Kerala High Court
Jaseela vs Rejila Beevi @ Rejila on 8 April, 2025
FAO NO.150/2024 1
2025:KER:33628
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
TUESDAY, THE 8TH DAY OF APRIL 2025 / 18TH CHAITHRA, 1947
FAO NO.150 OF 2024
ARISING OUT OF THE ORDER DATED 04.12.2024 IN
I.A.NO.4/2024 IN OS NO.43/2024 OF SUB COURT, ATTINGAL
APPELLANTS/COUNTER PETITIONERS 1 & 2/DEFENDANTS 1 & 2:
1 JASEELA
AGED 37 YEARS
W/O.MUBASH, HAJARA MANZIL, ANCHAL P.O,
THAZHAMEL, ANCHAL VILLAGE, PUNALUR TALUK,
KOLLAM DISTRICT, PIN - 691305
2 MUBASH
AGED 47 YEARS
S/O.IRAHIM KUTTY, HAJARA MANZIL,
ANCHAL P.O, THAZHAMEL, ANCHAL VILLAGE,
PUNALUR TALUK, KOLLAM DISTRICT, PIN - 691305
BY ADVS.
R.SUNIL KUMAR
A.SALINI LAL
JINU P. BINU
J.M.DEEPAK
RESPONDENTS/PETITIONER & COUNTER PETITIONERS 3 TO 7/
PLAINTIFF & DEFENDANTS 3 TO 7:
1 REJILA BEEVI @ REJILA
AGED 39 YEARS, W/O.SALIM, SALIM MANZIL,
PLOT NO.9, T.C.41/1548, SREENAGAR,
MANACAUD P.O, MANACAUD VILLAGE,
THIRUVANANTHAPURAM DISTRICT, PIN - 695009
FAO NO.150/2024 2
2025:KER:33628
2 REJIMON @ REJI
AGED 40 YEARS, S/O ABDUL VAHID, "CHINAB HAVELI',
VETTIYARA P.O, NAVAIKULAM VILLAGE, VARKALA TALUK,
THIRUVANANTHAPURAM DISTRICT, PIN - 695141
3 JAMEELA
AGED 37 YEARS, W/O HARIS, "ANUGRAHA",
KADAMBATTUKONAM, NAVAIKULAM VILLAGE,
VARKALA TALUK, PIN - 695141
4 SOUDA BEEVI
AGED 66 YEARS, W/O ABDUL VAHID, 'ANUGRAHA"
KADAMBATTUKONAM, NAVAIKULAM VILLAGE,
VARKALA TALUK, PIN - 695141
5 HARIS
AGED 39 YEARS, S/O.RAJAN, ANUGRAHA"
KADAMBATTUKONAM, NAVAIKULAM VILLAGE,
VARKALA TALUK, PIN - 695141
6 FAIZAL
FEDERAL BANK MANAGER, PARIPPALLY BRANCH,
KOLLAM DISTRICT, PIN - 691574
BY ADVS.
P.A.AYUB KHAN, R1
T.A.RAJEEV, R2
AMRITH M.J., R3 & R4
NIJOY P.K., R5
JOBI.A.THAMPI, R6
NIJI K.SHAHUL(K/1158/2010)
ARYA A.R.(K/1666/2018)
C.PRABITHA(K/528/2009)
REJOICE B.CHEMBAKASSERIL(K/941/2015)
RAHUL T.(K/003860/2024)
ISABELL MANOJ(K/003266/2023)
THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY
HEARD ON 24.01.2025, THE COURT ON 08.04.2025 DELIVERED THE
FOLLOWING:
FAO NO.150/2024 3
2025:KER:33628
JUDGMENT
Dated this the 08th day of April, 2025 The appointment of a Receiver in a suit for partition is challenged in this appeal.
2. The appellants are defendants 1 and 2 in O.S.No.43 of 2024 before the Subordinate Judge's Court, Attingal. The 1 st respondent is the plaintiff and respondents 2 to 6 are the defendants 3 to 7 in the said suit.
3. The 1st respondent (plaintiff) had filed I.A.No.4 of 2024 in O.S.No.43 of 2024 seeking to appoint a Receiver to manage the business in plaint A schedule property and collect rent. The said I.A. was allowed by the Sub Court, Attingal vide order dated 04.12.2024. The Official Receiver attached to the District Court, Thiruvananthapuram, was appointed as the Receiver. Appellants challenge the said appointment as illegal and unsustainable.
4. O.S.No.43 of 2024 from which the order impugned herein emanates is one among the many suits that are filed, disposed and pending at the instance of the family members of late Abdul Vahid. FAO NO.150/2024 4
2025:KER:33628 The said suits concern the substantial properties left by late Abdul Vahid and reflect the internecine disputes between the surviving family members comprising the wife, children of late Abdul Vahid, as well as third parties pertaining to said properties. The present suit in which the partition of plaint schedule A property was sought and a Receiver had been appointed, concerns the land having an extent of 54.06 Ares belonging to late Abdul Vahid situated in Navayikulam Village, on which an ice plant and wholesale fish market styled as ABV & Co. are situated.
