the registered Will, in her favour.
25. The primary purpose of the provisions, under Order 39 Rules 1 & 2 CPC, is to preserve the subject matter of the lis, till the rights of the parties to the list are determined, in the trial of the suit. In ::: Downloaded on - 08/11/2023 20:31:14 :::CIS 16 other words, it can be said that it is a protective relief to preserve the subject matter of the lis, as it exists, on the date of filing of suit.
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26. In order to succeed in an application, under Order 39 Rules 1 and 2 CPC, the plaintiff/applicant has to pass triplicate test, i.e. of prima-facie case, balance of convenience and irreparable loss and injury.
27. rt It is no longer res-integra that all the three conditions must co-exist. If, out of three conditions, applicant fails to prove, prima-facie, any of the conditions, at this stage, the said fact would dis-entitle the party to claim the relief, under Order 39 Rules 1 and 2 CPC. On the basis of stand taken by plaintiff and defendant No. 1, in their pleadings, this Court would proceed to determine whether these three ingredients, exist in this case or not?
28. First of all, coming to the first ingredient, i.e. prima-facie case, this term has nowhere been ::: Downloaded on - 08/11/2023 20:31:14 :::CIS 17 defined, in the Code of Civil Procedure. But, according to the settled proposition of law, prima-
facie is a case, which requires mature consideration .
of the Court and is not liable to be thrown out, at the threshold, of the proceedings.
29. Considering the stand of the parties, one of thing is not in dispute that the plaintiff and defendant No. 1 are half-sisters. In such situation, rt plaintiff has asserted her claim, in the suit property, by alleging that the property was HUF coparcenary property, in which, during the life time of her father, she was having 1/3rd share and after his death, her share has now been increased to ½ share.
30. Not only this, the plaintiff has also sought declaration that the Will, allegedly executed by her father, in favour of defendant No. 1, is not consciously executed document, by her father. All these facts will be proved during the trial.
::: Downloaded on - 08/11/2023 20:31:14 :::CIS 1831. Considering the stand of defendant No.1, in which, she has denied that the property was HUF and she has supported the Will, allegedly, executed .
by her father, in her favour, this Court is of the view that the case set up by the plaintiff requires mature consideration and the same is not liable to be thrown of away, at the threshold of the proceedings, as it can be said that the plaintiff is having prima-facie, case rt in her favour.
32. So far as the second aspect of the case, with regard to irreparable loss and injury, is concerned, the plaintiff is stated to be the daughter of Lt.Col. Suraj Jit Chaudhri and this fact has not been denied by defendant No. 1, by admitting that plaintiff is her half-sister.
33. Lt. Col. Surjit Jit Chaudhri left behind only plaintiff and defendant No. 1, as his legal heirs.
Considering the stand, as set up by the plaintiff in the suit, by virtue of which, she has challenged the ::: Downloaded on - 08/11/2023 20:31:14 :::CIS 19 Will, allegedly executed by her father, in favour of defendant No. 1, if the subject matter of the present lis is not preserved, then, certainly, she will suffer .
irreparable loss and injury, which can not be compensated in terms of money.
33. So far as balance of convenience is of concerned, considering the stand of the parties, as taken in the plaint, as well as, in the written rt statement, one thing is clear that it has not been disputed by defendant No. 1 that plaintiff is daughter of late Lt. Col. Suraj Jit Chaudhri.
According to the stand, taken by the plaintiff and defendant No. 1, Lt. Col. Suraj Jit Chaudhri had not left any other legal heir, except plaintiff and defendant No. 1. In such situation, it can be said that balance of convenience also lies in favour of plaintiff, as Will, allegedly executed by late Lt. Col.
Suraj Jit Chaudhri has been disputed and it is for the propounder/defendant No. 1 to dispel the ::: Downloaded on - 08/11/2023 20:31:14 :::CIS 20 suspicious circumstances, which have been raised by the plaintiff, with regard to mental and physical condition of late Lt.Col. Suraj Jit Chaudhri, at the .
relevant time.
34. Considering all these facts, this Court is of the view that plaintiff is able to make out a case, of in her favour, under Order 39 Rules 1 & 2 CPC. As such, considering the primary purpose of the rt provisions of Order 39 Rules 1 & 2 CPC, to maintain the subject matter of the lis, during pendency of the case, it would be just and appropriate, for this Court to allow the applicant by directing the defendants not to alienate/create any charge/ encumber/change the nature of the suit property, during pendency of the present suit.
