1.These are two connected applications filed in a pauper suit, C. S. No. 99 of 1954 for (a) interim maintenance and (b) appointment of a Receiver.
2. The facts are: The properties which constitute the subject-matter of this suit, viz., houses bearing door Nos. 80, 81, 82 and 83 in Edapalayam Street and No. 5, Rangapillai Garden St. (Kondi-thope), Park Town, Madras, and other properties originally belonged or were acquired out of the assets left by the late Ramaswami Naidu. This Ramaswami Naidu died in December 1905, surviving him his second wife by name Salammal and a son by name Govindarajulu Naidu.
The plaintiff Muni animal is the widow of that Govindarajulu Naidu who died in 1918. This Govinda-rajulu Naidu was also survived by another wife by name Amirthavalli Animal. This plaintiff bore a child to this Govindarajulu Naidu which died after birth even before Govindarajulu's death. Salammal died in 1937. Amirthavalli Animal also bore 110 issue to Govindarajulu Naidu.
The second defendant in this suit, Janardana Naidu along with one P. B. Narayanaswami Naidu are the next reversioners of the deceased Govinda-rajuln Naidu.
3. Ramaswami Naidu is stated to have executed a will dated 21-11-1903, which was duly registered and probated, in and by which he is stated 'to have appointed Govindarajuhi as his sole executor and provided among other things that his widow Salammal and Govindarajulu Naidu should enjoy the income from the immovcable properties left by him and that in case Govindarajulu died leaving issues they were to take the properties absolutely.
Salammal was given right of residence and maintenance.
4. I have just stated that Govindarajulu Naidu died in 1918 and this Govindarajuhi Naidu during his lifetime mortgaged premises Nos. 80 and 81, Edapalayam St. along with some other properties for certain debts binding on the estate of Ramaswami Naidu. On the death of Govindarajulu Naidu the plaintiff along with her co-widow Amirthavalli Ammal and her mother-in-law Salammal executed a mortgage on 16-7-1919, in favour of one Ramanuja Chetti for discharge of a prior mortgage dated I6-8-1918.
The two widows subsequently borrowed Rs. 2400 on the security of No. 82 Edapalayam Street for discharge of other debts binding upon the estate.
5. The plaintiff filed C. S. No. 275 of 1932 on the file of this Court against her mother-in-law and her co-widow for maintenance. This was obviously a move to defraud Ramanuja Chetti. On the motion of Ramanuja Chetti, to protect his rights, the rcversioner the second defendant herein was also impleaded. The properties were directed to be vested in the Official Trustee who was directed to discharge the mortgage of Ramanuja Chetli for a sum of Rs. 4100 as ho gave up his entire interest.
6. This debt was not discharged and the mortgagee Ramanuja Chetti got the permission of the Court to file a suit upon his mortgage and filed C. S. No. 178 of 1944 impleading the plaintiff, her co-widow and the Official Trustee. Salammal, it should be remembered, had died in 1937. The plaintiff contended among other things in that suit that the mortgage was not binding on her. After adduction of evidence the Court held that the mortgage was fully Supported by consideration and passed preliminary and final decrees. The properties Nos. 80, 81 and 82 of Edapalayam Street were brought to sale in the auction held by the Official Referee and the successful auction purchaser was the first defendant herein, and the sale was confirmed in his name
7. The plaintiff has then obviously set up one P. B. Narayanaswami Naidu and the second defendant herein, viz., the next reversioners, to institute C. S. No. 273 of 1943 for a declaration that the mortgage decree in C. S. No. 178 of 1944 was not binding on them and for other reliefs. This plaintiff was impleaded as the first defendant in that suit. The auction purchaser was also subsequently impleaded as a party to that suit.
The suit was compromised and according to the compromise decree the auction purchaser was allowed to retain possession of the properties purchased by him in Court auction and his right to the suit properties was confirmed by the compromise decree.
8. It is in these circumstances that the plaintiff Mumjammal has filed this pauper suit contending that the decree and judgment in C. S. No. 273 of 1945 were obtained by collusion and fraud and that they are not binding on her and cannot affect her rights and interests in the properties mentioned in the plaint schedule and she as the daughter-in-law of the testator Ramaswami Naidu was entitled to receive maintenance at a fair and reasonable rate out of the properties of the testator and also reside in a portion therein, that the first defendant, the auction purchaser, must hand over to her 55 per cent, of the net income and allow her to live in a portion of the property till her death.