5. Abdul Vahid died on 04.04.2023. On 05.04.2023, a suit for injunction, O.S.No.156 of 2023, was filed by the 1 st appellant, daughter of late Abdul Vahid before the Munsiff Court, Varkala, against 3rd and 5th respondents, who are the daughter and son-in- law of late Abdul Vahid. The said suit was later transferred to the Sub Court, Attingal and re-numbered as O.S.No.86 of 2024. Subsequently, O.S.No.40 of 2023 was filed before the Sub Court, Attingal, by respondents 3 and 4, daughter and wife of late Abdul Vahid, against the 1st appellant and 1st and 2nd respondents claiming ownership of specific properties based on an oral Will by late Abdul FAO NO.150/2024 5 2025:KER:33628 Vahid. Thereafter, O.S.No.51 of 2023 was filed by the 1 st appellant, arraying respondents 1 to 5 as defendants, seeking title and possession based on two settlement deeds of 2023. The 2 nd respondent, who is the son of late Abdul Vahid, filed a counterclaim in the said suit claiming possession. Thereafter, purportedly due to the cruelty meted out by the appellants upon the 4 th respondent, wife of late Abdul Vahid, the 1 st respondent has filed O.S.No.43 of 2024, seeking partition of properties and for a declaration that the two settlement deeds are not binding on her. It is in such a back drop that the Sub Court proceeded to consider I.A.No.4 of 2024 filed in O.S.No.43 of 2024 seeking the appointment of Receiver.
6. The learned Sub Judge vide the impugned order allowed I.A.No.4 of 2024 and appointed the the official Receiver to manage the relevant properties and run the business inter alia holding that the facts and circumstances disclose a strong prima facie case in favour of the 1st respondent (plaintiff) and that it would be unjust to allow the 1st appellant to continue realising the entire income from the plaint A schedule till the disposal of the suit. As regards the settlement deed No.563/2023 (Ext.A1) relied on by the 1 st appellant, FAO NO.150/2024 6 2025:KER:33628 the learned Sub Judge reached a prima facie conclusion that the signature therein is totally different from the signature of late Abdul Vahid in other documents and that a bare comparison by any prudent person can only lead to such a conclusion. The learned Sub Judge had also taken note of the fact that none of the parties had disputed that late Abdul Vahid had executed settlement deed No.1499/2014 and that thereafter he had unilaterally cancelled the same. The validity of the said cancellation, it was concluded, is a matter which is to be adjudicated upon, and till then, the appointment of a Receiver was required and justified. It was thus reasoned by the learned Sub Judge that in the facts of the case the harsh remedy of appointing a Receiver is required. Such appointment was also found to be in the interest of justice so as to protect the interests of all the stakeholders. The appellants assail the said appointment of the Receiver by the Sub Judge in this FAO.
7. Detailed counter affidavits/objections have been filed by respondents 1 to 4. Annexures R1 (1) to R1 (10) have been produced and marked by the 1st respondent to buttress their contentions while the 2nd respondent has relied on documents FAO NO.150/2024 7 2025:KER:33628 produced and marked as Exts.R 2 (a) to R2 (m).
8. Heard Sri.P.B.Krishnan, Senior Advocate, instructed by Sri.R.Sunil Kumar, Advocate for the appellants, Sri.P.A.Ayub Khan Advocate, for the 1st respondent, Sri.T.A. Rajeev, Advocate for the 2nd respondent, Sri.Amrith M.J. for 3 rd and 4th respondents, Sri.P.K.Nijoy, Advocate for the 5 th respondent and Sri.Jobi A. Thampi for the 6th respondent.
9. The learned Senior Counsel appearing for the appellants contended that the impugned order is illegal, against the law as well as the facts of the case and is liable to be interfered with. It is contended that the impugned order was rendered without proper appreciation of the documents produced from the side of the appellants, which numbered 26, and none of the said documents, except one (Ext.A1), had been considered or discussed by the learned Sub Judge. Though it is a basic tenet required to be legally substantiated before proceeding to appoint a Receiver that the 1 st respondent (plaintiff) should independently prove her right over the plaint schedule property, the learned Sub Judge failed to note that the 1st respondent had miserably failed in this respect. Not only had FAO NO.150/2024 8 2025:KER:33628 the 1st respondent not proved her title, she had not even pleaded any right over the plaint A schedule property. To make it even more legally difficult for the 1st respondent, she had very specifically relinquished her claim over the relevant property or rather had admitted that she had no right over the plaint A schedule property in her pleadings in an earlier proceeding. This was done by her in the written statement, which she had filed in O.S.No.51 of 2023 initiated by the 1st appellant. This most crucial document was overlooked by the Sub Judge. The said contention, which had been put forth by the appellants, was not even mentioned by the Sub Judge in his order, nor was the relevant document cared to be marked in evidence. It is contended by the learned Senior Counsel that the learned Sub Judge also committed a very basic error in failing to take note of the arrangement that had been put in place by late Abdul Vahid while he was alive for running the ice plant that is situated in the plaint schedule property. The ice plant, which was a business which required daily investment, was being run by late Abdul Vahid by executing a partnership deed with two others from outside the family. Subsequent to the death of Abdul Vahid, the appellants FAO NO.150/2024 9 2025:KER:33628 entered into a partnership deed with the said persons and has been conducting the ice plant. The said aspect was not appreciated by the Sub Court, and even the partnership deed produced by the appellants was not marked. Insofar as the partnership business in the plaint schedule property was being run with the help of partners who were not members of the family, they were necessary parties to the petition. However, overlooking the specific contention, pleaded and argued in this respect, the learned Sub Judge appointed a Receiver when the application for such appointment itself was not maintainable. The 1st appellant holds the licence for operating the ice plant situated in the plaint schedule property, and she also possesses the FSSAI licence to run the same. The certificate issued by the Pollution Control Board had also been issued in the name of the 1st appellant. It had been the specific contention of the appellants that A schedule property constitutes their absolute property and it was not partible. The learned Senior Counsel contended that the Sub Court failed to appreciate the cardinal principle that