M.N. Shukla, J.
1. This is a defendant's appeal under Order 43, R, 1, C.P.C. and is directed against the order dated 2-2-1977 passed by the III Additional District & Sessions Judge, Allahabad on an application made by the plaintiff-respondent No. 1 for removal of the appellant No, 1 from the post of Receiver to which he had been appointed by an order of the High Court.
2. The facts leading to the impugned order may be briefly stated. The plaintiff-respondent No. 1 had filed Suit No. 55 of 1971 for possession and mesne profits of the property in suit, consisting of bungalow No. 29/30 Kanpur Road. It was stated in the plaint that the said property belonged to Smt. Mahmood Jahan Begum, sister of the plaintiff-respondent No. 1, that Smt. Mahmood Jahan Begum died on 29-3-1968 leaving behind the plaintiff-respondent No. 1 and defendants Nos. 3 and 4 as her heirs and they inherited the said property on the death of Smt. Mahmood Jahan Begum. It is also stated in the plaint that the defendant No. 1 was claiming the said property on the allegations that it was a waqf property under a deed of Waqf dated 9-11-1966 and that he was the Mutwalli thereof. According to the plaintiff-respondent No. 1 the said deed of Waqf was invalid on the ground that it was obtained under undue influence and that the land on which the aforesaid building was constructed being a leasehold land could not be dedicated under the Mohammadan law. The Waqf deed was assailed on sundry other grounds as well.
3. The defence of defendant No. 1 Syed Ahmad Jawwad was that Smt. Mahmood Jahan Begum executed the deed of Waqf out of her own free will on 9-1-1966 and that he was the Mutwalli under the said deed of Waqf. He,therefore, claimed to be in rightful possession as Mutwalli over the Waqf property. He raised some other pleas also in defence which are not relevant at present for the disposal of the appeal.
4. The plaintiff-respondent No. 1 moved the application for appointment of Receiver under Order 40, Rule 1 C.P.C. which was allowed by the then Civil Judge by his order dated 20-9-1973 which may be usefully quoted:
'I consider it proper to appoint Sri Mohammad Islam Ansari, Advocate as Receiver. He shall realise rent from all the tenants of the disputed property and shall make necessary expenses for the preservation of the property. He shall maintain full account and shall deposit the entire amount in court. Rent will be realised by him with effect from 1-10-1973. He shall get a sum of Rs. 75/- per mensem as his remuneration. He may 'adjust this amount from the income of the property.'
It was further stated in the operative portion of the order:--
'Sri Mohd. Islam Ansari, Advocate is appointed Receiver of the property, (i) He shall realise rent from all the tenants of the disputed property from 1-10-1973, (II) maintain accounts of the income and expenditure, (III) carry out necessary repairs with the permission of the court, (IV) keep an account of the repairs, (V) submit account to the court. He shall get remuneration of Rs. 75/- per month which he shall be entitled to adjust from the income of the property.'
5. The defendant No. 1 Syed Ahmad Jawwad feeling aggrieved by the above order filed First Appeal From Order No. 311 of 1973 in this Court. In appeal this Court modified the order of the trial court by its order dated 31-1-1974. The operative portion of the order is relevant and reads as under:
'The result is that this appeal partly succeeds to the extent that the appoinment of Sri Mohd. Islam Ansari, Advocate is set aside and Sri Syed Ahmad Jawwad is appointed Receiver. The rest of the order under appeal shall stand.'
6. It will be apparent that this Court affirmed the order of the learned Civil Judge with regard to the appointment of Receiver and the only modification made by this Court in appeal was that it substituted Syed Ahmad Jawwad for Moham-mad Islam Ansari as Receiver. The rest of the order was maintained in its entirety by this Court.