The plaintiff on the foot of these contentions claims Rs. 660 per annum from the first defendant till her death and also a sum of Rs. 1980 by way of arrears of maintenance, interests and costs.
9. The second defendant, as might be expected, sails with the plaintiff and in fact the plaintiff obligingly states in her plaint that the second defendant has been paying her Rs. 13-12-0 p. m. and that she does not seek to recover any amount from him and that she would be content if a decree is given to her entitling her to be paid a sum of Rs. 165 per annum by the second defendant out of the rents of the properties in Kondithope.
10. The first defendant contends that the properties are not liable for maintenance of the plaintiff as they were sold to discharge the debts borrowed by the plaintiff and binding upon the estate, that in all the prior proceedings to which the plaintiff was a party she never raised any claim for maintenance, that on the other hand in C. S. No. 275 of 1932, it was decided that she should get a share of maintenance only after satisfying the claim on the mortgage, that therefore these properties which were sold for just and binding debts are free of all liabilities, and that the right for maintenance can only be confined to the remaining Kondithope properties.
11. It is in these circumstances that the plaintiff seeks relief of interim maintenance. The law relating to the award of interim maintenance in cases of this nature has been settled by the recent Bench decision of this Court in -- 'Md. Abdul Rahman v. Tajunnissa Begum', : AIR1953Mad420 (A). Inasmuch as this decision does not appear to have been carefully understood always, it is worthwhile to examine the principles laid down in this decision.
The 'ratio dccidendi' of this decision is that interim maintenance should not be granted in suits for maintenance or partition where the status and the right of the claimant is hotly contested, supported by a volume of 'prima facie' evidence, documentary or circumstantial. To cite two illustrations. In this very decision the contest between Hajee Abdul Rahman and Tajunnissa Begum which was subsequently decided by me on the Original Side was as follows:
Tajunnissa Begum claimed to be the lawfully-wedded wife of Hajee Abdul Rahman and that a sum of money had been settled on her as dower at the time of her nikka and that she had been deserted and that she was entitled to maintenance at a particular rate as per agreement between herself and Hajee Abdul Rahman entered into at the time of the nikka. On the other hand, the hot contest of Abdul Rahman was that Tajunnissa was not his lawfully wedded wife but an imposter, and that therefore the question of Mehar did hot arise and that he did not enter into any agreement to maintain Tajunuissa at a particular rate as he, Abdul Rahman, denied the nikka itself.
This claim and the counter claim were supported by a weaHh of affidavits, documents and circumstantial evidence. In these circumstances the order of Panchapakesa Aiyar J. giving interim maintenance was set aside by the Bench on the ground that no interim relief ought to be properly granted when such a relief can be granted only by the decree after determination of the hotly contested points in controversy.
In other words it is not right for any Court as pointed out by Viswanatha Sastri J. in C. H. P. No. 662 of 1950 (Mad) (B) by passing an order really to decide tho suit presuming the allegations of the plaintiff to be truo for which there might be no warrant as mentioned by Jackson J. in C. R. P. No. 1312 of 1930 (Mad) (C), even before it is tried under cover of an inherent power which. is not warranted by the terms of Section 151, Civil P. C. as-pointed out in -- 'Latchanna v. Mailudora', AIR 1941 Mad 55 (D) following -- 'Gopal Saran Nara-yan Singh v. Sita Dcvi', : AIR1924Pat69 (E).
12. This does not mean that whenever the contesting defendants merely deny the claim of tho plaintiff and raise a so-called contest, interim reliefs can be denied which in fitting cases can be granted under Section 151, Civil P. G. In this very case if the dispute between Hajee Abdul Rahman and Tajuunissa Begum had been not about the status and right of Tajunnissa Begum but only about the quantum of maintenance or alleged prior payments, interim relief could certainly have been granted, providing suitable safeguards for the recovery of the money in case the claimant lost the suit.