appointing a Receiver is an extreme step that should be undertaken with great caution and circumspection. The fact that the Receiver can be FAO NO.150/2024 10 2025:KER:33628 appointed only when there is an imminent danger to the property was also overlooked. The Sub Court did not take proper note of the fact that there was no dispute regarding the conduct of the ice plant and the possession of the ice plant had been with the 1 st appellant all along, and the business of the ice plant was being actively conducted by her. The 1st appellant could not have been deprived of such possession by appointing a Receiver. Thus, the cardinal principle that a person who is in possession of the property cannot be dispossessed by appointing a Receiver was overlooked by the Sub Court. The impugned order is fit to be set aside on the said count alone. The Sub Court ought to have appreciated the fact that in O.S.No.40 of 2023, which is a suit for partition between the same parties and pending consideration before the same court, four properties had been scheduled as partible properties, whereas in O.S.No.43 of 2024 in which Receiver had been appointed vide the impugned order, only two properties belonging to the appellants had been scheduled. The said very fact itself would reveal that O.S.No.43 of 2024 had been filed and was being pursued by the 1 st respondent with oblique motives. As regards the contentions put FAO NO.150/2024 11 2025:KER:33628 forth on the basis of the earlier settlement deed executed by late Abdul Vahid and which was subsequently cancelled, the learned Senior Advocate vehemently contended that the same was only a gift deed which was not accepted and hence was cancelled soon after its execution within seven months. Moreover, even assuming that the cancellation deed is held to be void by the court in the separate pending litigation, the plaintiff who is not the beneficiary under the said settlement deed cannot aspire to obtain any right over the properties. This crucial aspect, which evidenced the total lack of legal right in the 1 st respondent to seek appointment of a Receiver, was also overlooked by the Sub Court. The learned Senior Counsel also strenuously challenged the conclusions arrived at by the Sub Court based on the signature in the Ext.A1 document, terming that the same differs from other documents. It was contended that the trial court had not specifically stated as to which document had been compared for reaching such a conclusion, and had overlooked the fact that on the very next day, after executing Ext.A1 settlement deed in favour of the appellants, late Abdul Vahid had proceeded to the District Collector's Office in connection with FAO NO.150/2024 12 2025:KER:33628 the acquisition of property regarding National Highway and had affixed a signature to the said document, which is very much similar to that in Ext.A1. Thus it is not as if that Abdul Vahid was in a coma or even a condition where he couldn't move around. Even though the appellants had produced the said document after obtaining the same under the Right to Information Act, the Sub Court had failed to appreciate the same and did not even choose to mark the said document. Bank account transactions revealing late Abdul Vahid transferring money to the 1 st appellant through cheques evidence that he was capable of reasoning and also physically able to do such transactions. The 1 st respondent (plaintiff) had thus failed to independently prove her right over the Plaint A schedule property for appointing a Receiver. She had not proved her title, nor had she pleaded any right over the plaint schedule property. The earlier written statement filed by her in O.S.No.51 of 2023 contained her own admission that she had no right over the plaint schedule property. All these crucial aspects were overlooked by the learned Sub Judge. Reliance is placed on the dictum laid down in T.Krishnaswamy Chetty v. C.Thangavelu Chetty and others [AIR FAO NO.150/2024 13 2025:KER:33628 1955 Mad 430]; S.Saleema Bi. v. S.Pyari Begum and another [AIR 2000 SC 3513]; Mrs.S.Karpagam v. R.Shanmugam [2000 Mad LJ (2) 768] and in Paramanand Patel (Dead) by L.R. and another v. Sudha A. Chowgule and others [2009 (2) KLT Suppl. 684 (SC)] and K.Sandhya v. K.K.Sivakumar [2015 SCC OnLine Ker 36512], to buttress the contentions put forth and it is submitted that the impugned order appointing a Receiver may be set aside.
10. Per contra, the learned counsel appearing for the 1 st respondent contended that the FAO is not maintainable either in law or on facts and that the attempt was to bypass the remedy available by approaching the District Court. It is also contended that the appellants had started to set up another fish market adjoining the scheduled properties in order to harm the present fish market functioning on the plaint schedule properties, which had devolved on the legal heirs of late Abdul Vahid. The contention that the appellants are exclusively managing the ice plant and fish market is vehemently refuted, and it is stated that the appellants had not invested any amount in the development of the fish market. The learned counsel terms the purported licences and certificates relied FAO NO.150/2024 14 2025:KER:33628 on by the 1st appellant as acquired through unethical means with the help of political leaders and forged documents. It is contended that the same does not negate the rights of the other legal heirs of late Abdul Vahid. The claim that the appellants have a valid licence to operate the ice plant is termed to be false, and the licence had all along been in the name of late Abdul Vahid and the same had expired. As regards the disclaimer of rights in the written statement filed by the 1st respondent in O.S.No.51 of 2023 and heavily relied on by the learned Senior Counsel to contend that the said admission takes away the prima facie right of the 1st respondent to seek appointment, it is contended by the learned counsel for the 1 st respondent that the same was against the instructions placed by her with her lawyer and the said error already stands rectified. Reliance is placed on the dictum laid down in Veena Singh (dead) through LR v. District Registrar and another [2022 KHC 6530] wherein it has been held that interpretation of the term ' execution' under the Registration Act has to mean that a person has signed a document after having fully understood it and consented to its terms. Reliance is also placed on the dictum in Kasturi Bai and others v. Anguri FAO NO.150/2024 15 2025:KER:33628 Chaudhary [(2001) 3 SCC 176]; Mary and others v. Biju Sebastain [2010 (3) KHC 189]; Jambagavalli Ammal v. Govindaraja Kandiar and another [AIR 1980 Mad. 103]; K.P.M.Saheed v. Aluminium Fabricating Company [1985 KLT 991]; and Kamal Chaudhary and another v. Rajendra Chaudharay and others [1976 KHC 2445].
