Puthiayapurayil Revathy and Rahul Lal v. Kallumburath Bobitha Govind and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL & THE HONOURABLE MRS. JUSTICE ANNIE JOHN FRIDAY ,THE 28TH DAY OF SEPTEMBER 2018 / 6TH ASWINA, 1940 FAO.No. 116 of 2018 AGAINST THE ORDER/JUDGMENT IN I.A. NO.633/2017 IN OS 25/2017 of III ADDL.SUB COURT, KOZHIKODE DATED 23-03-2018 ## APPELLANTS/RESPONDENT NOS.1 & 3 IN I.A/DEFENDANTS 1 & 3 IN O.S: - 1 PUTHIYAPURAYIL REVATHY W/O.HEMALAL, AGED 49, NOW RESIDING AT KINGSLEY, 12/433, KATTIPEEDIKA, THIRUVANGOOR AMSOM, DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT-673 303. - 2 PUTHIYAPURAYIL RAHUL LAL S/O.HEMALAL, AGED 17 YEARS, (MINOR), NOW RESIDING AT KINGSLEY, 12/433, KATTIPEEDIKA, THIRUVANGOOR AMSOM, DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT-673 303, REPRESENTED BY GUARDIAN/MOTHER APPELLANT NO.1. BY ADVS. SRI.P.B.KRISHNAN SMT.B.ANUSREE SRI.MANU VYASAN PETER SRI.P.B.SUBRAMANYAN SRI.P.M.NEELAKANDAN SRI.SABU GEORGE RESPONDENTS/PETITIONER & RESPONDENTS 2 & 4 IN I.A./PLAINTIFF & DEFENDANTS 2 & 4 IN O.S: - 1 KALLUMBURATH BOBITHA GOVIND, AGED 45, W/O.KALLUMBURATH GOVIND CHANDRASEKHAR, VELIKKAL HOUSE, MUNDANPARAMBATH, BEYPORE AMSOM DESOM, KOZHIKODE-673 015. - 2 PUTHIYAPURAYIL LAVANYA, D/O.HEMALAL, AGED 19, (NOW MAJOR) NOW RESIDING AT KINGSLEY, 12/433, KATTIPEEDIKA, THIRUVANGOOR AMSOM, DESOM, KOYILANDY TALUK, KOZHIKODE DISTRICT-673 303. 3 THIYYAKANDI SHOBHA D/O.VELAYUDHAN, AGED 61, THIYYAKANDI HOUSE, NEAR SHAKTI AUTOMOBILES, PANNIYANKARA AMSOM, DESOM, P.O.ARTS COLLEGE, KOZHIKODE-673 018. R1 BY ADVS. SRI.K.M.FIROZ SMT.M.SHAJNA FAO No. 116/2018 -2- THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 07.08.2018, THE COURT ON 28.09.2018 DELIVERED THE FOLLOWING: ## **JUDGMENT** Annie John,J. Defendants 1 and 3 in O.S. No. 25 of 2017 on the file of the Additional Sub Court-III, Kozhikode are the appellants herein and the second defendant is her daughter. The first respondent is the plaintiff in the said suit. The suit was filed for partition and to separate possession of the first respondent/plaintiff's share in the plaint schedule properties left behind by Shri. Kallumpurath Chandrasekharan. 2. Defendants 1 to 3 in the O.S filed a written statement refuting all the allegations in the plaint and the claim for partition on the basis of the Will Deed No. 92/111/2016 registered with Kozhikode SRO dated 29.08.2016 executed by Shri. Chandrasekharan Kallampurath, S/O. Govindan in favour of the defendants in the suit. 3. The first respondent/plaintiff filed I.A No. 633 of 2017 in the said suit seeking appointment of a Receiver for the purpose of taking the custody of and the management of the plaint schedule property on the ground of threat of waste, alienation and mismanagement. 4. The Third Additional Sub Judge, as per order dated 23.03.2018, allowed the application and appointed the first appellant/first defendant as the Receiver for the management of the FAO No. 116/2018 -3- plaint schedule properties. Highly aggrieved by the same, this appeal has been filed. 5. The learned counsel for the appellants contended that the court below ought to have found whether the plaintiff has shown that the property in the hands of the first defendant is in danger or being committed waste or alienated or misappropriated the property. The court below ought to have noted that there is no compelling circumstances to give the property in possession of and to appoint the first appellant as the Receiver. The court below ought to have considered the fact that the petitioner in I.A No. 633 of 2017 has not shown any element of danger to the plaint schedule properties. The lower court ought to have considered the nature of the dispute before appointing the first appellant as a receiver. 6. Heard both sides. 7. The case of the first respondent/plaintiff is that she has filed the suit for partition of the immovable properties described in the plaint B schedule and for recovery of the amount shown as plaint C schedule. Item Nos. 1 to 4 of the plaint B schedule belongs to the branch of a joint Hindu family consisting of Chandrasekharan and his son Govind Chandrasekharan. The plaintiff/first respondent is the wife of Govind Chandrasekharan, who is no more, and his half share was devolved upon the first defendant and the plaintiff/first respondent. According to her, FAO No. 116/2018 -4- she is entitled to get 3 out of 4 shares in item Nos. 1 to 4 in the plaint B schedule and the remaining one share will be entitled to the first defendant. Item No.5 of the plaint schedule property is a self acquired property of the deceased Chandrasekharan. On the death of Chandrasekharan, the property was devolved upon the plaintiff and the first defendant equally. Item Nos. 6 and 7 of the plaint B schedule property was acquired by the mother-in-law of the plaintiff namely Ratnam and on her death, the property was devolved upon her legal representatives namely Chandrasekharan, the first defendant and the husband of the plaintiff. According to him, while they were the coowners of the aforesaid property, a multi-storied commercial building was constructed in those properties. After the death of husband of the plaintiff, his 1 out of 3 shares was devolved upon the plaintiff. After the death of Chandrasekharan, his 1 out of 3 shares was equally devolved upon the plaintiff and the first defendant. At present, the plaintiff and the first defendant have equal right over item Nos. 6 and 7 of the plaint B schedule property and the building therein. It was alleged by the plaintiff that the first defendant is managing