Aravind Rathnakaran v. P.M. Samyuktha and others (OS 79/2017)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN WEDNESDAY,THE 07TH DAY OF NOVEMBER 2018 / 16TH KARTHIKA, 1940 ## FAO.No. 167 of 2018 AGAINST THE ORDER IN I.A. NO.827/2018 IN OS 79/2017 of PRINCIPAL SUBORDINATE COURT, THALASSERY ## APPELLANT/RESPONDENT/PLAINTIFF: ARAVIND RATHNAKARAN, AGED 39 YEARS,S/O. K.P RATHNAKARAN, RESIDING AT GOVARDHAN HOLLOWAY ROAD, THALASSERY AMSOM,VADIKAKAM DESOM, THALASSERY TALUK, KANNUR-670 101 BY ADVS.SRI.K.R. AVINASH (KUNNATH) SRI.ABDUL RAOOF PALLIPATH SRI.E.MOHAMMED SHAFI ## RESPONDENT/PETITIONER/DEFENDANT NO.1: P.M. SAMYUKTHA, AGED 78 YEARS,W/O K.P. RATHNAKARAN, RESIDING AT GOVARDHAN, HOLLOWAY ROAD, THALASSERY AMSOM VADIKAKAM DESOM, THALASSERY TALUK, KANNUR-670 101 BY ADVS.SRI.T.KRISHNANUNNI (SR.) SRI.ASHWIN SATHYANATH SMT.MEENA.A. SMT.M.R.MINI SRI.ROHIT NANDAKUMAR SRI.VINAY MATHEW JOSEPH SRI.VINOD RAVINDRANATH THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 07.11.2018, ALONG WITH FAO.166/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: FAO Nos.166 & 167 of 2018 -2- IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN WEDNESDAY,THE 07TH DAY OF NOVEMBER 2018 / 16TH KARTHIKA, 1940 ## FAO.No. 166 of 2018 AGAINST THE ORDER IN I.A. NO.1792/2017 IN OS 79/2017 of PRINCIPAL SUBORDINATE COURT, THALASSERY ## APPELLANT/RESPONDENT/PLAINTIFF: ARAVIND RATHNAKARAN, AGED 39 YEARS,S/O. K.P RATHNAKARAN, RESIDING AT GOVARDHAN HOLLOWAY ROAD, THALASSERY AMSOM,VADIKAKAM DESOM, THALASSERY TALUK, KANNUR-670 101 BY ADVS.SRI.K.R. AVINASH (KUNNATH) SRI.ABDUL RAOOF PALLIPATH SRI.E.MOHAMMED SHAFI ## RESPONDENTS/RESPONDENTS/DEFENDANTS: 1 P.M.SAMYUKTHA, AGED 78 YEARS, W/O K P RATHNAKARAN, RESIDING AT GOVARDHAN HOLLOWAY ROAD, THALASSERY AMSOM, VADIKAKAM DESOM, THALASSERY TALUK, KANNUR 670101 2 SISTER RATHNAJYOTHI, D/O. K.P. RATHNAKARAN, C/O. K.P. SREEDHARAN, AGED 57 YEARS, 244 BOREWELL ROAD, NEAR WHITE FIELD, POST OFFICE, BANGALORE-560066 3 SISTER APARNA CHOUDARY, D/O. K.P. RATHNAKARAN, RESIDING AT GOVARDHAN HOLLOWAY ROAD, THALASSERY AMSOM, VADIKAKAM DESOM, THALASSERY TALUK, KANNUR-670101 BY ADVS.SRI.T.KRISHNANUNNI (SR.) SRI.ASHWIN SATHYANATH FAO Nos.166 & 167 of 2018 -3- SMT.MEENA.A. SMT.M.R.MINI SRI.ROHIT NANDAKUMAR SRI.VINAY MATHEW JOSEPH SRI.VINOD RAVINDRANATH THIS FIRST APPEAL FROM ORDERS HAVING COME UP FOR ADMISSION ON 07.11.2018, ALONG WITH FAO.167/2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **JUDGMENT** ## K.HARILAL, J. Since these appeals are directed against a common judgment, both the appeals are heard together and disposed of accordingly, by this common judgment. These appeals have been directed against the common order passed by the Sub Court, Thalassery in I.A. No.1792 of 2017 and I.A. No.827 of 2017 in O.S. No.79 of 2017. 2. The appellant in both the appeals is the plaintiff in O.S. No.79 of 2017 on the files of the Principal Subordinate Court, Thalassery and the respondents are defendants therein. The aforesaid Original Suit is one for setting aside a gift deed and consequential injunction. [The parties are referred to as in the Original Suit.] 3. The plaintiff is the son of deceased K.P. Rathnakaran and the first defendant, Smt.P.M. Samyuktha. The defendants 2 to 5 are his sisters. Along with the suit, he filed I.A. No.1792 of 2017 against the defendants 1 to 3, seeking an order of injunction restraining the defendants 1 to 3 from forcefully expelling him from the petition FAO Nos.166 & 167 of 2018 -4- schedule property or from the management of the hotel therein or from alienating or inducting third parties to the said properties. 4. The defendants filed objection to I.A. No.1792 of 2017, denying the averment that the plaintiff has been in possession and enjoyment of the property and hotel therein, for the last so many years. According to the 1[st] defendant, she is in possession and enjoyment of the petition schedule property and she has been running the hotel and bar in the petition schedule property. The 1[st] defendant filed I.A. No.827 of 2018 against the plaintiff, seeking an order of injunction, restraining him from entering into the petition schedule building or causing any obstruction to the smooth running and the management of the business activities therein. 5. The plaintiff, who is the respondent in I.A. No.827 of 2018 filed an objection, denying the allegation that the 1[st] defendant has been in possession and enjoyment of the petition schedule property and hotel therein. According to him, he has been in possession and enjoyment of the hotel for the last more than 10 years and now the 1[st] defendant along with defendants 2 and 3 are trying to dispossess him by force. Thus, the aforesaid applications seeking injunction are filed against each other from dispossessing the petitioners in each Interlocutory Applications. 