This decision cannot be construed as an authority for refusing interim reliefs in all cases of maintenance, partition, etc., where vague and general allegations are made denying the plaintiff's claim. In a partition suit, for instance, if the claim is resisted on the ground that the plaintiff had already Got separated and properties had been allotted to him and this is supported by a wealth of details and 'prima facie' circumstantial evidence, or if tho alienees who will naturally be impleatled are able to show that their documents arc fully supported by consideration and the debts were for obviously binding purposes on the estate, the claim for interim maintenance would be rejected because the plaintiff can get that relief only after the determination of the points in controversy.
On the other hand, if the claim is resisted in regard to the extent of the properties to be divided the fraction of the' share claimed hy the plaintiff or about the mode of division or where a portion of the properties is claimed as self-acquired, then interim maintenance would not be refused and would be granted making suitable safeguards. Otherwise, a tyrannical and unjust manager would be able to starve a coparcener, kept out of the family and enjoyment of the properties, into submission and compounding of the controversy by taking a pittance.
Therefore, I would have granted interim maintenance in this case holding that the decision in. : AIR1953Mad420 (A) is not an impediment in the circumstances of this case if otherwise the plaintiff had shown that she has a substantial 'prima facie' case and if her status and right to claim relief are not hotly contested with a wealth of details and 'prima faciefds' circumstantial evidence.
But as contended for by Mr. Subramania Pillai, learned advocate for the first defendant, the relief asked for by the plaintiff is not tenable in view of the settled law as to how maintenance which is a personal right is not charged on the property, how right to maintenance can be defeated by a transfer of property for binding debts and how the doctrine of 'lis pendens' is not applicable to a suit of this nature.
13. In the case of maintenance of a Hindu widow as pointed out by Sri N. R. Raghavachariar in his excellent treatise, Hindu Law, 3rd Edn. (M. L. J. office, 1947--Page 246) and of which a new edition is long over due, it is of an indefinite character and not a charge on the estate of her deceased husband until it is fixed and charged upon the estate by a decree or by agreement: -- 'Mohini v. Purna', : AIR1932Cal451 (F).
The debts contracted by a Hindu or those hy which he is bound, just as the non-Avyavaharika debts of his father, -- 'Mt. Mallan v. Paramatma Das', AIR 1936 Lah 558 (G) take precedence over the right of maintenance of his wife or minor children, -- 'Jawahar v. Parduman Singh', AIR 1933 Lah 116 (H); -- 'Lakshman Ramchandra v. Satya-bhama Bai', 2 licim 434 (I). A widow's maintenance, when not charged on any property, cannot I be enforced against a 'bona fide transferee thereof for value without notice of the widow's right.
But if the purchaser for value had notice of her claim for maintenance, the widow can follow the property. The position would be the same in the case of a gratuitous transfer, even though the transferee had no notice of the widow's claim: See Section 39, Transfer of Property Act. In other respects her right to receive maintenance is one of an indefinite character which, unless made a charge upon the properly by a will, agreement or decree of Court, is only enforceable like any other liability in respect of winch no charge exists: -- 'Bharat-pur State v. Gopal Dei, 24 All 160 (J); -- 'Sharn-lal v. Banna', 4 All 296 (K); -- 'Ram Kumvar v. Ram Dai', 22 All 326 (L); 2 Bom 494 (I); - 'Jayanti Subbiah v. Mangamma', 12 Mad LJ 270 (M); -- 'Soorja Kocr v. Nath Baksh', II Cal 102 (N).
The texts which prohibit the transfer of property so as to deprive those persons whom tfie transferor is under a duty to maintain of the means of subsistence arc merely moral precepts and not legal prohibitions and the enforceability or otherwise of the transfer as against a claim to maintenance is to be judged in the light of the foregoing principles: Dayahhaga 1-45; 11-23, 24. In the light of the said principles 'prima facie' there cannot be a charge upon tho plaint schedule properties in the present case.