the plaint B schedule property and appropriating the entire income derived from the agricultural operations in item Nos. 1 to 5 and the rental income from item Nos. 6 and 7 of the plaint B schedule. It was further alleged by the plaintiff that the first defendant inducted new tenants in the commercial FAO No. 116/2018 -5- building and is receiving huge amount as deposit. It was further alleged by the first respondent/plaintiff that the first defendant is misappropriating the income from the plaint schedule property. Hence it is highly necessary to appoint a Receiver for looking after and managing the agricultural operation and management of the shopping complex. The averments in the petition was strongly opposed by defendants 1 to 3 and they filed a counter denying that her husband was a co-parcener of item Nos. 1 to 4 of the plaint B schedule and the said right was devolved upon the plaintiff. According to the defendants, item Nos. 1 to 4 are the exclusive properties of the deceased Chandrasekharan and he bequeathed his right over item Nos. 1 to 4 in favour of the defendants and therefore, the first respondent/plaintiff has no right over that property. It was also contended that the first defendant is also a coparcener in the event of finding that the said properties are co-parcenery properties and that the husband of the plaintiff, the first defendant and Chandrasekharan were the co-owners of the said items. The commercial building in that property was constructed by Chandrasekharan utilising his funds and it was agreed that 75% of the income will be entitled to Chandrasekharan and the remaining 25% will equally be distributed among the husband of the plaintiff and the first respondent. The income from the commercial building was appropriated by the parties at the aforesaid ratio without any dispute till the death of Chandrasekharan. As FAO No. 116/2018 -6- per the Will of Chandrasekharan, the right of Chandrasekharan to get 75% of the income was bequeathed to defendants 2 and 3, who are minors. The defendants further contended that the plaintiff is misappropriating the income from the properties etc. It was also contended by defendants 1 to 3 that the 4th defendant, the second wife of Chandrasekharan, is a co-owner of the plaint schedule properties in the event it is found to be partible. The court below was inclined to allow the application by appointing the first defendant as the receiver of item Nos. 1 to 7 of the plaint B schedule properties with the following directions: - 1) That the receiver shall take charge of the plaint B schedule properties with effect from the date of this order. - 2) The receiver shall submit accounts with respect to each item of plaint B schedule properties separately in every 3 months starting from the date of this order. - 3) That the receiver shall deposit the income derived from the item Nos. 1 to 7 in the plaint B schedule property in the account of the court after deducing the expenses for its management. - 4) That the receiver shall be responsible for any loss occasioned to the plaint B schedule properties by her wilful default or gross negligence. - 5) The accounts submitted by the receiver shall be subject to auditing FAO No. 116/2018 -7- every year. 8. The first defendant, highly aggrieved by the order of the court below, has approached this Court contending that the order passed by the court below is without any justification and he ought not to have been appointed as the Receiver for the management of item Nos. 1 to 7 of the plaint B schedule properties. 9. It is further alleged by the first respondent/plaintiff that very recently, new hoardings/sign boards of reputed business concerns are seen installed on the roof top and on the sides of the commercial building, apart from renewing the existing agreements with various Advertising Agencies. The first defendant has collected several lakhs of rupees from the Advertising Agencies, without her consent or knowledge, much less without getting the written approval from her for the same. 10. According to the first respondent/plaintiff, she has filed the suit as the first appellant/first defendant and her husband are making hasty attempts to cut and remove valuable trees from item Nos. 1 to 5 of the plaint B schedule property and are committing waste on the property. Under those circumstances, the first respondent/plaintiff has sought for appointment of a Receiver to take immediate custody of the plaint schedule properties, including the shopping complex by name 'Ratnam Square' and to look after and manage the agricultural FAO No. 116/2018 -8- operations, collection of agricultural income, management of the shopping complex, including receiving of the rental income from the occupants of the building. It is further argued that the plaint B schedule property is under the threat of being committed waste, alienated and mismanaged, and the income is being misappropriated by the first appellant/first defendant and her husband. 