11. The learned counsel appearing for the 2 nd respondent submitted that late Abdul Vahid and his second wife, viz., the 4 th respondent, had jointly executed Ext.R2 (a) settlement deed No.1499 of 2014 by virtue of which they had settled the petition schedule A property, including the ice plant and fish market, in favour of the 2nd respondent. It is contended that ever since the said settlement deed had been executed, the 2 nd respondent had been in the ownership and possession of item No.1 properties of Schedule 1 of the settlement deed. However, later on 28.03.2015, the said Settlement deed was unilaterally cancelled by its executants by executing Ext.R2 (b) cancellation deed bearing No.533 of 2015 without the knowledge or concurrence of the 2 nd respondent. Subsequently, O.S.No.51 of 2023 was filed by the 1 st appellant FAO NO.150/2024 16 2025:KER:33628 before the Sub Court, Attingal, against all the respondents seeking a decree of declaration of title and consequential prohibitory injunction staking a claim that late Abdul Vahid had executed a settlement deed No.563/2023 in her favour pertaining to the relevant properties. It is contended that the cancellation of the settlement deed unilaterally is per se illegal and has no legal sanctity and support, and that the 1st appellant cannot claim any title or right over the plaint schedule property on the strength of the settlement deed No.563/2023. It is also contended that the 2 nd respondent is entitled to procure a declaration that the settlement deed No.563/2023 is not binding on him and on the plaint schedule property. He has hence filed a counterclaim Ext.R2 (e) in O.S.No.51 of 2023 inter alia staking his claim over the properties. The 2 nd respondent has also filed O.S.No.218 of 2023 before the Munsiff Court, Varkala, seeking a perpetual prohibitory injunction against the 1 st appellant with respect to the relevant properties. The principal thrust of the contentions of the 2nd respondent thus is that the cancellation deed whereby the earlier settlement deed No.563/2023 had been cancelled is not sustainable in law. Reliance is placed on the dictum FAO NO.150/2024 17 2025:KER:33628 laid down in Arun C.A. v. Inspector General Department of Registration, Vanchiyoor [2024 KHC Online 7254], and it is contended that unilateral execution of a cancellation deed to cancel the gift is impermissible under the Muslim law. It is submitted by the learned counsel for the 2nd respondent that though the appointment of a Receiver was an opportunity to amicably settle the family issues, the appellants are not amenable to the same, and it is alleged that on the very next day of the impugned order, the appellants had with the help of some anti-social elements trespassed into the ice-plant and forcibly taken possession of the same from the 2nd respondent. The learned counsel for the 2 nd respondent thus contended that the impugned order of the Sub Court appointing a Receiver during the pendency of the suit is valid and legal. It is just, proper and highly necessary in the interest of justice that the administration of the business of the fish market and the ice plant should be carried out by the Receiver during the pendency of the various litigations initiated by the parties.
12. The learned counsel appearing for the 3 rd and 4th respondents placed reliance on the counter affidavit filed and FAO NO.150/2024 18 2025:KER:33628 submitted that though late Abdul Vahid and the 4 th respondent had executed a settlement deed in the year 2014, owing to a surgery that the former had to undergo, subsequently, when he found himself hale and hearty, the said settlement deed had been cancelled by executing a cancellation deed. It is contended that from the year 2022, late Abdul Vahid had been suffering from severe neurological issues, which had left him incapacitated and unable to manage his affairs. It was the 3 rd respondent, along with her husband, the 5th respondent, who was residing with late Abdul Vahid and the 4th respondent's wife at the house at Kadambattukonam assisting and taking care of his needs. It is submitted that O.S.No.40 of 2023 was filed by respondents 3 and 4 before the Sub Court, Attingal based on an oral Will by late Abdul Vahid whereby he had declared that all his other legal heirs had been duly given whatever assets he had and that the rest of his properties are to be settled in the name of the 3rd respondent. Thereafter, O.S.No.51 of 2023 had been filed by the 1 st appellant before the Sub Court, Attingal, seeking a declaration of title and possession based on the purported settlement deeds of the year 2023. It is submitted by the learned FAO NO.150/2024 19 2025:KER:33628 counsel for the 3rd and 4th respondents that O.S.No.40 of 2023, O.S.No.51 of 2023 and O.S.No.86 of 2024 are all being tried together and are pending. He submits that while late Abdul Vahid was alive, his wife viz., the 4 th respondent, was by his side every moment, and if late Abdul Vahid had any plans to execute another settlement deed, the first person to know about the same would have been the 4th respondent. However, the settlement deed Nos.563/2023 and 564/2023 were executed while late Abdul Vahid was not in a position or capacity to even write his own name let alone execute settlement deeds. It is contended that in none of the new settlement deeds any life interest has been retained for the 4 th respondent, who is the mother of the children of late Abdul Vahid, who is now fighting the suits, which is strange and highly improbable. It is thus submitted that the settlement deeds are the outcome of a conspiracy and fraud by the appellants to appropriate the properties of late Abdul Vahid. It is alleged that the appellants have basically stolen the properties mentioned in A and B schedules and that the A schedule property is the only income-generating asset. The 4th respondent is an ailing old woman without any FAO NO.150/2024 20 2025:KER:33628 income, and after the death of her husband, she is left with no other option to sustain herself other than depending on the income from the A schedule property. The condition of the 4 th respondent is appalling, and the appellants have many a time expelled her from the house constructed by late Abdul Vahid. It has become difficult for the 4th respondent to maintain herself. It is hence contended that the appointment of a Receiver by the Sub Court is valid, just and equitable since it would ensure that the income from the property could be equally distributed till the pending litigations are decided. Appellants have failed to put forth a prima facie case regarding title or possession, and hence, the FAO is only to be dismissed. Analysis and Discussion:
13. Before proceeding to consider the contentions put forth by the parties, I deem it relevant to remind myself of the settled norms governing the appointment of a Receiver under Order 40 of the Code of Civil Procedure, 1908. It is trite that the appointment of a Receiver is discretionary and rests purely on the sound discretion of the Court. The lex classicus on the point is T.Krishnaswamy Chetty v. C.Thangavelu Chetty and others (supra), wherein the five FAO NO.150/2024 21 2025:KER:33628 principles described as the "paanch sadachar' to be followed by Courts exercising equity jurisdiction in appointing Receivers were pithily stated 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 .
