Dr. B. Sunil and B. Shamsunahar v. B. Sainu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** ## **&** **THE HONOURABLE MRS. JUSTICE ANNIE JOHN** **THURSDAY ,THE 06TH DAY OF DECEMBER 2018 / 14TH AGRAHAYANA, 1940** **FAO.No. 27 of 2018** **AGAINST THE ORDER DATED 27.01.2018 IN I.A. NO.1870/2017 IN OS 107/2017 of II ADDL.SUB COURT,TRIVANDRUM** ## **APPELLANT/COUNTER PETITIONERS/DEFENDANTS:** **1 DR. B. SUNIL, AGED 47 YEARS, S/O.LATE DR. M.K BASHEER,TC 3/993, 'MALARVADY', PARUTHYPARA, MUTTADA P.O,THIRUVANANTHAPURAM 695 025** **2 B. SHAMSUNAHAR, AGED 66 YEARS, W/O. LATE DR. M.K BASHEER, TC 3/993,MALARVADY',PARUTHYPARA, MUTTADA P.O,THIRUVANANTHAPURAM 695 025** **BY ADVS.SRI.D.KISHORE SMT.MINI GOPINATH SRI.G.SHRIKUMAR (SR.) SRI.R.MURALEEKRISHNAN (MALAKKARA)** ## **RESPONDENT/PETITIONER/PLAINTIFF:** **B. SAINU, ADVOCATE, AGED 45 YEARS,D/O. LATE DR. M.K BASHEER,28/2773,SOUTH PONNETH TEMPLE ROAD,CHILAVANNOOR, KADAVANTHRA,ERNAKULAM DISTRICT, PIN 682 020** **BY ADVS.SRI.T.KRISHNAN UNNI(SR.) SMT.MEENA.A. SRI.SAJU.S.A SRI.VINOD RAVINDRANATH** **THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 06.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **FAO.No. 27 of 2018** ## **-:2:-** ## **JUDGMENT** ## **K.HARILAL,J.** **The respondent is the plaintiff in O.S. No.107 of 2017 and this appeal has been filed, challenging the order passed by the Sub Court, Thiruvananthapuram, in I.A. No.1870 of 2017 filed by her in the aforesaid original suit. The aforesaid original suit was filed for a declaration of title, partition and also for a permanent prohibitory injunction. The aforesaid I.A. was filed under Order 40 Rule 1(1) read with Section 94(e) and 151 of the Code of Civil Procedure, 1908, praying for appointing a receiver, to take possession of plaint 'B' schedule property and to manage an auditorium by name 'Malarvady Auditorium', and direct the receiver to deposit the income, after deducting the expenses into the loan account of the said auditorium. [The parties are referred to as in** **FAO.No. 27 of 2018** ## **-:3:-** ## **the Interlocutory Application.]** **2. The petitioner is the daughter of late Dr M.K. Basheer, the 1[st] counter petitioner is the son of said Dr M.K. Basheer and the 2[nd] counter petitioner is his wife. Dr M.K. Basheer died on 20.04.2017. The subject matter in dispute is 90.5 cents of property in Kowdiar village with an auditorium by name 'Malarvady Kalyana Mandapam' situated therein.** **3. According to the petitioner, her father Dr M.K. Basheer died on 20.04.2017. When he was alive, he gifted the plaint 'B' schedule property, having an extent of 90.5 cents to the petitioner, by way of oral gift, by an open declaration on 07.01.2017 and she had accepted the gift and took possession. Thereafter, she orally authorised the 1[st] counter petitioner to manage the auditorium and to remit the rent in the loan account of their father with Punjab** **FAO.No. 27 of 2018** ## **-:4:-** **National Bank Logos Centre, Kottayam branch. Initially, the 1[st] counter petitioner has remitted the amount in the account as directed by her. But, later, when she and her husband went to the auditorium on 11.05.2017 to inspect the accounts and building, the Manager refused to hand over the accounts and closed the door of the auditorium, when she was inside. Thus, she happened to be dispossessed from the plaint 'B' schedule property by the 1[st] counter petitioner on that day, 11.05.2017. According to her, the 1[st] counter petitioner is residing near the property. Thereafter, if the 1[st] counter petitioner is allowed to continue with the management of the auditorium and nearby properties, it will be detrimental to the property. Hence, she prayed for an order appointing a receiver and directing him to take the management of the property and the auditorium therein.** **FAO.No. 27 of 2018** ## **-:5:-** **4. The 1[st] counter petitioner filed objection, resisting the prayer for appointing a receiver. He disputed the averment that his father Dr M.K. Basheer gifted the plaint 'B' schedule property to the petitioner, by way of an oral gift. According to him, it is not true and no such oral gift was effected, as claimed by her. She never accepted the property and he is in possession of the property, by virtue of an earlier express gift of the plaint 'B' schedule property to him made by his father and the entire plaint 'B' schedule property was handed over to him with all documents. So, the petitioner is not entitled to any share of the income from the properties. Hence, he prayed for dismissal of the said application.** **5. After considering the rival pleas and documents produced by both parties, the court below allowed the petition, by appointing a** **FAO.No. 27 of 2018** ## **-:6:-** **receiver to manage the plaint 'B' schedule property. The legality and correctness of the findings, whereby a receiver is appointed by the court below, are challenged in this appeal.** **6. Heard Shri. D. Kishore, the learned counsel appearing for the appellants and Shri. T. Krishnanunni the learned senior counsel appearing for the respondent.