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Jasoda Sahuani and ors. Vs. Satyabhama Sahuani and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberMisc. Appeal Nos. 135 and 136 of 1963
Judge
Reported inAIR1965Ori28
ActsCode of Civil Procedure (CPC) , 1908 - Order 40, Rule 1
AppellantJasoda Sahuani and ors.
RespondentSatyabhama Sahuani and anr.
Appellant AdvocateS.K. Ray and ;H.G. Panda, Advs. in M.A. No. 135 of 1963 and ;R.C. Panda, Adv. in M.A. No. 136 of 1963
Respondent AdvocateG. Rath and ;D.C. Mohapatra, Advs. for No. 1 and ;Y.S.N. Murty, Adv. for No. 2 in M.A. No. 135 of 1963 and ;G. Rath and ;D.C. Mohapatra, Advs. for No. 1 and ;S.K. Day, Adv. for Nos. 2 and 3 in M.A. No
DispositionAppeals allowed
Excerpt:
.....and circumstances of the case, defendant satyabhama is hereby removed from receivership of the estate, and in her place a reliable competent advocate is to be appointed as receiver......in terms aforesaid.15. these appeals are accordingly allowed with costs, consolidated hearing fee rs. 100/- to be paid by the defendant respondent satyabhama sahuani to jasoda sahuani and kunja sabatani.das, j. 16. i agree.
Judgment:

Barman, J.

1. These two analogous miscellaneous appeals are against an order dated December 9, 1963 of the Subordinate Judge, Berhampur by which defendant Satyabhama Sahuani was appointed receiver of the entire property till the disposal of the suit with directions to her to maintain and submit annually accounts of receipts and expenditure separately regarding the cultivation, harvesting and preservation of the suit property in terms of the said order.

2. For convenience of understanding the nature of the dispute among the parties leading to the appointment of Receiver, a geneological table showing the relationship of the parties in T. S. No. 69 of 1963 so far as relevant is set out as follows:

LAKSHMINARAYAN SAHU

died in 1921

___________________|___________________

| |

Banka Banchhhanidi

(died in 1923) (died 10-10-56)

=Annapurna =Satyabhama =Jasoda

D.2 (3rd wife) (1st wife)

D.1 P.1

| |

Govinda Kunia

(died 23-8-63) P. 2

=Ramkumari

The circumstances in which these two appeals came to be filed are as stated hereunder.

3. In 1953 Annapurna filed a suit being T. S. No. 32 of 1953 for partition of the half share against original defendant No. 1 Banchhanidhi therein and other incidental relefs. After the death of Banchhanidhi his widows Satyabhama and Jasoda were added as legal representatives in the said T.S. 32 of 1953. On May 17, 1958, the subordinate Judge dismissed the said R.S. 32 of 1953. Thereafter Annapurna filed an appeal being F.A. 58 of 1958 which was dismissed by the High Court on May 2, 1962. During the pendency of the First appeal, defendants Satyabhama was appointed receiver on April 22, 1959 under an order made by this Court in Civil Revision No. 340 of 1958. Defendant Satyabhama's son Govinda died on August 23, 1963. Thereafter on September 28, 1963 plaintiffs Jasoda and Kunja filed T. S. 69 of 1963 against defendants Satyabhama and Annapurna for partition of the properties and the money kept in deposit in the said T. S. 32 of 1953 in the Court of the Subordinate Judge into three equal shares, for allotment of two such shares to the plaintiffs and for a direction to defendant Satyabhama to render accounts in respect of the period of her receivership. The suit was valued at Rs. 5,43,500/-. In the said suit a Commissioner was appointed to make inventory. On October 29, 1963 the Commissioner made inventory and filed a report. On November 19, 1963 plaintiffs Jasoda and Kunja made an application before the Subordinate Judge for appointment of plaintiff Jasoda or an Advocate as receiver in the said suit. On December 9, 1963 the Subordinate Judge appointed defendant Satyabhama as receiver as aforesaid. The subordinate Judge did not appoint either the plaintiff Jasoda or an Advocate as receiver, though prayed for by the plaintiffs. It is against this order of appointment of receiver that M.A. of 135 of 1963 has been filed by the plaintiffs Jasoda and Kunja.