(2) The Court should not appoint a receiver except upon proof by the plaintiff that prima facie he has a very excellent chance of succeeding in the suit.
(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 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.
(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 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 FAO NO.150/2024 22 2025:KER:33628 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. (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. The need for exercising caution in the process of appointment of a Receiver was also emphasised in T.Krishnaswamy Chetty (supra), holding as follows:
"In exercising its discretion the Court proceeds with caution, and is governed by a view of all the circumstances. No positive or unvarying rule can be laid down as to whether the Court will or will not interfere by this kind of interim protection of the property. Where, indeed, the property is as it were 'in medio', in the enjoyment of no one, it is the common interest of all parties that the Court should prevent a scramble, and a receiver will readily be appointed: as, for instance, over the property of a deceased person pending a litigation as to the right to probate or administration. But where the object of the plaintiff is to assert a right to property of which the defendant is in enjoyment, the case presents more difficulty; The Court by taking possession at the instance of the plaintiff may be doing a wrong to the defendant; in some cases an irreparable wrong. If the plaintiff should eventually fail in establishing his right against the defendant, the Court may by its interim interference have caused mischief to the defendant for which the subsequent restoration of the property may afford no adequate compensation."FAO NO.150/2024 23
2025:KER:33628 This view has been reiterated in a catena of decisions including Mary and others v. Biju P.Sebastain [2010 (3) KHC 189] by this Court wherein it has been held that the objective of appointing a Receiver is to preserve the subject matter pending litigation. The principles governing the appointment of a Receiver can thus be succinctly stated as follows:
"1. Courts Discretionary Power: The court has the discretion to appoint a receiver when it is deemed just and convenient to do so, based on the specific circumstances of the case.
2. Existence of a Prima Facie Case: The plaintiff must demonstrate a strong prima facie case, meaning they have a good chance of succeeding in the suit.
3. Protection of Property: The primary objective is to protect and preserve the property in dispute, ensuring it is available to satisfy the claims of the parties involved.
4. Risk of Damage and Loss: There must be a real risk of damage, misuse, or mismanagement of the property if a receiver is not appointed.
5. Avoidance of Deprivation of Possession: Generally, a receiver should not be appointed if it would deprive the defendant of their de facto possession, as if this could cause irreparable loss.
6. Conduct of Parties: The court should also consider the conduct of the parties who seek the appointment of a receiver."FAO NO.150/2024 24
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15. Having thus reminded myself of the essential principles governing the subject, I proceed to consider the contentions put forth by the parties. Although detailed submissions have been made relying on the documents produced and at times touching on the merits of the matter, I propose not to enter into intricate examination of inter se legal merits of the contentions regarding title and claims to such properties. The examination will be confined to the correctness of the order rendered by the learned Sub Judge on the touchstone of the five principles described as the 'paanch sadachar' which govern the exercise of the equity jurisdiction in appointing Receivers. I note that in Paramanand Patel's case, (supra) the Hon'ble Supreme Court had with respect to the documents relied on and evidence produced, opined as follows.
"Although, the learned counsel for the parties have addressed us at great length, and in fact we have been taken through the minutest details of the relevant and important documents filed and relied on by the parties, we are of the opinion that it would not be prudent on our part to discuss the same in great details."
I note that the same rationale applies to the case at hand too.