35. Accordingly, the application is allowed in the above terms.
36. Any of the observations, made hereinabove, shall not be taken as an expression of ::: Downloaded on - 08/11/2023 20:31:14 :::CIS 21 opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present application.
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OMP No.473 of 202137. The plaintiff/applicant, by virtue of the present application, filed under Order 40 Rule 1 of CPC, read with Section 94 and 151 of the CPC, for appointment of Receiver, in this case.
38. rt According to the applicant, she has filed the suit for partition by metes and bounds and for separate possession of the suit property. She has sought the relief on the ground that monthly rental income of the property, situated at New Delhi is around Rs. 2,50,000/- and on the basis of Will, which is being challenged by the applicant, in this case, non-applicant/defendant No. 1 is illegally receiving the rent from tenant Sonia Singh. It is the case of the applicant that in case non-
applicant/defendant No. 1 succeeds to receive the ::: Downloaded on - 08/11/2023 20:31:14 :::CIS 22 rent of the suit property, during pendency of the suit, then, the very purpose of filing the suit is likely to be defeated and the applicant will suffer .
irreparable loss and injury, which cannot be compensated, in terms of money.
39. On the basis of above facts, a prayer has of been made to appoint Receiver for the realization, management, protection, preservation and rt collection of rents, profits, etc., till final decision of the suit.
40. This application has been contested by defendant No. 1, by taking preliminary objections that application is not maintainable; and the applicant has no locus standi to file the present application.
41. On merits, the application has been contested, mainly on the ground that applicant is not entitled for the relief, as claimed for, in the application. According to the stand of the non-
::: Downloaded on - 08/11/2023 20:31:14 :::CIS 23applicant, plaintiff/applicant has no right, title or interest in the property.
42. On the basis of above facts, a prayer has .
been made to dismiss the present application.
43. Applicant, in the present case, has sought the appointment of Receiver. Appointment of of Receiver is considered to be one of the harshest remedies, as such, the said application is allowed rt only in extreme cases.
44. The object of the application is to protect the properties of the applicant and to safeguard the rights of the applicant. In this case, it is not in dispute that the parties to the present lis are sisters and plaintiff has filed the suit for partition and for mesne profits.
45. A Division Bench of this Court in "Dr. Yashwant Singh Parmar University of Horticulture & Forestry versus Sh. Narender Dhand and others", reported in 2016 ILR (H.P.) ::: Downloaded on - 08/11/2023 20:31:14 :::CIS 24 610, has elaborately discussed the provisions of Order 40 Rule 1 CPC. Relevant paragraphs 28 and 29 are reproduced as under:
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"28. The Madras High Court in the case titled as 28. The Madras High Court in the case titled as T. Krishnaswamy Chetty versus C. Thangavelu Chetty and others, reported in AIR 1955 Madras 430, has laid 615 down five tests and requirements, known as 'panch sadachar', for appointment of of Receiver, while interpreting what is 'just and convenient'. It is apt to reproduce paras 13 and 14 of the judgment herein:
rt "13. The five principles which can he 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 (27); - 'Tirath Singh v. Shromani Gurudwara Prabandhak Committee', AIR 1931 Lah 688 (28); - 'Ghanasham v. Moraba', 18 Bom 474 (7.9); -
'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 Madbab Rai', 5 All 556 (Z12); - 'Sidheswari Dabi v. Abhayeswari Dahi', 15 Cal 818 (213); - 'Shromani Gurudwara Prabandhak Committee, Amritsar v. Dharam Das', AIR 1925 Lah 349 (Z14); - 'Bhupendra Nath v. Manohar Mukerjee', AIR 1024 Cal 456 (Z15).
::: Downloaded on - 08/11/2023 20:31:14 :::CIS 25(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 All Khan', AIR 192.3 Uh 623 (Z16); - 'Firm of Raghubir Singh' Jaswant v. Narinjan Singh', AIR 1923 Lah 48 (217); - 'Siaram Das v. Mohabir Das', 27 Cal 279 (Z18);
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- 'Mahammad Kasim v. Nagaraja Moopanar', AIR 1928-Mad 813 (Z19); - 'Banwarilal Chowdhury v. Motilal', AIR 1922 Pat 493 (220). (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 of 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 (221); - 'Bidurramji v. Keshoramji', AIR 1939 Oudh 31 (Z22); - rt 'Sheoambar Ban v. Mohan Ban', AIR 1941 Oudh 328 (223).