11. The first appellant/first defendant has filed a written statement denying the claim of the first respondent/plaintiff upon the plaint schedule property. Before the death of Chandrasekhar, he has executed a Will in favour of the plaintiff and others. After the death of Govind Chandrasekhar, the husband of the first respondent/plaintiff, she has obtained one out of three shares and the 'Ratnam Square' was constructed by the deceased Chandrasekhar. It was agreed that Chandrasekhar is entitled to get 75% of the rental income of that commercial building after deducting the expenditure, and the remaining 25% will equally be distributed among the husband of the plaintiff/first respondent and the first appellant/first defendant. The first respondent/plaintiff is not entitled to get any sort of right over the plaint schedule properties, except 12.5 of the rental income which was being given by the said Chandrasekhar. But these are the matters to be considered at the time taking evidence in the suit. 12. The only question to be considered is whether the FAO No. 116/2018 -9- appointment of the Receiver to take charge of the plaint B schedule property is justifiable or not. 13. The first respondent/plaintiff has taken a contention that the properties are now in the hands of the first appellant/first defendant and she is managing the entire property without giving the share of the income to the first respondent/plaintiff. It is also borne out that the shopping complex by name 'Ratnam Square' is in the custody of the first appellant/first defendant and admittedly there are 63 rooms which were rented out and a huge income is receiving out of the rent. It is also contended that the court below ought not to have appointed the first appellant/first defendant as the Receiver of the property. It is very important to note that the first respondent/plaintiff is the aggrieved person, who is the widow of Govind Chandrasekhar, the son of deceased Chandrasekhar. 14. There is a dispute between the parties with respect to the partition of the property and the first defendant has raised a contention that there is a registered Will executed by the deceased Chandrasekhar. These are the matters to be adjudicated after taking evidence. The first respondent/plaintiff seeks partition of the plaint schedule property and to get equal share of the income that arises from the property and under those circumstances, the court below was pleased to appoint the first appellant/first defendant as the Receiver. It is pertinent to note that the FAO No. 116/2018 -10- first appellant/first defendant is reluctant to disclose the income. If she is genuinely managing the entire property, including the commercial building and the income derived therefrom, she could have accepted the appointment as the Receiver. Her act of disputing her appointment as the Receiver is doubted. 15. The learned counsel for the appellants has pointed out the legal aspect that a Receiver can be appointed only under exceptional circumstances and it is only a harshest remedy that could be invoked by the Court. He has handed over a copy of the judgment dated 30.11.2015 in FAO No. 182 of 2015, in which reliance was placed on a decision of the Madras High Court in _**T. Krishnaswamy Chetty v. C. Thangavelu Chetty and others**_ [AIR 1955 Madras 430]. In paragraphs 13 and 14 of the said decision, five principles for exercising the equity jurisdiction in appointing receivers are enumerated and it reads thus: 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 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 FAO No. 116/2018 -11- 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. 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. It is held that the appointment of a receiver is recognised as one of the harshest remedies which the law provides for 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. 16. The first respondent/plaintiff has approached the Court for the partition of the plaint schedule property. The first appellant/first defendant has claimed right over the major share of the suit property and also admitted that the plaintiff has got share upon the commercial building having 63 rooms, which have already been rented out. Now the first respondent/plaintiff alleges that the first defendant is manipulating the accounts of the transactions related to the commercial building and she is not getting the actual income which she is entitled to. Considering FAO No. 116/2018 -12- the admission on the part of the first appellant/first defendant that the first respondent/plaintiff is entitled to the share of the income that derives from the commercial building. We find some force in the apprehension of the plaintiff. Considering the entire circumstances, the court below has appointed the first appellant/first defendant as the Receiver of the plaint schedule properties. It was also ordered that being the Receiver, the first defendant shall take charge of the plaint B schedule properties, that she shall submit accounts with respect to each item of plaint B schedule properties separately in every three months, that the Receiver shall deposit the income derived from item Nos. 1 to 7 in the plaint B schedule property in the account of the court after deducting the expenses for its management and that the accounts submitted by the Receiver shall be subjected to auditing every year. 17. We do not find any illegality in the order passed by the court below. Moreover, the first respondent/plaintiff is a widow and she is not capable of fighting with the defendants. The apprehension raised by the first respondent/plaintiff is found to be correct. Under those circumstances, the appointment a Receiver to manage the plaint schedule item Nos.1 to 5 of the plaint B schedule property and the commercial building situated therein is highly necessary. On analysing the evidence and considering the arguments advanced by both sides, we are of the considered opinion that the order FAO No. 116/2018 -13- passed by the court below cannot be interfered with. In the result, this appeal is dismissed. sd/- **K. HARILAL, JUDGE.** Sd/- **ANNIE JOHN, JUDGE.** _Rv_