7. Thereafter the plaintiff-respondent No. 1 moved an application before this Court for removing defendant No. 1 Syed Ahmad Jawwad as Receiver on the grounds that he had violated the order passed by the learned Civil Judge and affirmed by this Court. The main grievance of the plaintiff was that the defendant No. 1 had spent huge amount in litigation, conveyance, boarding and railway fare. Another strong objection taken by the plaintiff was that the defendant No. 1 had wrongfully charged Rs. 100/- per month claiming to be his remuneration as Receiver, although the amount fixed by the court was Rs. 75/-per month only. It was pointed out that the defendant No. 1 had charged extra amount of Rs. 100/- per month on the basis that he was entitled to that allowance in his capacity as Mutwalli in addition to the remuneration of Rs. 75/-per month granted to him in his capacity as Receiver by the orders of the trial court as modified by this Court in first appeal. The further allegation was that defendant No. 1 Syed Ahmad Jawwad 'had not deposited any amount in court in obedience to the order of the trial court and confirmed by this Court, even though there was a clear direction to that effect in the order of appointment of Receiver, and that almost the entire income of the property had been spent by him for his own purposes.
8. That application came up before a division Bench of this Court which by its order dated 12-8-1974 transferred the said application for disposal to the court below. After hearing the parties the court below passed the impugned order, removing Syed Ahmad Jawwad from the office of Receiver on the ground that he had been mismanaging the property and had been misappropriating the income of the property and had thereby violated the direction of this Court mentioned in the order appointing him as Receiver. The present appeal is directed against that order.
9. Sri G. N. Varma learned counsel for the appellants has made two main submissions before us. In the first place, his contention is that the appellant No. 1 had submitted an account of the expenses Incurred by him in the court below to which it failed to apply its mind, and, in fact, it refrained from passing any legal order after appreciating the material evidence on record. Secondly, he con-tended that in. the instant ease the appointment of Receiver had been made withclearly defined and limited functions and consequently that order did not in any manner affect or impair the position of the appellant No. 1 as Mutwalli under the Waqf. It was certainly not denied that the appellant No. 1 was the Mutwalli under the Waqf. Consequently the argument proceeded that the appellant No. 1 was entitled to incur the expenses, of which an account had been rendered, that they were legitimate expenses incurred by him in his distinct position as the Mutwalli of the Waqf property and he was not liable to ask for permission or leave of the court in order to incur those expenses. In the alternative it was contended that even if the functions of the Receiver expressly mentioned in the order of appointment did not include the management of the property, which was the function of the appellant No. 1 as the Mutwalli, such function relating to management must be deemed to be implicit in the order of appointment and the court was bound in law to accept and approve of such expenses and further, that it was open to the court to accord a sanction even with restrospective effect. Sri Varma laid emphasis on the fact that the appellant No. 1 had been advised by him that on a proper construction of the order of appointment of Receiver it followed that such functions as the appellant No. 1 used to perform as Mutwalli had not been in any manner taken away or diminished by the order appointing a Receiver and even if a contrary interpretation was eventually placed by this Court, the construction adopted by the appellant No. 1 could not be said to be manifestly erroneous or unwarranted. In other words, the action of the appellant No. 1 was not mala fide and this was sufficient justification for the court to approve such expenditure after scrutiny on merits.
10. On the other hand, the contention of the respondents was that the powers of the Receiver in the instant case were confined to those expressly mentioned in the order and hence the appellant No. 1 acted illegally in incurring those expenses and he was not entitled either to incur those expenses on his own accord nor should the court approve of any such expenditure. It was also stated that the Receiver was clearly guilty of misconduct and that he had flagrantly violated the direction of this Court contained in the order of the appointment of Receiver and hence he had fully rendered himself liable to removal.