6. After considering the rival pleadings claiming order of FAO Nos.166 & 167 of 2018 -5- injunction against each other, the court below dismissed both the applications, on a finding that both parties failed to prove exclusive possession of the petition schedule property. But, there is a scramble for possession of the petition schedule property and the Hotel herein, by both the plaintiff and the defendants. Further, the court below found that, in view of the averments in the petitions and the material produced before the court, it is just and convenient to appoint a party receiver for the benefit of both the parties. Thus, the court below dismissed both the applications and appointed the 1[st] defendant, the mother of the plaintiff and defendants 2 to 5, as party receiver of the petition schedule property and the hotel therein. 7. Heard the learned counsel for the appellant and the learned counsel for the respondents. 8. The learned counsel for the appellant mainly focused his arguments against the finding of the court below that there is a scramble for the possession of the petition schedule property and the appointment of a receiver is essential for the preservation of the property. According to the learned counsel, the court below could not have appointed a receiver on a mere finding that there is a scramble for possession of the petition schedule property. There is no circumstances warranting the appointment of a receiver in the absence of any allegation apprehending alienation, wasting, dispossession, sale etc. Therefore, the court below FAO Nos.166 & 167 of 2018 -6- has exercised jurisdiction appointing a receiver without sufficient grounds, as contemplated either under Order XL or XXXIX of the Code of Civil Procedure,1908 _(hereinafter referred to as 'C.P.C.')_ . Further, it is contended that the plaintiff has produced sufficient materials to prove that he alone has been conducting hotel. But, the court below has not considered the evidence on record in its correct perspective. There is no allegation constituting any circumstance, which would warrant invocation of power under Order XL of the C.P.C. In the absence of any allegation of wasting, damaging, alienation, sale, removal or dispossession of property, the court below could not have passed an order appointing a receiver particularly, when no application was filed by both the parties for the same. In order to fortify the arguments, the learned counsel cited the decision reported in _Mary v. Biju P. Sebastian_ [2010(3) KLT 174], _Mona Aresh Goel v. Aresh Satya Goel_ [AIR 2000 SC 3512], _Vikas Father Peter and Others v. Administrator, Guardian Angel English Medium High School_ [(2010) 15 SCC 705]and _Das v. Parijathamma and Others_ [1985 KLT 109]. 9. Per contra, the learned counsel for the 1[st] defendant advanced arguments to justify the appointment of the 1[st] defendant, as party receiver, when the court below found that both the parties failed to prove the exclusive possession of the petition schedule property. According to the learned counsel, appointment of the receiver is FAO Nos.166 & 167 of 2018 -7- justifiable, in view of the statutory mandate under Order XXXIX Rule 1(c) of the C.P.C. also. The learned counsel further contends that the allegations in the applications seeking injunction filed by both the parties would show that both the parties are under the threat of dispossession by force from each other and the dispossession by force is a sufficient ground to appoint a receiver, invoking the power under Order XXXIX Rule 1(c) of the C.P.C. also. To substantiate the aforesaid contention, the learned counsel cited _Ravi Lakshmaiah v. Nagamothu Milkshake and Anorther_ [AIR 1971 AP 380]. 10. In view of the arguments at the Bar, the point to be considered in these appeals is, whether the court below is justified in appointing the 1[st] defendant, as a party receiver after dismissing both the applications, seeking injunction against each other, on a finding that there is a scramble for possession of the petition schedule property and hotel business therein? 11. The 1[st] defendant is the wife of a business man by name 'Rathnakaran' and the plaintiff and defendants 2 to 5 are the son and daughters respectively of the said Rathnakaran and the 1[st] defendant. It is not disputed that Rathnakaran and the 1[st] defendant were co-owners of the petition schedule property having equal rights. According to the 1[st] defendant, before the death of Rathnakaran, he executed a gift deed No.1141 of 2017 in favour of the 1[st] defendant and thereby, now she is FAO Nos.166 & 167 of 2018 -8- the absolute owner in possession of the petition schedule property. The plaintiff also admitted that the 1[st] defendant is a co-owner, having half right over the petition schedule property. He contended that the said acquisition was also made by Rathnakaran in the name of the 