4. The facts leading to the filing of the other Misc. Appeal No. 136 of 1963 are these: On October 16, 1963 Ramkumari claiming to be widow of Govinda filed a suit being T.S. 77 of 1963 against Satyabhama, Jasoda, Kunja and Annapurna for partition of the joint family properties and also of the money in Court deposit in T. S. No. 32 of 1953 into three equal shares and for allotment of one such share to plaintiff Ramkumari and for putting her in separate possession of her one-third share of the said properties, for rendition of accounts during her receivership, subsequent profits and other incidental reliefs. In the said Suit Ramkumari on November 22, 1963 made an application for appointment of receiver to remain in charge of and manage the entire suit properties till the disposal of the suit. Ramkumari's application for receiver was also disposed of by the Subordinate Judge on the same date, namely December 9, 1963. In view of the order of appointment of defendant Satyabhama as receiver in T. S. 69 of 1963 as aforesaid. Ramkumari's petition for receiver was rejected. It is against this order refusing her application for receiver that M.A. 136 of 1963 has been filed by Ramkumari.

5. The appellants' points are these; by reason of various acts of mis-management of the estate by defendant Satyabhama as receiver as hereinafter discussed, she must be removed from receivership; that a third party receiver should be appointed. Annapurna supports the appellants for removal of Satyabhama from receivership and appointment of a third party receiver.

6. The main allegations against defendant Satyabhama as receiver are these; She has failed to submit accounts in respect of the period of her receivership in the previous suit T.S. 32 of 1953 from April 22, 1959 till May 2, 1962 when F. A. 58 of 1958 was finally disposed of by the High Court. She has not obeyed directions of the Court for submitting accounts and making deposits as directed. Even after appointment as receiver in the present suit by virtue of the order dated December 9, 1963 she has violated Court's order to submit accounts and not to incur fresh expenses without permission of the Court. It is alleged that she has disposed of property in spite of the order passed by the High Court for maintaining status quo as on March 18, 1964. It is further alleged that she has paid Rs. 40,000/- to her uncle Brundaban Sahu out of the income of the estate in her hands as receiver. There are also other very serious allegations made against defendant Satyabhama as receiver.

7. The most staggering charges against Satyabhama are in paragraph 6 of the plaintiff's petition dated November 19, 1963, which is this:

'The defendant No. 1 has concealed the income of the landed property from the years 1959 to 1962 for four years and from the documents listed by the Commissioner on 17-11-1963, a letter of the defendant No. 1 addressed to her uncle Baud Sahu discloses that defdt. No. 1 gave Rs. 40,000/- to Bauri Sahu from whom she demanded accounts for the money received by him. It is now learnt that the defendant No. 1 has purchased a house by registered sale deed dated 16-6-61 for Rs. 5,000/- in Palli Street, Berhampur in the name of Madhab Sahu, husband of defendant No. 1's younger sister. This house was in possession of defdt. No. 1's minor son Govinda who died of electric shock in this house on 23-8-63.'

These are serious allegations of concealment of income: alleged giving of as big a sum of Rs. 40,000/-to her uncle Brundaban Sahu, and alleged benami purchase of property in the name of Madhab Sahu, her younger sister's husband. These allegations have not been denied nor even dealt with in the counter filed by defendant Satyabhama on November 20, 1963. The same allegation against defendant Satyabhama of having given Rs. 40,000/- to her uncle Bauribandhu Sahu was also made by defendant Annapurna in para 11 of her petition dated March, 3, 1964 for removal of Satyabhama from receivership. A counter was filed on March 25, 1964 by Bauribandhu Sahu himself on behalf of Satyabhama, to this petition dated March 3, 1964 of Annapurna: in that counter Bauribandhu stated that he is related to Satyabhama as her uncle; that he was looking after the litigation on her behalf, and that he was conversant with the facts of the case. It is significant that Bauribandhu Sahu, even so conversant with the facts of the case, did not deal with the said specific charge, where it was alleged that defendant Satyabhama had given him Rs. 40,000/-. Indeed there is no satisfactory explanation of this charge against defendant Satyabhama anywhere on record.

8. That apart, it appears that the accounts have not been properly kept by defendant Satyabhama as receiver. The accounts (one account book) submitted by the receiver were shown to us in course of hearing of these appeals. These accounts are most unsatisfactory. The accounts are incomplete and the entries made therein have been indiscriminately made. They cannot show the correct state of affairs of the estate either with regard to the income or the expenditure.