16. Of the five principles that ought to be weighed by the trial FAO NO.150/2024 25 2025:KER:33628 court before proceeding to appoint a Receiver, termed as Paanch sadachar and enumerated above, the principal thrust of the challenge put forth by the learned Senior Advocate on behalf of the appellants had been on point No. 2 viz., that the Court ought not appoint a Receiver except upon proof by the 1 st respondent/plaintiff that she has a prima facie case and an excellent chance of succeeding in the suit. It is contended that the contentions put forth by the plaintiff does not even reveal a prima facie case. Hence it assumes relevance to examine whether the 1st respondent/plaintiff has made out a prima facie case to sustain the application for appointment of a Receiver. Admittedly the 1 st respondent/plaintiff is a legal heir of the late Abdul Vahid. It is the specific case of the 1 st respondent that late Abdul Vahid had been directly running the business till his death and since the earlier settlement deed executed by him and 4th respondent had been cancelled by them, the plaint A and B schedule properties had reverted back to late Abdul Vahid and after his death they are open for partition as per the law applicable to the parties. This contention stands unassailed except for the subsequent settlement deeds of 2023 relied on by the FAO NO.150/2024 26 2025:KER:33628 appellants which are alleged to be forged document by all other siblings. Till the sustainability of the same is subjected to trial and evidence, the 1st respondent does have a prim facie case and a right to seek appointment of a Receiver. Though the claim of the 1 st appellant is that she has invested amounts for the ice plant nothing to even prima facie to prove the same had been produced. I note that the learned Sub Judge had considered settlement deed No.563/2023 relied on by the 1 st appellant while claiming exclusive rights over the plaint A schedule property and had prima facie concluded that the signature in the said document produced as Ext.A1 is totally different from the signature of late Abdul Vahid in other documents. The learned Senior Counsel had addressed me in extenso in this respect, challenging the correctness of the same, highlighting that the signature which had been relied on for comparison was those executed at fairly earlier periods of time and the executant could have been in a different physical disposition while executing Ext.A1. The conclusion of the learned Sub Judge that no expertise is needed to ascertain the variance in signature and that any prudent person can discern the same has been FAO NO.150/2024 27 2025:KER:33628 vociferously contested. I do not find any reason to interfere with the said prima facie conclusion arrived at by the trial Judge who had the benefit of making a comparison of documents. The correctness of the same would be open to scrutiny during the trial. Placing a prima facie reliance on the same while considering an application for the Receiver cannot be found fault with. The further reliance placed by the learned Judge is on the settlement deed No.1499/2014 stated to have been first executed and later cancelled by late Abdul Vahid. The learned Judge had concluded that the validity of subsequent cancellation is to be adjudged before considering the validity of any subsequent transfer, including the one vide settlement deed No.563/2023. The learned Judge had taken note of the contention that the revenue generated from the Plaint A schedule property is substantial and that the same needs to be safeguarded by appointing a Receiver till an adjudicated decision is arrived at with respect to the claim put forth by the parties basing on the respective documents. The learned Sub Judge had also taken into consideration the stand of the 4 th respondent who is the wife of late Abdul Vahid, that he was not in a condition to execute any deed FAO NO.150/2024 28 2025:KER:33628 during the period when Ext.A1 settlement deed is stated to have been executed. The purported suppression of the death of late Abdul Vahid in the plaint filed by the 1st defendant who had moved O.S.No.156 of 2023 before the Munsiff Court, Varakala, which was filed on 05.04.2023 that the very next day of the demise of Abdul Vahid had also apparently weighed with the learned Judge. All these aspects had led the Sub Judge to conclude validly that there existed a strong prima facie case in favour of the 1st respondent/plaintiff to seek the appointment of a Receiver, so as to secure the subject matter. The said conclusion arrived at cannot be termed as illegal or devoid of basis.
17. The next question to be considered is whether the appointment of Receiver had led to deprivation of de facto possession of the appellants thus making the appointment hit by the 4th 'sadachar' enumerated in T.Krishnaswamy Chetty's case (supra). Emphatic arguments were also placed by the learned Senior Counsel on the mandate that an order appointing a Receiver ought not be made where it has the effect of depriving a defendant of a 'de facto' possession, since that might cause irreparable wrong. FAO NO.150/2024 29
2025:KER:33628 The learned Senior Counsel had relied on the decision of this Court in K. Sandhya's case (supra) wherein this Court had affirmed an order of the trial court refusing to appoint a Receiver, holding that appointment would have had the effect of divesting the defendant's possession over the property. That was thus a case where the trial court had exercised its discretion against the appointment of a Receiver on the facts of the said case. In the said decision this Court had referred to the dictum laid down in Mrs.S.Karpagam v. R. Shanmugam (supra) and in Paramanand Patel (supra)] which reiterated the principles in T.Krishnaswamy Chetty (supra). Reliance is also placed on the dictum laid down by the Supreme Court in S. Saleema Bi v. S. Pyari Begum (supra), wherein the Hon'ble Supreme Court held that since the defendant was found to be in physical possession of the property in dispute, the Order of the High Court appointing a Receiver is unsustainable as it divests the possession of the defendant. In Paramanand Patel's case, the Hon'ble Supreme Court had held that the element of danger is an important consideration and ordinarily a Receiver would not be appointed unless a case