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Kavalappara Kottarathil Kochunni Vs. Kavalappara Kottarathil Kunnukuttanunni and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberA.S. No. 81 of 1962
Judge
Reported inAIR1964Ker86
ActsSpecific Relief Act, 1877 - Sections 5
AppellantKavalappara Kottarathil Kochunni
RespondentKavalappara Kottarathil Kunnukuttanunni and ors.
Appellant Advocate M.K. Nambiar and; V.M.B. Menon, Advs.
Respondent Advocate Minor Respondents 10 and 13 by Guardian Respondent No. 5,; N. Sundara Iyer and;
DispositionSuit dismissed
Cases ReferredIn K. K. Kochuni v. States of Madras and Kerala
Excerpt:
.....possession in his own right under a legal title, the applicant has to make out special circumstances necessitating special protection of his rights by the appointment of a receiver......executed two gift deeds in favour of his wite and children in respect or a major portion of the sthanam properties,(2) that the first defendant is not giving, proper maintenance to the members of the family,(3) that the kottaram wherein the members have a right to reside is left to rum by the neglect of the first defendant, and(4) that the first defendant is granting imprudent leases of properties in the direct possession of the first defendant' the court below has repelled grounds (2), (3) and (4) but, finding that the first defendant had, on august 3, 1955, executed two deeds of gift, one to his son and the other to his wife and two daughters, decreed appointment of a 'permanent receiver to be in management of the sthanam properties'. this appeal by the first defendant is against.....
Judgment:

1. This appeal has arisen in a suit for appointment of a permanent receiver to the plaint properties belonging to the Kavalappara Sthanam, which has been decreed by the Subordinate Judge, Ottapalam. The first defendant is the present Sthanee and the first plaintiff is the heir-apparent thereto. The only substantial prayer in the plaint is for

'Appointing a proper person to be a permanent receiver or manager of the properties of the Kavalappara swaroopam to function during the life-time of the first defendant'.

and the grounds urged in support thereof, as formulates by the Subordinate Judge and admitted to be correct by the respondent by an affidavit here, are:

'(1) that the first defendant has already, executed two gift deeds in favour of his wite and children in respect or a major portion of the Sthanam properties,

(2) that the first defendant is not giving, proper maintenance to the members of the family,

(3) that the Kottaram wherein the members have a right to reside is left to rum by the neglect of the first defendant, and

(4) that the first defendant is granting imprudent leases of properties in the direct possession of the first defendant' the Court below has repelled grounds (2), (3) and (4) but, finding that the first defendant had, on August 3, 1955, executed two deeds of gift, one to his son and the other to his wife and two daughters, decreed appointment of a 'permanent receiver to be in management of the sthanam properties'. This appeal by the first defendant is against that decree.

2. Counsel made a faint suggestion that the appointment of a receiver, except in certain statutory cases, can only be in a pending action, but did not pursue the matter as, according to him, even if the maintainability of we suit be assumed, no ground for such an extraordinary reller has been made out in this case and therefore the suit has to fail even on its merits.

3. Counsel for the plaintiffs-respondents has not substantiated any of the grounds disregarded by the Court below. Therefore the only question in this appeal is how far the appointment of a 'permanent receiver' is justified by the Sthanee's execution of the two girt deeds referred to above.

4. Though the issue of injunctions and the appointment of receivers are two forms of specific relief under Section 5 of the Specific Relief Act, 1877, a stronger case is required for the latter than for the former. In appointing a receiver the Court wrests the possession from the defen-dant and assumes management of the property, frequently changing its form. Such dispossession may, as has been observed by Lord Cranworth in Owen v. Homan ( (1853) 4 H. L. C. 997, at p. 1032), be

'a wrong done to the defendant in some cases an irreparable wrong. If the plaintiff should eventually fail in establishing his right against the defendant, the Court may by its interference have caused mischief to the defendant for which the subsequent restoration of the property may afford no adequate compensation'.

Hence in cases involving ouster of a person In exclusive possession in his own right under a legal title, the applicant has to make out special circumstances necessitating special protection of his rights by the appointment of a receiver.

5. Admittedly the plaint properties belong to the Kavalappara 'Stnanam'. In Kochunnl v. Kuttanunni, AIR 1948 P. C. 47, a case fought between the first defendant and the plaintiffs 1 to 3 and others, the Privy Council repelled the claim that 'Sthanam' was a tarwad and held it to be 'a dignity to which property is attached for us maintenance and for the fulfilment of the duties attached to the position'. In K. K. Kochuni v. States of Madras and Kerala, AIR 1960 S C 1080, the Supreme Court followed those observations and held the members of the (Sthanee's) tarwad to have 'absolutely no proprietary interest in the Sthanam property' but only a spes successions to succed in the sthanam on the demise of the Sthanee in office. It therefore follows that the possession of the first defendant of the plant properties is under an exclusive legal title, and the plaintiffs have no proprietary interest at present therein. To have a permanent receiver appointed for the plant properties is virtually to remove the first defendant from the Sthanam which the plaintiffs cannot seek to do directly in any court of law. It is a familiar principle that are cannot do that indirectly which one is incompetent to do directly.

6. Nor does the complaint regarding the execution or two gifts by the first defendant seem to have much sub-STance. The relative instruments are Exts. A8 and A9--the first in favour of defendants 12, 13 and 15, and the second in favour of defendant 14. On January 27, 1981, defendants 1 and 14, the donor and the donee, have jointly executed EXT. b-13 cancelling Ext. A-9. There cannot thereafter be any harm possible to the plaintiffs by Ext. A-9. As concerns the other gift evidenced by Ext. A 8, the first defendant has executed and registered Ext. A10 cancelling it and the donees, defendants 12, 13 and 15, have filed written statesment in this case stating that the gift was a than transaction and has been cancelled by a registered instrument, onbviously referring to Ext. A 10 itself, it is to be noted that the plaintiffs have not sought to set aside those gifts now put forth as being designed to destroy their interest. Those gifts were made on August 3, 1955. This suit was filed on October 20, 1960. It is not averred that to the interval of 5 odd years the first defendant has executed any other alienation in favour of his wife or children or any other to screen the properties from the plaintiffs. The plaintiffs having remained quiescent for over five years after the execution of the two gifts cannot now affect a grave apprehension of total dissipation of the properties founded on them. Now that the two gifts have been cancelled with the cooperation of the concerned donees even that apprehenstion cannot be claimed to continue. The only basis of the impugned decree being thus found to be illusory, the decree cannot be sustained.

7. In the result, the decree of the court below is vacated and the suit is hereby dismissed with costs through-out.


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