11. In order to appreciate the controversy it may be noted that the appellant No. 1 was a Mutwalli of the alleged Waqf and at a later stage of the present dispute he himself had been appointed a Receiver of the property in suit. We have already extracted the operative portion of the order of the Civil Judge dated 20-9-1973 in which about five functions of the Receiver were expressly set out. They included realisation of rent from all the tenants of the property, maintenance of the account of the income and expediture, carrying out necessary repairs with the permission of the court etc. His remuneration was also fixed by the same order at Rs. 75/- per month which he was entitled to adjust from the income of the property. That order was passed on the allegation made by the plaintiff that the property was not being properly managed, that necessary repairs etc. were not being made, that there was difficulty in realisation of rent also from the tenants in view of the controversy which appears to have been raised as to who was actually entitled to the rent. The court came to the conclusion that the appointment of Receiver was necessary. In fact, the rights of both parties were best protected by the appointment of a Receiver. Moreover, the appointment of Receiver was also necessary in order to preserve the property, and in substance it was necessary to withdraw the property from the management of either of the parties. While appointing Mohammad Is] am Ansari, Advocate as Receiver a direction was issued that he would realise rent from all the tenants of the disputed property and shall make necessary expenses for the preservations of the property. He shall maintain full accounts and shall deposit the entire amount in court. Thus, it is clear that the Receiver was charged with the preservation of the property. This obviously could not be achieved without the Receiver being competent to manage the property. That intention which can be clearly read in the order dated 20-9-1973 passed by the Civil Judge is fully borne out by the order dated 31-1-1974 passed by a Division Bench of this Court whereby the appellant No. 1 was substituted as Receiver on the same terms and conditions as laid down in the previous order to manage and look after the property. A perusal of the subsequent order dated 12-8-1974 passed by a Division Bench of this Court also leads to the same conclusion. While explaining the ebjectand purpose of the previous order of this court it was pointed out:
'We were persuaded to appoint Sri Jawwad as Receiver because he was Mutwalli designated in the Waqf deed which is under dispute. The object was to save unnecessary expenses and to displace Sri Jawwad from the management of the property.'
It will not be correct to make any generalisation as to the powers of a Receiver appointed by a court because eventually every case must be decided on its own facts and therefore whatever inferences are arrived at with regard to the powers and functions of the Receiver appointed in the present case they naturally flow from the facts and circumstances of this case alone. A look at the various orders passed by this Court according to the sequence of events leaves no room for doubt that the Receiver was appointed in order not only to perform the five functions specified at the conclusion of the order but since ultimately the person appointed as Receiver was also the Mutwalli of the alleged Waqf he was permitted to become Receiver by this Court on the basis that he would also manage the property in dispute as Receiver. It is not disputed that the property of the alleged Waqf consisted only of the house in dispute and the realisation of its rental income, its repairs, incurring expenses on that account and maintenance of accounts etc. were all entrusted to the Receiver. This in substance amounted to investing the Receiver with the management of the property. It is true that Order 40, Rule 1 C.P. C. indicates the various functions and powers which may be conferred on a Receiver and Clause (d) of Order 40, Rule 1 C.P. C. is to the following effect:
'1. (1) Where it appears to the Court to be just and convenient, the Court may by order(d) confer upon the receiver all such powers, as to bringing and defending suits and for the realisation, management, protection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself has, or such of those powers as the Court thinks fit.'
12. The contention of Sri Varma was that each of the items enumerated in Clause (d) of Order 40, Rule 1 C.P. C. is self-contained and if the court in its order ofappointment refers only to some of them, it cannot be inferred that any other kind of power or function was conferred on the Receiver. In other words, the court could not be justified in assuming conferment by necessary implication of any power other than the one specified in the order. While this proposition of law may be correct in many cases, it is not inconsistent with a situation where regard being had to the facts of the case and the background of successive orders passed in connection with appointment of Receiver, it may be legitimate to hold that the intention was also to clothe the Receiver with the general power of management of the property. Powers may be conferred on a Receiver by the court either expressly or by necessary implication. The conferment of powers by necessary implication on the facts of a case and in its particular background has always been accepted by courts. While a right to management is not necessarily incidental to the general powers of the Receiver, yet in a case where the same person combines in himself the dual role of a Mutwalli and Receiver, as in the instant case, and on allegations being made against the conduct of the Mutwalli the court passes an order appointing him as the Receiver, by necessary implication it must be inferred that such Receiver had also a right to the management of the property. The legal effect of an order appointing a Receiver is that the property becomes custodia legis. In P. Lakshmi Reddy v. L. Lakshmi Reddy : 1995(5)SCALE509 the following passage from Woodroffe's on the Law Relating to Receivers, page 63 was quoted with approval:
'The Receiver being the officer of the Court from which he derives his appointment, his possession is exclusively the possession of the Court, the property being regarded as in the custody of the law, in gremio legis, for the benefit of whoever may be ultimately determined to be entitled thereto.'
