1. This is an appeal against the order of the Subordinate Judge of Tuticorin appointing a receiver pendente lite in a suit in which the reliefs asked for by the plaintiffs-reversioners are the appointment of a receiver and the issue of an injunction restraining waste and mismanagement on the part of a mother and her deceased son's sister's son. The 2nd defendant sets up a will under, which he (the deceased's nephew) is to get a moiety of the property during the mother's lifetime and is to take the whole estate absolutely on her death. The 1st defendant supports this will and the plaintiff impugns it. The language of Order XLI, Rule 1, of the Code of Civil Procedure of 1908, which governs the present case, differs slightly from the language of Section 503 of the Code of 1882 by the introduction of the words 'just and convenient.' The latest decision in which the alteration is considered is Sreemati Mathurai Debya v. Shib Dayal Singh Hazari (1909) 14 C.W.N. 252, and we are disposed to agree with the learned judges who decided that case in thinking that 'the courts in India have the fullest jurisdiction to appoint as well as to remove a receiver in the exercise of a sound judicial discretion.' Each case has to be decided on its own merits, and we may at once say that ordinarily in a case where a court of first instance has fairly taken into consideration all the attendant circumstances and appears to have made a sound use of its discretion in the matter, we should hesitate to interfere with an order of this kind.
2. The prominent features of the present case are that (1) in the event of the will being invalidated the first defendant will have what is conveniently described as a widow's estate; (2) that in the affidavits filed on the respondents' side there are no specific allegations of actual waste or mismanagement; (3) that the only definite allegation relates to a sum of Rs. 6,000 which one of the partners of the deceased Subramania Pillai is alleged to have paid to the 1st defendant out of the partnership assets, and that there is a specific denial of this payment in the 1st defendant's affidavit of December 12th, 1910; (4) that the 1st defendant has expressed her willingness in para 15 of her counter-affidavit of 30th August, 1910, to give any undertaking which' the court may consider necessary or desirable so as to ensure the safety and proper management of the properties of her deceased son; (5) that the lower court refused, in its order of November 5th, 1910, to issue an injunction restraining the defendants from collecting the outstandings of Subramania Pillai's estate but granted, in its order dated the same day, the prayer for the appointment of a receiver, though the latter remedy requires a stronger case to be made out vide Chandidat Jha v. Padmanand Singh Bahadur I.L.R. (1895) C. 459. When a distinction is drawn between the two remedies, namely that while, in either case, it must be shown that the property should be preserved from waste or alienation, for au injunction it would be sufficient to show that the plaintiff has a fair question to raise as to the existence of the right alleged, but, for a receiver's appointment a good prima facie title has to be made out. In the case reported in the Calcutta Weekly Notes to which we have already made reference, the learned Judges who heard the appeal (Caspersz J. and Doss J.) lay down the principle that a Deceiver should not be appointed in supersession of a bona fide possessor of the property in controversy unless there is some substantial ground for interference. In pronouncing this opinion they refer to the leading case on the point in the Calcutta Law Reports which is Siddeswari Debt v. Abhoyeswari Debi I.L.R. (1883) A. 556. This principle of not displacing a bona fide possessor from any of the just rights attached to his title unless there be some equitable ground for interference has been followed in Srimati Prosonomoyi Debt v. Beni Madhub Rai I.L.R. (1888) C. 818 and we do not consider the circumstances of the present case justify a departure from it. In paras 4 and 5 of his order the Sub-Judge recognises the fact that an appointment of a receiver ad interim for an estate where there is a Hindu widow in possession without proving acts of spoliation would be without precedent.
3. On respondents' behalf a number of authorities have been cited, but as each case must be disposed of on its merits, and as the circumstances of the present case are distinguishable, a brief notice will be sufficient to dispose of them. In Sia Ram Das v. Mohabir Das I.L.R. (1903) C. 214 and in Ram Sunder Das v. Karnal Jha alias Kamal Das I.L.R. (1883) A. 556 it was found that distinct acts of waste had already been committed and in the latter case the defendant's title was based on the will or deed of gift alone. In Durga Nath Pramanik v. Chintamani Dasi I.L.R. (1905) C. 741 a preliminary decree for partition had already been passed. Gopinath Mookerji v. Kally Doss Mullick I.L.R. (1883) C. 225 was a case of an injunction being continued Until certain charges of fraud and collusion on the part of a Hindu widow had been investigated by oral evidence. Goluk Chunder Gooho v. Mohim Chunder Ghose (1870) 13 WR 95 (Civil) was a suit to recover a specific sum of money which, if released from attachment, the defendant intended to invest in trade.
4. Finally a suggestion has been thrown out that if the appointment of a receiver at the present stage is disapproved of, an injunction against waste may be ordered to issue. In this connection we observe that the Subordinate Judge declined in a separate order to issue temporary injunction, and the question has not come up on appeal from that order.
5. The words that occur at the conclusion of Srimati Mathurai, Debya v. Shih Dayal Singh Hajari (1909) 14 C.W.N. 252 seem to apply fully to the circumstances of this case and to be a sound reason for allowing this appeal. They are these : 'As observed in one of the English cases, the plaintiffs are the masters of the litigation. If in addition to that advantage, we were to anticipate their success in the present action, we should be placing the delendant in a position in which the circumstances of this case do not justify us in placing her.'
6. We direct the order appointing a receiver be discharged. Respondents to bear the appellants' costs of the proceedings in both courts.