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Govind NaraIn Rao Desai Vs. Vallabhrao Narayanrao Desai - Court Judgment

LegalCrystal Citation
CourtMumbai
Decided On
Judge
Reported in55Ind.Cas.827
AppellantGovind NaraIn Rao Desai
RespondentVallabhrao Narayanrao Desai
Excerpt:
civil procedure code (act v of 1908), order xl, rule 1 - receiver--joint family property--partition, suit--receiver, appointment of, when justified. - - so in order that a receiver should be appointed of joint family property in a partition suit, special circumstances will have to be proved before the court will be entitled to appoint a receiver, ganerally speaking, when an application is made to the court to take the property into its hands by appointing a receiver, the plaintiff must prove that prima facie he has a very excellent chance of succeeding in establishing the case made out in his plaint, and in the next place he must satisfy the court chat the property in possession of the opposite party is in danger of being wasted. all these questions will be determined when the suit..........is no doubt that the relations between them are strained. the defendant is in possession of the family property. the plaintiff seeks partition. all sorts of claims evidently have been made by the plaintiff, alleging that the family properties are of far greater value than the amount admitted by the defendant, it is also alleged that the defendant has been grossly mismanaging the family property, and on that amount it appears that in 1915 the plaintiff got an injunction from the court restraining the defendant from dealing with the property. in 1916 he got an order appointing a receiver, and the court appointed the collector receiver, and the collector imposed certain conditions involving expense which the plaintiff was not inclined to pay. the result was that the order appointing a.....
Judgment:

1. The parties in this case are brothers, and there is no doubt that the relations between them are strained. The defendant is in possession of the family property. The plaintiff seeks partition. All sorts of claims evidently have been made by the plaintiff, alleging that the family properties are of far greater value than the amount admitted by the defendant, It is also alleged that the defendant has been grossly mismanaging the family property, and on that amount it appears that in 1915 the plaintiff got an injunction from the Court restraining the defendant from dealing with the property. In 1916 he got an order appointing a Receiver, and the Court appointed the Collector Receiver, and the Collector imposed certain conditions involving expense which the plaintiff was not inclined to pay. The result was that the order appointing a Receiver remained in abeyance until 1918 when eventually the expenses were provided for, and the Collector consented to be appointed Receiver, From that order the defendant appeals. We have before us no grounds whatever upon which the Judge made the order appointing a Receiver. The only ground, as far as I can see after hearing the argument, was that the relations between the plaintiff and the defendant were strained.

2. Now, generally speaking, in a partition suit between members of a joint family the Court will not appoint a Receiver except by consent, and especially where the family property consists of land. So in order that a Receiver should be appointed of joint family property in a partition suit, special circumstances will have to be proved before the Court will be entitled to appoint a Receiver, Ganerally speaking, when an application is made to the Court to take the property into its hands by appointing a Receiver, the plaintiff must prove that prima facie he has a very excellent chance of succeeding in establishing the case made out in his plaint, and in the next place he must satisfy the Court chat the property in possession of the opposite party is in danger of being wasted. With regard to the property in this suit it appears that a considerable amount is immoveable property, and the defendant's share would be ample security for any claim which the plaintiff would to able to substantiate in the case for damages, or under any other cause of action against the defendant. Then the plaintiff alleges that a certain shop belongs to the family. The defendant denies that the shop is joint family property. Therefore, there is a dispute as regards that shop. The mere fact that there is a dispute is no reason whatever for appointing a Receiver. The plaintiff must show that prima facie the shop does belong to the family. I asked him what is the name of the shop, because if it belonged to the family, it would naturally be carried on in the name of the family. But it appears that the shop is not carried on in the name of the family, and in any event the Collector is not the most suitable person to carry on a cloth shop or any other shop, instead of the party who is in possession. It is always open to the Court to ask the party in possession to file an inventory and to keep accounts. There are no materials from which I can form any certain opinion that a Receiver should be appointed. I am told that there are ornaments and there are mortgages. But in any event those properties are still in dispute, and the same reasons, which I have shown are applicable to the question whether a Receiver should be appointed of the land and the shop, apply with regard to ornaments and mortgages. All these questions will be determined when the suit comes on for hearing, and then the Court will be in a much better position to form an opinion as to whether the Court should take possession of the property until the dispute is finally decided. As far as I can see, as an interlocutory measure, the Court had not sufficient grounds for taking the property into its own possession and depriving the defendant of possession of the property. In my opinion, therefore, the order was wrongly made and must be set aside. The property must be restored to the possession of that party from which it came. Costs of the appeal will be costs in the cause.


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