has been made out which may deprive the FAO NO.150/2024 30 2025:KER:33628 defendant of a de facto possession for the said purpose, conduct of the parties would also be relevant. Thus it assumes relevance to ascertain whether there was any material placed before the trial court to evidence that the Appellants herein were in possession of the relevant plaint schedule properties and whether appointment of the Receiver would in effect amount to taking the possession away from them. The reliance placed by the appellant to contend that they are in possession of the property and the appointment of a Receiver will amount to depriving them of the same is the claim that they hold the licences with respect to the running of the ice plant situated in the Plaint schedule property viz., the license for operating the ice plant, the FSSAI license and the certificate issued by the Pollution Control Board. I find merit in the contention put forth by the counsel for the 1st respondent that the said documents which relate to the ice plant alone by itself does not by itself prove possession of the entire plaint A schedule properties. It also assumes relevance to take note of the fact that it is not just the possession of the plaint A schedule property that has relevance. The substantial revenue said to be daily generated by the ice plant and the fish market is also a valuable FAO NO.150/2024 31 2025:KER:33628 asset/ property over which the other legal heirs of late Abdul Vahid including the 1st appellant have an entitlement. Hence the day to day running of the ice plant and the fish market and the revenue generated therein assumes relevance in answering the question as to how the property is to be protected from danger and loss to subserve the interests of all during the pendency of the suit. Further, it is the specific case of the 2 nd respondent that on the very next day of the impugned order, the appellants had with the help of some anti-social elements trespassed into the ice-plant and forcibly taken possession of the same from the 2 nd respondent. The reliability of the said contention though is open to question, the learned Sub Judge had in this context apparently taken note of the 5 th ingredient of the paanch sadachar which pertains to conduct of the parties who seek the appointment of a Receiver. The learned Judge had in this context noted that the 5th respondent (6th defendant) who had been assisting the late Abdul Vahid in the conduct of the business had been attempted to be ousted on the very next day of the death of Abdul Vahid by filing a suit. It is relevant to note that over and above the fact that the appellants have not been able to independently FAO NO.150/2024 32 2025:KER:33628 substantiate their possession, it is trite that if the property is exposed to danger and loss and the person in possession has obtained it through, fraud or force it is the duty of the trial court to interpose by appointing a Receiver for the security of the property. I also note that by the very nature of the activity that was being carried on in the plaint A schedule property, the existence of an emergency or danger of loss which demanded immediate action, coupled with an element of danger, stands proved, justifying the appointment of a Receiver. It would be pertinent to reproduce the observations in Jambagavalli Ammal's case (supra):
"In a case which arises under Order 40 Rule 1 CPC, the primary thing which has to be looked into by a court before the wishes of the parties are acceded to is to see how best the suit properties could be preserved without being wasted. The responsibility in courts becomes all the more greater if there is a race between the two competing parties to possess the suit properties. In the instant case, the widow is claiming possession in her own right under the Hindu Succession Act. The defendants are claiming such possession under the Succession Act as legatees under the wills. These are matters which have to be got into and adjudicated upon finally after the trial court enters on a trial of the suit, hears parties, peruses the documents and renders its ultimate decision thereon.. till then it is imperative for course to see that the suit properties over which Such conflicting claims are projected, are not only preserved, but are kept without FAO NO.150/2024 33 2025:KER:33628 being wasted or without any prejudice being caused to any one of the parties to the litigation by any overt or covert act on the part of the other party to it. It is only to create a harmony and not to ferment disharmony that the intentment of Order 40 rule 1 CPC should be perpetrated. If the primary intention is to keep such harmony between the parties, then it would be necessary to disturb the possession of one of the parties to the suit over the suit properties and vest such possession in an independent body so as to safeguard the interests of all parties concerned."
Hence, the alleged deprivation of the 1 st appellant's (1st defendant) 'de facto' possession, cannot be termed as illegal or unjustified in the facts and circumstances of the case. As regards the appointment of the Official Receiver attached to the District Court, Thiruvananthapuram, as the Receiver by the Sub Court, rather than appointing the 4th respondent mother or any of the siblings, I find merit in the contention put forth by the 1 st respondent based on the dictum laid down by the Hon'ble Supreme Court in Kasturi Bai's case (supra) wherein it was noted that widow being an old lady cannot be entrusted with the task of collecting rent from tenants regularly, maintaining accounts of the collection and ensure proper maintenance of the structures etc. and that the other defendants in view of the allegations against them by the 1 st respondent/plaintiff FAO NO.150/2024 34 2025:KER:33628 cannot be entrusted with the work. The Hon'ble Supreme Court had in the said case affirmed the order of appointment of a third party Receiver.
Conclusion:
In view of the above discussion, there is no reason to interfere with the appointment of the Receiver. FAO is dismissed. No costs.
The Sub Court, Attingal, shall endeavour to dispose of O.S.No.43 of 2024 expeditiously. It is clarified that all questions are left open, and nothing mentioned herein above shall be taken as impacting the rights of any of the parties.