In Seshayya v. Narasimhacharyulu : AIR1955Mad252 the legal consequences flowing from the appointment of a person as Receiver under Order 40 Rule 1 were summed up as under:
'A receiver may be asked to de various things by a court. There may be cases, where the receiver does every conceivable thing, and there may be cases where he does only a very few things. But, in every case, where he isappointed as general receiver under Order 40 Rule 1, he is a receiver and officer of court in respect of the 'property', and when possession is passed to him either physically or legally, by operation of law, as where the party himself is made receiver, it is obvious that the possession is no longer with the original party.'
If the origin of the concept of Receiver is analysed it will be found that the functions of Manager and those of Receiver were closely inter-twined. In Woodroffe's 'Law Relating to Receivers', Sixth Edition, it is stated at page 178 that the terms 'receiver'' and 'manager' are synonymous. We may also refer to another important passage from Kerr 'On Receivers', Fourteenth Edition, page 166 wherein powers and duties of a Receiver are set out. It has been observed:
'The general duty of a receiver may be said to be to take possession of the estate, or other property the subject-matter of dispute in the action, in the room or place of the owner thereof; and, under the sanction of the court, to do as and when necessary, all such acts of ownership, in relation to the receipts of rents, compelling payment of them, management, letting lands and houses, and otherwise, making the property productive, or collecting and realising it, for the parties to be ultimately declared to be entitled thereto, as the owner himself could do if he were in possession.'
Woodroffe emphasises the role of the Receiver as a Manager in appropriate cases and states in his book 'Law Relating to Receivers', Sixth Edition, at page 5 as under:
'The receiver's functions are to obey the orders of the Court, collect and account for the rents, and manage the estate; and the Court will see that this is done and protect the agent appointed under its orders.'' In an oft-quoted passage from the same celebrated work it has been pointed out (page 3, Supra): 'The receiver appointed in a particular suit is nothing more than the hand of the Court, so to speak, for the purpose of holding the property of the litigants whenever it is necessary that it should be kept in the grasp of the Court in orderto preserve the subject-matter of the suit pendente lite.'
Thus, to us there appears no difficulty inassuming by necessary implication that in appropriate cases, even though it may not have been expressly stated in the order of appointment of Receiver, particularly when he occupies a dual position, he is also entrusted with the duty of managing the property. It must be borne in mind that so far as the instant case is concerned the Receiver was also entrusted with the function of 'preserving' the property. In our opinion there is no justification for giving to that word a restricted connotation. It means 'preserving' the property and keeping it intact for the benefit of the person ultimately found entitled to it. In appropriate circumstances the term 'preserving' would necessarily include such management, of the property and performing such multifarious duties as the exigencies of the situation may require. Sri Varma, learned counsel for the appellants, submitted that the duties relating to the repairs etc. of the property in question were distinct functions of the appellant No. 1 as Mutwalli and should be considered separately from the specific function assigned to him by the court as stated in its order of appointment. The contention is untenable. In a situation like the one before us it appears to us that substantially those functions which were formerly exercis-able by Syed Ahmad Jawwad as Mutwalli now merged into the comprehensive role which devolved on him in the capacity of a Receiver. It would also not be conducive to justice to hold that when a property became 'custodia legis', then discretion should still be left to any other person or authority for meddling or dealing with the property in a manner which may not be in conformity with what the court intended while passing an order for the appointment of a Receiver. It, therefore, follows that even where an order of appointment of Receiver is not exhaustive and explicit with regard to the conferment of a particular duty or function but it is necessarily implied in such order, it is the duty of the Receiver to perform such functions in the course of management and preservation of the property, but in such cases it is imperative for him to obtain the previous leave of the court for discharging such duties and incurring any expenses or liability on that account. In fact, in Woodroffe's 'Law Relating to Receivers.' in Appendix B where theprovisions of Order 40, Rule 1 are examined it has been stated (page 299):
'Even if full powers are conferred on a receiver he should take the Court's directions in all important matters to be on the safe side.'