9. It is also alleged that Satyabhama as receiver is reckless in making false statement to show that the estate is burdened with debts and that the estate is indebted to her. In paragraph 5 of the counter affidavit on her behalf D/- March 29, 1964 she stated that she on behalf of herself and her son late Govinda used to finance the previous receiver (referring to lawyer receiver) in the management of the estate and that she is yet to get a sum of Rs. 11,000/-, being the money advanced to the said receiver, out of deposit in the Court in the earlier suit, and that at the time when the said previous receiver was discharged, the liability to the tune of Rs. 6316/- was left on the estate. This shows that Satyabhama is saddling the estate with debts and thus the estate in her hands is in jeopardy.

10. In our opinion these charges against her prima facie show that the defendant Satyabhama is not a fit and proper person to be receiver of the estate. In any event she does not enjoy the confidence of the parties herein, and there are sufficient materials to show that she is mismanaging the estate.

11. On the question of personnel of receiver, the settled position in law which has been consistently followed by the Courts is this;--Where the attitude of a receiver appointed in a suit for partition is inconsistent with the attitude of a receiver, i.e., where he is considering his own personal interests to the exclusion of interests of the parties whose representative he is and whose benefit should be his concern, such receiver should be removed. Normally, one of the parties to a cause should not be appointed receiver without the consent of the other party unless a very special case is made out. Absolute impartiality as between, the parties to the litigation is an indispensable qualification of a receiver and upon an application for his removal the Court may properly consider his past relations to the parties as well as his present sympathies. If by reason of interest shown by him the efficiency of the receiver as an officer of the Court is impaired, the Court will be justified in removing him. Thus except in special cases a party shall not be appointed receiver without the consent of the opponent. The Court should not appoint a party as receiver where the Court cannot rely on honest and disinterested management on the part of the party seeking to be appointed.

12. We are satisfied that defendant Satyabhama is not a fit and proper person to continue as Receiver and accordingly she must be removed.

13. In course of hearing of these appeals the plaintiff Jasoda offered herself to be appointed as receiver stating that she is prepared to deposit Rs. 25,000/- as net income of the estate, that is, exclusive of cultivation expenses; that this amount will, be continued to be deposited each year till the final disposal of T.S. 69 of 63. On the other hand, defendant Satyabhama also made an offer that she is willing to deposit in Court any amount as may be determined by this Court keeping in view the net-income of the estate: she offered that the deposit will be made towards the security of the share of the appellants without admitting that the plaintiffs are entitled to any share in the suit property and without prejudice to the rights of the parties.

In course of hearing of these appeals, the defendant Satyabhama reiterated her offer to be allowed to continue as receiver on her undertaking to deposit Rs. 10,000/- every year, and further undertaking that she will not incur any loan nor dispose of any property without the permission of the Court and that she would submit accounts every three months. Then Ramkumari plaintiff in T.S. 77 of 1963 also offered to pay Rs. 25,ooo/- net in cash every year in advance if her next friend and father Bhaskar Sahu be appointed as receiver in the suit. In our opinion in the present case no one of the parties herein should be appointed receiver.

14. In this view of the facts and circumstances of the case, defendant Satyabhama is hereby removed from receivership of the estate, and in her place a reliable competent Advocate is to be appointed as receiver. As regards the personnel of the Advocate Receiver, the District Judge, Berhampur is directed to appoint a receiver, an Advocate of the local Bar, whom he may think fit and proper on such security and on such remuneration as he may think reasonable. The District Judge is also directed to give such necessary directions for immediate handing over of the estate by defendant Satyabhama to the new receiver to be appointed and to give such other directions for regular submitting of accounts and in all matters for efficient management of the entire suit properties as and when he may think necessary. We must make it clear that the Courts below are not bound by any of our observations in this judgment and that they are free to act and decide matters coming before them all according to law. In the result, therefore, the defendant Satyabhama is discharged from receivership and a new receiver is directed to be appointed by the District judge, Berhampur in terms aforesaid.

15. These appeals are accordingly allowed with costs, consolidated hearing fee Rs. 100/- to be paid by the defendant respondent Satyabhama Sahuani to Jasoda Sahuani and Kunja Sabatani.

Das, J.

16. I agree.


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