** **7. The short question that arises for consideration in this appeal is, whether the court below is justified in appointing a receiver, to manage the plaint 'B' schedule property and the auditorium situated therein?** **8. Going by the impugned order passed by the court below, it could be seen that the petitioner claims title and possession in plaint 'B' schedule property, by virtue of an oral gift made by her father on 07.01.2017. It is not disputed that the father of the petitioner and** **FAO.No. 27 of 2018** ## **-:7:-** **the 1[st] counter petitioner, died on 20.04.2017. It is the case of the petitioner that, immediately after the acceptance of the oral gift made in her favour, she took possession of the plaint 'B' schedule property and thereafter, she orally authorised the 1[st] counter petitioner to manage the auditorium and directed him to remit the rent in the loan account of their father with Punjab National Bank. Further, it is averred that, when she visited the property on 11.05.2017, she was physically dispossessed from the property and prevented from examining the accounts of the auditorium. Thus, according to the petitioner, she was in possession of the plaint 'B' schedule property from 07.01.2017 to 11.05.2017. No document has been produced to prove that she was in possession of plaint 'B' schedule property from 07.01.2017 to 11.05.2017. In short, at present, there is no material on** **FAO.No. 27 of 2018** ## **-:8:-** **record to arrive at** _**prima facie**_ **satisfaction to the effect that Dr M.K. Basheer orally gifted plaint 'B' schedule property to the petitioner and after the said gift, she was in possession of the plaint 'B' schedule property.** **9. In the above context, the decision of the Supreme Court in** _**S. Saleema Bi v. S. Pyari Begum and Another**_ **[(2000) 9 SCC 560] assumes significance. In this decision, the Supreme Court held that “the Receiver can only be appointed when it is just and convenient and also when there is a** _**prima facie**_ **case in favour of the plaintiff/petitioner and the case calls for taking of urgent measures like appointment of Receiver”.** **10. Similarly, though she contended that after accepting the gift, she authorised her brother to manage plaint 'B' schedule property and auditorium situated therein, no material has** **FAO.No. 27 of 2018** ## **-:9:-** **been produced to substantiate such an entrustment at present. Therefore, in view of the documents available on record, it cannot be held that the petitioner was in possession of the property, when she filed the above original suit. The above view is fortified by the prayer in the original petition. The first prayer reads as follows:** _**'declaring that the plaintiff has got absolute title over plaint B schedule property by way of oral gift dated 7/1/2017 of Late Dr M.K. Basheer and directing the defendants to surrender vacant possession of plaint B schedule property to the plaintiff'.**_ **11. We are of the opinion that, the aforesaid prayer for declaration of title and a direction to surrender vacant possession of the plaint 'B' schedule property, would give rise to an inference amounting to an admission from the** **FAO.No. 27 of 2018** ## **-:10:-** **part of the petitioner herself that, now the 1[st] counter petitioner is in possession of the plaint 'B' schedule property and the petitioner is not in possession of plaint 'B' schedule property. We are of the view that the title and legal possession of the plaint 'B' schedule property can be determined, after taking evidence only, and now the point to be considered is, whether there is any circumstance warranting appointment of a receiver to preserve and manage plaint 'B' schedule property?** **12. Coming to the petition, there is no averments to the effect that the property would be put in danger, if the 1[st] counter petitioner is allowed to continue in possession of plaint 'B' schedule property. The only allegation is that on 11.05.2017, when she visited plaint 'B' schedule property to examine the accounts, she was dispossessed from the property and prevented** **FAO.No. 27 of 2018** ## **-:11:-** **from examining the accounts. Thus, the apprehension expressed in the petition is confined to loss of income only. We are of the opinion that, unless and until, the oral gift asserted by the petitioner or the express gift claimed by the 1[st] counter petitioner is proved, the plaint 'B' schedule property is the property of the deceased Dr M.K. Basheer, which devolved upon his all the legal heirs. If the property belongs to deceased Dr M.K. Basheer, both the petitioner and the 1[st] counter petitioner are coowners of the property, as legal heirs of deceased Dr M.K. Basheer.** **13. In the above view, even according to the admitted case of the petitioner, the 1[st] counter petitioner, one of the co-owners is in possession of plaint 'B' schedule property. If that be so, the point to be considered is, whether there is any circumstances to disturb the possession with** **FAO.No. 27 of 2018** ## **-:12:-** **one of the co-owners of the property?