Thus, we find that in the instant case it was not correct on the part of the Receiver to have straightway proceeded to perform actions which were not explicitly covered within the ambit of the order of appointment, without the permission of the court. However, in view of the fact that such functions were implicit in the order, we do not think that it would be inappropriate for the court concerned even now to consider the appellant's prayer for declaring those actions valid and examining the accounts submitted by him for the purposes of determining whether they are factually correct, and, if so, pass suitable order.
13. We are, therefore of the view that when a person who is a Mutawalli assumes the additional role of a Receiver by virtue of a subsequent order of the court and there is a field in which there is overlapping of the functions of a Receiver and those of a Mutawalli, the earlier functions as Mutawalli must be deemed to have merged in those of the Receiver. In Kashi Ram v. Kundan Lal : AIR1956All660 this subtle distinction and the legal effect of the appointment of Receiver was clearly brought out in para 14 of the Reports:
'Two contentions have been put forward by Kashi Ram. The first argument is that since he was put into possession of the mill by court as a receiver and not by any of his brothers as a 'partner, his possession was not that of a partner and therefore he cannot be sued for accounts as a partner.'
14. Sri Varma, learned counsel for the appellants placed reliance on a case of the Calcutta High Court in Mahammad Abdul Gani Fakir v. Mt. Kulsan Nessa Bibi : AIR1945Cal328 which, however, can hardly be of any assistance to him so far as the controversy in the present case is concerned. In the Calcutta case one of their Lordships, namely Biswas, J. remarked that it was the duty of the Mutwalli to defend the wakf estate against hostile claims and a mere statement that he asked for funds from the Receiver but did not obtain any, was not sufficient to exonerate him. Obviously their Lordships of the Calcutta High Court had no occasion to discuss the duties and functions of a Mutawalli whowas also appointed a Receiver. Thus, on the facts of the present case we are satisfied that the general function of managing the property had to be performed by the Mutawalli Receiver and we must repel the contention that the duties of the Receiver as stated in the order were not intended to embrace these functions. But as we have already observed, since they were not specifically stated in the order it was the duty of the Receiver to ask for leave of the court before incurring any expenditure in the discharge of such functions. We are also of the opinion that since in substance the effect of the order of appointment of Receiver was that the duties of Syed Ahmad Jawwad as Mutawalli merged in those of the Receiver he was only entitled to receive remuneration fixed by the court for discharging the functions of a Receiver i.e. a sum of Rs. 75/- per month. We must add that the fact that the appellant No. 1 failed to obtain the necessary leave of the court before incurring such expenditure in the performance of his duties, is not by itself a sufficient ground for his removal from the post of Receiver.
15. For these reasons we allow this appeal, set aside the order appointing another Receiver, namely, Sri Shamsud-din and send the case back to the court below with a direction that the account etc. furnished by the appellant No. 1 shall be scrutinised and the parties shall be given an opportunity of leading such evidence as they desire in this connection and the application for removal of the Receiver should then be decided afresh and expeditiously. In the circumstances of the case the parties are directed to bear their own costs. We also direct that the suit shall be disposed of by the court below at an early date.