14. It is well settled that in the administration of a Hindu's estate, binding debts would take precedence over mere claims for maintenance, or residence on the part of the female members of the family: AIR 1936 Lah 558 (G); AIR 1933 Lah 116 (H);-- 'Sqmasundaram v. Unnamalai', AIR 1920 Mad 722 (O). A transfer of property for a debt incurred by the husband or by his father, or by the manager of his family for purposes binding upon the family, prevails over the claimant's right to maintenance even if the transferee had notice of the claim: provided the claim had not already been made a charge on the property transferred. 12 MLJ 270 (M); -- 'Gur Dyal v. Kaunsila', 5 All 367 (P); -- 'Sundar Singh v. Ramnath', AIR 1925 Lah 167 (q):--'Mt. Brij Raj v. Ram Dayal', AIR 1932 Oudh 40 (R); -- 'Jamiatri v. Mt. Malfm', AIR 1931 Lah 718 (S); -- 'Ramnnadan v. Rangamrnal*, 12 Mad 260 (T); 2 Bom 494 (I); -- 'Pranlal v. Chapsey' : AIR1945Bom34 (U); AIR 1920 Mad 722 (O); -- 'Ramkunwar v. Amarnath : AIR1932All361 ; -- 'Mt. Champa v. Official Receiver, Karachi', AIR 1933 Lah 901 (W); --'Kaveri Ammal v. Subba Ayyar AIR 1934 Mad 734 (X).
Besides, under Section 39, Transfer of Property Act, if a person has a right to receive maintenance from the profits of immoveable property, and such property is transferred, the right cannot be enforced against a transferee for consideration and without notice of the right, nor against such property in his hands. This appears to be the case here.
15. In regard to the doctrine of 'lis pendens', where the suit is to get the maintenance made a charge upon, immoveable property, any transfer) made during the pendency of the suit, not effected for the purpose of paying off any debt entitled to priority over the claim tor maintenance will be affected by 'lis pendens', created in the suit: --'Thimmannabhatta v. Krishna', 29 Mad 508 (Y); -- 'Raciha Madhub v. Manohar Mukherji', 15 Cat 756 (Z); -- 'Bazayat Hossein v. Doolichand', 4 Cal 402 (7,1); -- 'Jogendra v. Fulkurnari', 27 Cal 77 (Z2); -- 'Krishna Pattar v. Sinna Ponmi', AIR 1915 Mad 464 (Z3); -- 'Rattamma v. Seshachalam', AIR 1927 Mad 502 (Z4); -- 'Official Receiver, Cuddapah v. Subbamma : AIR1927Mad403 ; -- 'Seetha-lamanujacharyulu v. Venkatasubbamma, AIR 1930 Mad 824 (Z6); -- 'Ramachandra Gururao v. Kamala-bai', : AIR1944Bom191 (Z7); -- 'Rajagopala Clietti v. Kesava Pillai', AIR 19.15 Mad 126 (ZS); --Tirthabasi v. Trinayani Dasi', AIR 1951 Ori 308 (Z9). This does not appear to be the case here. .
16. In the light of this analysis, an interim order for maintenance before decree cannot be made as this is not a case where the plaintiff's right is not denied as in -- 'Devalbai v. Devandas', AIR 1933 sind 351 (Z10).
17. Then, turning to the relief of appointment of a Receiver, inasmuch as such applications are not unoften preferred in this Court in total disregard of the scope and object of Order 40, Rule 1, Civil P. C., it is worthwhile to reset the principles which should guide this Court in appointing Receivers. Order 40, Rule 1, Civil P. C. authorises a Court to appoint a receiver whenever it appears to it to be just and convenient to do so.
The matter is thus left to the discretion of the Court. The discretion conferred by this rule should not be exercised in an arbitrary and unregulated manner but cautiously, judicially and according to the legal principles after a consideration of the whole of the circumstances of the case: --Sivagna-nathamtnal v. Arunachellam Pillai', 11 Ind Gas 870 (Zll). A Receiver cannot be appointed merely because it is expedient or convenient to one of the parties to do so or because it will do no harm to do so: -- 'Kunhan Menon v. Kannan Menon', AIR 1924 Mad 482 (Z12).
A Receiver under this rule cannot be appointed merely because it is just to do so, unless it will also be convenient to do so (See the lucid discussion 'Appointment of Receivers' under Order 40, Rule 1, Note 14 of Vol. Ill of Chitaley and Annaji Rao's C. P. Code, 5th 1951 Edn.).