1[st] defendant. Further, his contention is that recently, after the death of Rathnakaran, he came to know that the 1[st] defendant in collusion with the defendants 2 and 3, fraudulently and clandestinely obtained gift deed No.1141 of 2017 in favour of the 1[st] defendant and at the time of execution of the said gift deed, the said Rathnakaran was laid up due to colon cancer and he was not a man of sound mind. Hence, he sought for a decree cancelling the gift deed also. Though the plaintiff has disputed the genuineness of the gift deed No.1141 of 2017, as per the said documents, the 1[st] defendant is the absolute owner in possession of the petition schedule property and the hotel therein. The plaintiff has contended that since his father was busy with social activities, he used to manage the hotel business in the petition schedule property from 2006 onwards and he has been in exclusive possession of the property and management of the hotel is vested with him. His apprehension is that now the defendants 1 to 3 are trying to dispossess him by force with an intention to sell the property. In order to substantiate the said contention, he has produced an advertisement published in Mathrubhumi daily dated 12[th] December, 2017, for selling the petition schedule FAO Nos.166 & 167 of 2018 -9- property and hotel. 12. On the other hand, the 1[st] defendant's contention is that she is the absolute owner in possession of the petition schedule property, by virtue of the earlier sale deed No.448/1970 and subsequent gift deed No.1141 of 2017. According to her, even during the life time of Rathnakaran, as he was a man busy with social work, she had been managing the entire business in the petition schedule property and the plaintiff has no role in the business activity and he was kept off from the business activity, as he was a drug addict. 13. In order to substantiate the contention that the plaintiff has been in possession of the plaint schedule property, the plaintiff has produced Ext.A1 to A10 and in order to prove the rival claim of possession, the first defendant has produced Exts.B1 to B16. 14. After examining the aforesaid documents, the court below observed that none of the documents would prove the exclusive possession of either the plaintiff or the defendants. As per the title deeds, Sale Deed No. 448/1970 and gift deed No.1141/2017, as on the date of filing of the suit as well as the injunction application, the first defendant is the absolute owner in possession of the plaint schedule properties and the hotel therein. The first defendant got half right over the property by virtue of the earlier sale deed No.448/1970 of SRO, Thalassery and later she got remaining half right also by virtue of the FAO Nos.166 & 167 of 2018 -10- Gift Deed No. 1141/2017. Though the sale Deed No. 448/1970 was executed in the year 1970, the said sale deed has never been disputed, either by the plaintiff or anybody else. It follows that indisputably, the plaintiff has acquired half right over the plaint schedule property by virtue of sale deed No.448/1970 of SRO, Thalassery. Originally, Sreenivasan, the brother of Ratnakaran, was the title holder in possession of the remaining half and thereafter Ratnakaran acquired the said half right. Thus, Ratnakaran and the first defendant were coowners having equal right over the plaint schedule property. It is the case of the plaintiff that subsequently before the death of Ratnakaran, when he was not in a sound disposing mind, the respondents/defendants 1 to 3 collusively and clandestinely obtained gift deed No. 1141/2017 with respect to his half right in favour of the first defendant from the said Ratnakaran. On the other hand, defendants 1 to 3 denied the said allegation and contended that the said Ratnakaran, when he was of sound disposing mind, gifted his half right to the first defendant. However, as per the documents, as on the date of filing of the suit, as well as the interlocutory applications, the first defendant is the absolute owner in possession of the petition schedule property. 15. It is true that, in the present suit, the plaintiff has challenged the genuineness of the gift deed No. 1141/2007. But, unless and until the said gift deed is set aside by a court of law, it cannot be said that the FAO Nos.166 & 167 of 2018 -11- said gift deed is invalid or it has not come into effect. In the above view, as on the date of filing of the suit as well as the interlocutory applications, the first defendant is the absolute owner in possession of the plaint schedule properties. Though both the applications seeking injunction each other stand dismissed, the plaintiff alone has challenged the dismissal of his injunction application and the first defendant has not challenged the order dismissing her application seeking injunction against the plaintiff and it appears that she is satisfied with her appointment as Party Receiver. 