** **14. In the above context, the interim order passed by this Court appointing the 1[st] and 2[nd] counter petitioners, as interim receiver assumes relevance and significance. After admitting this appeal on the files of this Court, on 4[th] April, 2018, this Court passed an interim order, in I.A. No.110 of 2018 appointing defendants 1 and 2/counter petitioners 1 and 2, as interim receivers until further order. After examining the documents, this Court specifically observed that it is just and convenient to appoint defendants 1 and 2(the appellants in this appeal) as interim receivers of plaint 'B' schedule property and specific direction has been issued to the defendants 1 and 2(the appellants in this appeal)for the administration and management of plaint 'B' schedule property, including the auditorium.** **FAO.No. 27 of 2018** ## **-:13:-** **15. Thereafter, the counter petitioners 1 and 2 submitted three interim reports Annexures A1 to A3 before this Court and the petitioner has filed an objection to the first report only. It is pertinent to note that the order dated 4[th] April, 2018 appointing the counter petitioners 1 and 2, as interim receivers has not been challenged so far.** **16. As we have observed above, the only allegation as well as apprehension is that the 1[st] counter petitioner, who is in possession of the auditorium will not keep the accounts of the income and expenditure from the auditorium properly. In other words, the apprehension as to the loss of income alone is the ground for filing this application to appoint a receiver. We are of the opinion that the said apprehension can be resolved by making the 1[st] and 2[nd] counter petitioners, who are in possession of the plaint** **FAO.No. 27 of 2018** ## **-:14:-** **'B' schedule property accountable to the court. By the interim order, this Court has already made the counter petitioners 1 and 2 accountable to the court and we do not find any reason to disturb the interim order dated 4[th] April, 2018. We are also of the view that the appointment of the 1[st] and 2[nd] counter petitioners as interim receivers is just and convenient for the preservation and management of plaint 'B' schedule property, till the disposal of the suit and the suit can be disposed of, at the earliest, without any delay.** **17. Therefore, the impugned order passed by the court below is set aside and the interim order dated 4[th] April, 2018 will stand made absolute till the disposal of the original suit. The counter petitioners 1 and 2 are directed to file further reports before the Sub Court, Thiruvananthapuram. The petitioner can file** **FAO.No. 27 of 2018** ## **-:15:-** **objection, if any, before the Sub Court and the Sub Court is directed to consider all the reports and objections, including Annexures A1 to A3 and objection to A1 filed in this F.A.O., at the time of disposal of the F.A.O.** **18. The learned senior counsel for the petitioner drew our attention to Rule 169 of the Civil Rules of Practice and argued that 'in cases where the income of the property is larger enough to afford payment of remuneration to a receiver, no party to the suit or proceedings shall ordinarily be appointed receiver'. According to the learned senior counsel, in the instant case, the income from the property is larger enough to afford payment of remuneration to a receiver. Therefore, the party to the suit cannot be appointed as receiver.** **19. We have meticulously gone through the said provision. We are of the view that the said** **FAO.No. 27 of 2018** ## **-:16:-** **provision is not an absolute rule, because the word 'ordinarily' is seen prefixed in the second limb of the said provision. It means that this rule is not an absolute rule and ordinarily, this rule shall be observed. It follows that in exceptional cases, the parties to the suit also can be appointed as receiver, even if income of the property is larger enough to afford payment of remuneration to a receiver. We are of the opinion that facts and circumstance of the instant case would fall under exception, because the petitioner herself admitted that the 1[st] counter petitioner is in possession of plaint 'B' schedule property. In the above view, we reject the said argument advanced by the learned counsel for the petitioner.** **20. We are of the view that, considering the facts and circumstance of the case, even though several old cases are pending before the Sub** **FAO.No. 27 of 2018** ## **-:17:-** **Court, Thiruvananthapuram, some priority can be given to the instant case, as it is a suit for partition. Therefore, the Sub Court, Thiruvananthapuram is directed to dispose of the original suit, at the earliest, at any rate, within a period of six months from the date of receipt of a copy of this judgment.** **This F.A.O. is disposed of accordingly.** **Sd/-** **K.HARILAL JUDGE** **Sd/-** **ANNIE JOHN JUDGE** DST //True copy// P.A.To Judge