18. The provision of the English law corresponding to this rule (O. 40, R. 1), Section 45 of the Judicature Act, 1925, uses the words ''just or convenient'. But they have been interpreted to mean 'just and convenient' even in England. The principles by which the Court of Chancery in England was guided in appointing a Receiver arc staled by Lord Cranworth L. C. as follows :
'The Receiver, if appointed in this case must be appointed on the principle on which the Court of Chancery acts, of preserving property pending the litigation which is to decide the rights of the litigant parties. In such cases the Court must, of necessity, exercise a discretion as to whether it will or will not take possession of the property by its officer where, indeed, the property is as, it were, 'in medio', in the enjoyment of no one, the court can hardly do wrong in taking possession. It is the common interest of all parties that the Court should prevent a scramble...... But where the object ot the plaintiff is to assert a right to property of which the defendant is in the enjoyment, the case is necessarily involved in further questions. The Court, by taking possession at the instance of the plaintiff may be doing a wrong 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 interim interference, have caused mischief to the defendant, for which the subsequent restoration of the property may afford no adequate compensation.'
19. The principles which should guide Indian Courts in the appointment of a Receiver are three in number. Eirst of all, a plaintiff applying for the appointment of a Receiver must show 'prima facie' that he has a strong case and good tide to the property or a special equity in his favour and that the property in the hands of the defendent is in danger of being wasted; --'Muhammad Qasim Ravather v. Nagaraja Moopanar : AIR1928Mad813 . It is not enough for the plaintiff to show that he has a fair question to raise as to the extent of the right alleged as in the case of a temporary injunction, but he must go further and make out that he has a good 'prima facie' title requiring Court's protection and safeguarding pending litigation and which must be made out on the facts of that particular case. 'Guruswami Pandiyan v. S. K. P. Chinnathambirar', AIR 1919 Mad 157 (Z14).
Secondly, where the property is in media that is to say, in the possession of no one, a Receiver can readily be appointed. But where any one is in possession under a legal claim strong & compelling reasons are necessary for interfering with such possession : -- 'Sivaji Raja Sahib v. Aiswariyanaudaji Sahib', AIR 1915 Mad 926 (Z15); AIR 1924 Mad 482 (Z12). Thus the 'bona fide' purchaser of the property -- 'bona fides have to be presumed unless and until the contrary can be inferred -- in dispute should not be disturbed by the appointment of a Receiver unless there is some substantial and compelling ground for such interference.
Where there is 110 apprehension of waste or danger a Receiver will not be appointed merely on the ground that the applicant apprehends difficulty in obtaining possession 'of properly in the event of success or in realising mesne profits or the opposite party is poor or a woman. Specific acts capable of being tested should be alleged 21 MIJ 821 (Z11); AIR 1915 Mad 926 (Z15). Voilently stated vague allegations constitute no substitute for vacuum of facts.
Thirdly, an application for the appointment of a Receiver should always be made promptly and delay in making it is a circumstance unfavourable to such an appointment. But of course the matter should he considered judicially in all its aspects before being disposed of as there may be legitimate reasons for preferring an application after delay: -- Pattiuharakettu v. Mauavedan : AIR1936Mad966 . If all these conditions are satisfied, and it is found just and convenient to appoint a Receiver, the Court can exercise its discretion in favour of the applicant.
20. In this case none of these three conditions is fulfilled. I have shown how the plaintiff will have to establish many things before she is found entitled to the relief asked for. In other words, she has not shown 'prima facie' title. The properties have been in the possession of the firstdefendant as 'auction purchaser for over three yearsand hence the claim for arrears of maintenance ofthree years. This suit itself has been filed afterevery other device has failed and the delay is acircumstance unfavourable to the appointment of areceiver.
21. This is not also a case where the plaintiff is, as it were, without legitimate remedy for obtaining maintenance. But she deliberately and obviously on account of collusion is not doing so. The only way in which when there is a widow of a deceased coparcener, the surviving coparcener or one who has put himself into that position by an arrangement under a compromise, as in the case of the second defendant herein, can discharge himself of the obligation to maintain her out of the joint family property to which he has succeeded is not by showing that he has disposed of that property but by showing that he had applied the property for family purposes having priority over the widow s claim for maintenance.
The burden is undoubtedly upon him to prove such application and if he fails to discharge it, there is a personal liability on him to pay her the maintenance to the extent of the family property to which he has succeeded or the proceeds of that property : -- 'Chunilal v. Bai Saraswathi : AIR1943Bom393 (Z17).
22. Both these applications, totally devoid ofmerits, are dismissed with costs; one set.