16. Therefore, the point to be considered is whether the court below is justified in dismissing the application filed by the plaintiff seeking an order of injunction against defendants 1 to 3. The plaintiff has produced Exts.A1 to A10 to substantiate his claim of possession. After examining Exts.A3 to A9, the court below found that Exts.A3 to A9 stand in the name of the deceased Ratnakaran. Ext.A3 shows that Ratnakaran was conducting the hotel. Ext.A3 to A9 are tax receipt and copies of cash receipt, professional tax receipts, copy of licence, professional tax receipt, certificate of Food Safety and Standard Authority of India, Registration Certificate etc. The court below further observed that the documents produced by the first defendant disproved the exclusive management of the plaint schedule property claimed by the plaintiff. Exts.B1 to B16 are the documents produced by the first FAO Nos.166 & 167 of 2018 -12- defendant. Ext.B3 is the partnership deed wherein the first defendant and Ratnakaran are partners. Ext.B4 is the licence renewal certificate in the name of the first defendant. It further shows that even during the life time of Ratnakaran, the Bar licence was transferred in the name of the first defendant, his wife. Ext.B11 is the Dissolution Deed and Exts. B12 and B13 are the agreements of the year 1973 and 1978 respectively. Ext.B3 partnership deed dated 01.09.2016 also shows that the business in the plaint schedule property was being conducted by the deceased Ratnakaran under the name and style of Victoria Hotel. As rightly held by the court below, there is no document to show that either the plaintiff or the first defendant had ever managed the business activities during the life time of Ratnakaran. As far as the plaintiff is concerned, no document has been produced to show that on the date of filing the application, he was in exclusive possession of the plaint schedule property or the hotel by name 'Victoria' therein was under his management. That apart, Ext.B4 licence would show that the first defendant has been conducting the Bar in the hotel. Further, Ext.B2 would show that the restaurant was given to one Nidheesh on 11.07.2017 by the first defendant for conducting the same. In the absence of any material evidencing the plaintiff's possession over the property or the management of the hotel, the court below is justified in dismissing the application filed by the plaintiff against the first defendant FAO Nos.166 & 167 of 2018 -13- seeking a prohibitory order of injunction. In short, the plaintiff miserably failed to establish a _prima facie_ case. No prohibitory injunction can be granted against the owner in possession of a property and business therein, on the application filed by the plaintiff who failed to establish a _prima facie_ case. 17. The next point to be considered is whether the court below is justified in appointing the first defendant as the Party Receiver in the absence of an application from either the plaintiff or the defendants. It is not disputed that the court has power to appoint a Receiver in exercise of the power granted under Order XL of CPC, if it appears to the Court that the appointment of a Receiver is just and convenient. The appointment of a Receiver is a discretionary power of the Court, which can be exercised on subjective satisfaction and it is a protective relief also. The objective of the same is the preservation of the property in dispute pending judicial determination of the rights of the parties to it. If the property is in the enjoyment of no one, it will be the common interest of all the parties to appoint a Receiver. If the exigency of a case so requires, the Court has power to appoint a Receiver. In short, the provisions of the Order XL, Rule 1 of CPC is wide enough to enable the court, in appropriate cases, to appoint a Receiver. The procedure prescribed by the Code is only to enable the Court to reach the ultimate end of doing justice to the suitors in the case they submit before Court. FAO Nos.166 & 167 of 2018 -14- Where it is necessary to render just and meaningful reliefs, the Court can appoint a Receiver in a suit. 18. In the instant case, it is true that there was no application from the parties to appoint a Receiver. The appointment of Party Receiver after dismissing the injunction application filed by both parties against each other would be considered in the back drop of the entire facts and circumstances of the case. The court below more specifically observed that there is a scramble for possession between the plaintiff and the defendants. Can the court be justified in finding so. We have gone through the pleadings and the affidavit filed by both the parties claiming injunction against the other party. Going by the affidavit filed by the plaintiff, it could be seen that the plaintiff alleged that there is an attempt from the part of the defendants to expel the plaintiff from the Management of the Hotel and the petition schedule properties by using called rowdies arranged through the defendants' henchmen and to alienate the plaint schedule properties to the third parties and to appropriate the sale proceeds therefrom. 