Sd/-
SYAM KUMAR V.M. JUDGE csl FAO NO.150/2024 35 2025:KER:33628 APPENDIX OF FAO 150/2024 RESPONDENTS' EXHIBITS Annexure R1(1) A true photocopy of the settlement Deed No. 1499/2014 Annexure R1(2) A true photocopy of the Cancellation Deed No 533/2015 Annexure R1(3) A true photocopy of the Settlement Deed No. 563/2023 Annexure R1(4) A true photocopy of the Settlement Deed No.564/2023 Annexure R1(5) A true photocopy of the plaint in O.S. No.40/2023 Annexure R1(6) A true photocopy of the plaint in O.S. No.51/2023 Annexure R1(7) A true photocopy of the plaint in O S No.43/2024 filed before the Sub Court, Attingal Annexure R1(8) A true photocopy of the IA No.4/2024 in O.S.No. 51/2024 Exhibit R2(a) The True copy of the Settlement Deed No. 1499/2014 dated 07.07.2014 of the Navaikulam S.R.O. Annexure R1(9) CERTIFIED COPY OF THE COMMON JUDGEMENT IN WP (C) 17517/2023 AND WP (C) 17583/2023 DATED 05/09/ 2024 Annexure R1(10) CERTIFIED COPY OF WRIT PETITION (C) No.37492/2024 (WITHOUT EXHIBITS) FILED BY THE PETITIONER FAO NO.150/2024 36 2025:KER:33628 Exhibit R2(b) The true copy of the Cancellation Deed No.533/2015 dated 28.03.2015 of Navaikulam S.R.O. Exhibit R2(c) The true copy of the plaint in O.S.No.51/2023 dated 27.05.2023 filed by the Appellant before the Sub Court, Attingal Exhibit R3(d) The true copy of the Settlement Deed No. 563/2023 dt.15.03.2023 of Navaikulam S.R.O. Exhibit R3(e) The true copy of the Written Statement along with Counter Claim dated 06.07.2023 in O.S.No.278/2023 on the file of the Munsiff Court Attingal filed by the 2nd respondent herein Exhibit R2(f) The true copy of the plaint along with schedule in O.S.No.218/2023 dated 16.05.2023 on the files of Munsiff Court, Varkala Exhibit R2(g) THE TRUE COPY OF THE TRI PARTY RENT DEED DATED 10.06.2023 EXECUTED BETWEEN THE 2ND RESPONDENT AND SALAHUDHEEN AND NAZERUDHEEN Exhibit R2(h) THE TRUE COPY OF THE LEGAL NOTICE DATED 29.10.2024 ISSUED TO NAZARIDHEEN BY THE COUNSEL FOR THE 2ND RESPONDENT Exhibit R2(i) THE TRUE COPY OF THE REPLY NOTICE DATED 11.11.2024 SENT BY THE COUNSEL FOR SALALUDHEEN AND NAZARUDHEEN Exhibit R2(j)(i) THE TRUE COPY OF LEVY RECEIPT BEARING NO. 59087 ISSUED BY BOARD FOR WELFARE FUND FOR KERALA LOADING AND UNLOADING WORKERS, THIRUVANANTHAPURAM DISTRICT, TO THE 2ND RESPONDENT FAO NO.150/2024 37 2025:KER:33628 Exhibit R2(j)(ii) THE TRUE COPY OF LEVY RECEIPT BEARING NO. 59088 ISSUED BY BOARD FOR WELFARE FUND FOR KERALA LOADING AND UNLOADING WORKERS, THIRUVANANTHAPURAM DISTRICT, TO THE 2ND RESPONDENT Exhibit R2(j)(iii) THE TRUE COPY OF LEVY RECEIPT BEARING NO. 59089 ISSUED BY BOARD FOR WELFARE FUND FOR KERALA LOADING AND UNLOADING WORKERS, THIRUVANANTHAPURAM DISTRICT, TO THE 2ND RESPONDENT Exhibit R2(j)(iv) THE TRUE COPY OF LEVY RECEIPT BEARING NO. 59090 ISSUED BY BOARD FOR WELFARE FUND FOR KERALA LOADING AND UNLOADING WORKERS, THIRUVANANTHAPURAM DISTRICT, TO THE 2ND RESPONDENT Exhibit R2(j)(v) THE TRUE COPY OF LEVY RECEIPT BEARING NO. 59096 ISSUED BY BOARD FOR WELFARE FUND FOR KERALA LOADING AND UNLOADING WORKERS, THIRUVANANTHAPURAM DISTRICT, TO THE 2ND RESPONDENT Exhibit R2(j)(vi) THE TRUE COPY OF LEVY RECEIPT BEARING NO. 59097 ISSUED BY BOARD FOR WELFARE FUND FOR KERALA LOADING AND UNLOADING WORKERS, THIRUVANANTHAPURAM DISTRICT, TO THE 2ND RESPONDENT Exhibit R2(j)(vii) THE TRUE COPY OF LEVY RECEIPT BEARING NO. 59098 ISSUED BY BOARD FOR WELFARE FUND FOR KERALA LOADING AND UNLOADING WORKERS, THIRUVANANTHAPURAM DISTRICT, TO THE 2ND RESPONDENT Exhibit R2(j) THE TRUE COPY OF LEVY RECEIPT BEARING
(viii) NO. 59099 ISSUED BY BOARD FOR WELFARE FUND FOR KERALA LOADING AND UNLOADING WORKERS, THIRUVANANTHAPURAM DISTRICT, TO THE 2ND RESPONDENT Exhibit R2(j)(ix) THE TRUE COPY OF LEVY RECEIPT BEARING FAO NO.150/2024 38 2025:KER:33628 NO. 59100 ISSUED BY BOARD FOR WELFARE FUND FOR KERALA LOADING AND UNLOADING WORKERS, THIRUVANANTHAPURAM DISTRICT, TO THE 2ND RESPONDENT Exhibit R2(k) THE TRUE COPY OF THE PLAINT DATED 24.05.2023 IN O.S.NO. 242/2023 ON THE FILE OF MUNSIFF'S COURT VARKALA Exhibit R2(l) THE TRUE COPY OF THE OBJECTION DATED 26.06.2023 FILED BY THE 2ND RESPONDENT HEREIN AGAINST THE I.A.NO.1/2023 IN O.S.NO.242/2023 ON THE FILE OF MUNSIFF'S COURT, VARKALA Exhibit R2(m) THE TRUE COPY OF THE MUTATION APPEAL NO.2424/2024 DT.03.09.2024 PREFERRED BY THE 2ND RESPONDENT BEFORE THE RDO, THIRUVANANTHAPURAM