(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 616 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).::: Downloaded on - 08/11/2023 20:31:14 :::CIS 26
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.
14. 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 of 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 rt 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 (Order 40, Rule 1) are fulfilled by the facts of the case under consideration - ('Ramachandrayya v. Nethi Iswarayya', AIR 1952 Hyd 139 (Z30).
29. The same principles have been laid down by the Madras High Court in the case titled as Muniammal versus P.M. Ranganatha Nayagar and another, reported in AIR 1955 Madras 571. It is profitable to reproduce para 19 of the judgment herein:
"19. The principles which should guide Indian Courts in the appointment of a Receiver are three in number. First of all, a plaintiff applying for the appointment of a Receiver must show 'prima facie' that he has a strong case and good tide to the property or a special equity in his favour and that the property in the hands of the defendant is in danger of being wasted; -'Muhammad Qasim Ravather v. Nagaraja Moopanar', AIR 1928 Mad 813 at p. 814 (Z13). It is not enough for the plaintiff to show that he has a fair question to raise ::: Downloaded on - 08/11/2023 20:31:14 :::CIS 27 as to the extent of the right alleged as in the case of a temporary 617 injunction, but he must go further and make out that he has a good 'prima facie' title requiring Court's protection and safeguarding pending litigation and which must be made out on the facts of that particular case.
'Guruswami Pandiyan v. S. K. P.
.
Chinnathambirar', AIR 1919 Mad 157 at p.
158 (Z14).
Secondly, where the property is in media that is to say, in the possession of no one, a Receiver can readily be appointed. But where any one is in possession under a legal claim strong & compelling reasons are necessary for interfering with such possession : - 'Sivaji Raja Sahib v.
Aiswariyanaudaji Sahib', AIR 1915 Mad 926 at p. 929 (Z15); AIR 1924 Mad 482 at p. 483 of (Z12). Thus the 'bona fide' purchaser of the property -'bona fides have to be presumed unless and until the contrary can be inferred - in dispute should not be disturbed by the appointment of a Receiver unless there is some substantial and rt compelling ground for such interference.
Where there is no apprehension of waste or danger a Receiver will not be appointed merely on the ground that the applicant apprehends difficulty in obtaining possession 'of properly in the event of success or in realising mesne profits or the opposite party is poor or a woman. Specific acts capable of being tested should be alleged 21 Mad IJ 821 (Z11); AIR 1915 Mad 926 (Z15). Violently stated vague allegations constitute no substitute for vacuum of facts.
Thirdly, an application for the appointment of a Receiver should always be made promptly and delay in making it is a circumstance unfavourable to such an appointment. But of course the matter should he considered judicially in all its aspects before being disposed of as there may be legitimate reasons for preferring an application after delay: -
Pattiuharakettu v. Mauavedan', AIR 1936 Mad 966 (Z1G). If all these conditions are satisfied, and it is found just and convenient to appoint a Receiver, the Court can exercise its discretion in favour of the applicant."
46. Judging the facts and circumstances of the present case, in view of the decision, as referred ::: Downloaded on - 08/11/2023 20:31:14 :::CIS 28 to above, this Court will now discuss the averments made in the application.
47. Relief, as claimed, in the application, has .
been sought mainly on the ground that the suit property, situated at Delhi, is fetching monthly rent of Rs.2,50,000/-, and on the basis of Will, which is of being challenged by the applicant, non-
applicant/defendant No. 1 is receiving the rent. As rt per the application, in case, she succeeds in receiving the rent, the very purpose of filing the suit, will be defeated and applicant will suffer, irreparable loss and injury.
48. The applicant has filed the suit for partition by metes and bounds, and for separate possession, as well as, for decree for rendition of accounts. Considering the fact that rendition of accounts has already been sought in the plaint, then, in the absence of any allegations, with regard to mis-management of the property in question, the ::: Downloaded on - 08/11/2023 20:31:14 :::CIS 29 relief, as sought in the application, cannot be given to the applicant. The applicant lacks material particulars about the alleged mismanagement.
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49. Considering all these facts, there is no occasion for this Court to allow the application.
Accordingly, the application is dismissed.
of
50. Any of the observations, made hereinabove, shall not be taken as an expression of rt opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present application.
(Virender Singh) 4.11.2023 Judge Kalpana ::: Downloaded on - 08/11/2023 20:31:14 :::CIS