19. The learned counsel for the defendant justified the appointment of Party Receiver in view of Orders XXXIX and XL of the CPC. Going by the impugned order, it is not discernible as to the power under which the appointment was made, either under Order XXXIX or XL of CPC. But the court found that the appointment is just and FAO Nos.166 & 167 of 2018 -15- convenient for protecting the interest of both the parties. On an analysis of Order XXXIX, it could be seen that the court has power to grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or dispossession of the property or dispossession of the plaintiff or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the court thinks fit. 20. Applying the aforesaid provision to the instant case and going by paragraph 20 of the affidavit, as we have referred above, there is a specific allegation against the defendants that they are attempting to dispossess the plaintiff from the management of the hotel and the petition schedule properties by using rowdies arranged through their henchmen. The first defendant also raised similar allegation against the plaintiff in the affidavit filed by her. It is to be remembered that both the plaintiff and the defendants are members of the very same family, the mother and her children. The son apprehends that the mother and sisters would expel him from the management of the hotel and the petition schedule properties, by using rowdies. That apart, the son specifically alleged that his mother and other three sisters are attempting to alienate the plaint schedule property and hotel to third parties. In order to substantiate the said contention, the plaintiff has produced Ext.B11 advertisement published in Mathrubhoomy daily. It is FAO Nos.166 & 167 of 2018 -16- an advertisement to sell the plaint schedule property. We are of the opinion that the threat of dispossession and sale of the petition schedule property are evident from the admissions of the plaintiff himself and Ext.B10 paper cutting. As we have observed above, one of the purposes of the appointment of a Receiver is preservation of the property and it is a protective right to safeguard the interest of parties in a suit. The very attempt from the part of the plaintiff and the first defendant to injunct others from entering into the plaint schedule property itself would justify the findings of the court below that there is a scramble for possession of the property and the management of the hotel by name “Victoria”. It is to be borne in mind that the rival pleas claiming possession would establish the undisputed fact that the entire family of the deceased Ratnakaran now stands divided into two rival groups. The plaintiff and two sisters are on one side and the first defendant and two other sisters are on the other side. In such a circumstance, the subject matter of the suit has to be preserved and the income therefrom must be made accountable to court, till the disposal of the suit. 21. In the above circumstances, the court below appointed the mother of the plaintiff and defendants 2 to 4 as Party Receiver to the property which stands in the name of the mother herself as per the documents. As regards the half right of the first defendant, there is no challenge so far, though the first document was executed in the year FAO Nos.166 & 167 of 2018 -17- 1970. The Bar licence stands in the name of the first defendant. Nobody other than the licencee can allow to conduct a Bar. Moreover, the Receiver is none other than the mother of the plaintiff and defendants 2 to 5. Thus, the appointment of the first defendant as receiver is just and convenient also. 22. Considering the fact that the family feud arose shortly after the death of Ratnakaran and now the family stands divided into two rival groups, the appointment of the mother of the plaintiff and defendants 2 to 5 as Receiver is justified under both Order XXXIX and Order XL of the CPC. We do not find any reason to interfere with the impugned order under challenge. Hence, these appeals would stand dismissed. It is made clear that the original suit shall be disposed of untramelled by the observations made either in the impugned order or in this judgment. Considering the facts and circumstances of the cases, we direct the court below to dispose of the original suit, as expeditiously as possible, at any rate, within eight months from today. sd/- **K. HARILAL, JUDGE.** sd/- **ANNIE JOHN, JUDGE.** _Rv_ FAO Nos.166 & 167 of 2018 -18-