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Jambagavalli Ammal Vs. Govindaraja Kandlar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai High Court
Decided On
Case NumberLetter Patent Appeal No. 40 of 1977
Judge
Reported inAIR1980Mad103
ActsCode of Civil Procedure (CPC), 1908 - 0rder 40, Rule 1
AppellantJambagavalli Ammal
RespondentGovindaraja Kandlar
Appellant AdvocateK. Subramanian, Adv.
Respondent AdvocateSridevan, ;G. Masilaman, ;R. Balachander and ;G. Narasimhalu, Advs.
Excerpt:
.....panchayatdars. this cannot make any difference because in praesenti there is no division of the properties by metes and bounds by the parties. but they have agreed that in the course of a future joint activity, they would so divide the property as between themselves in accordance with the mode of division suggested by the panchayatdars and that suitable documents would be executed for that purpose. it is therefore clear that the document in question is neither an instrument of partition nor an agreement to divide the properties as between the co-owners, but it is purely a record of an arrangement with the avowed intention of executing documents in the future so as to secure individual title over the properties in question by the contesting claimants. therefore, the document in..........how and in what manner and in what circumstances defendants 1 and 2 entered into possession of the suit properties. it is in the background of such. facts, the order of paul j. has been appealed against by the appellant, who seeks for the restoration of the order of the learned subordinate judge, who appointed an advocate on the panel of receivers to take charge of the suit properties pending disposal of the suit.3. mr. para saran, learned counsel for the appellant, would say that this is a fit case where in a receiver has to be appointed under order 40, rule 1 c. p. c, not only for the purpose of the preservation of the suit properties but also for the avoidance of any apprehension on the part of the appellant that the properties are likely to, be wasted or mismanaged in the course of,.....
Judgment:
1. This appeal directed against the order of Paul who, while setting aside the order of the learned Subordinate Judge of Kumbakonam , directed that the respondents do continue in possession of the proper ties and held that no case had been made for the appointment of a receiver which would result In the dispossession of the properties from the possession of the respondents. In an elaborate judgment, the learned Subordinate Judge came to the conclusion that, as there were rival claims an to possession of the properties between the appellant, who is rightfully entitled to them under the personal law, and the respondents who claim such a right only through two Wills Executed by the husband of the appellant, in order to end the controversy, it would be in the interests of all parties concerned and Above all it is just and convenient that the properties are in custodia legis through a receiver appointed by, the court. Paul J. held otherwise.

2. One Muthusami died on 19-9-1976, leaving behind him his widow, the appellant, who was the plaintiff in the action. He left behind several properties. The plaintiff's case was that though the properties stood in the name of Muthuswami they are her properties as tier 'father, who was affluent purchased the said properties in the name of the son-in-law and that she was entitled to all those properties in such a capacity. In the alternative, she pleaded that as the wife of Muthusami she was the Class 1 heir entitled to possession of such properties which stood in the name 'of Muthuswami. Defendants 1 and 2 are the stepbrother's son and grandson of Muthusami. The conjoint case of the defendants appears to be that they are the legatees expressed to be so under the two registered Wills executed by Muthuswami some years before his death and that they were in possession thereof pursuant to that status accredited to them by Muthuswami not only when he was alive but also because of his intentions, which are to be gathered from the two, wills referred to. The appellant's case is that Muthuswami could not have executed such Wills and the serious controversy between the parties apparently in whether those two Wills are true, valid and genuine and executed by Muthuswami as contended by defendants 1 and 2. This is a very serious contention which has to be adjudicated in the course of trial. But for the Wills, defendants 1 and 2 would not be entitled to the properties or to possess them. Realising this peculiar position, defendants 1 and 2 would say that even during the lifetime of Muthuswami, they were inducted into the properties and they continued to be in possession thereof after the death of Muthuswami pursuant to the above said Wills. In answer to this, the plaintiff-appellant would say that as Muthuswami was not enjoying good health, he asked defendants 1 and 2 to look after the properties as his representatives or attornies and not with the intention of inducting them into the properties and contemporaneously vesting in them the right to possess them after his death. Here again, there is a controversy as to how and in what manner and in what circumstances defendants 1 and 2 entered into possession of the suit properties. It is in the background of such. facts, the order of Paul J. has been appealed against by the appellant, who seeks for the restoration of the order of the learned subordinate Judge, who appointed an advocate on the panel of receivers to take charge of the suit Properties pending disposal of the suit.

3. Mr. Para saran, learned counsel for the appellant, would say that this is a fit case where in a receiver has to be appointed under Order 40, Rule 1 C. P. C, not only for the purpose of the preservation of the suit properties but also for the avoidance of any apprehension on the part of the appellant that the properties are likely to, be wasted or mismanaged in the course of, the hearing of the suit. Apart from mere, apprehensions,

The contentions of the appellant cannot be lightly brushed aside as mere surmise pretences. On the other hand, Mr. Sridevan, would say that as defendants 1 and 2 were looking after the properties during the lifetime of Muthuswami and as there are two registered wills said to have been executed by Muthuswami when he was alive and as, in those circumstances, they are entitled to be in possession of these properties, their factual possession as on date should not be disturbed, and in any event, they may be appointed as receivers under Order 40, Rule 1 C. P. C.

4. In a case which arises under Order 40, Rule 1 C. P. C., the primary thing which has to be looked into by a court before the wishes of the parties are acceded to is to see how best the suit properties could be preserved without being wasted. The responsibility in courts becomes all the more greater if there is a race as between the two competing parties to possess the suit properties, In the instant case, the widow is claiming possession in her own right under the Hindu Succession Act. The defendants are claiming such possession, under the Succession Act as legatees under the Wills. These are matters which have to be gone into and adjudicated upon finally after the trial court enters on a trial of the suit, hears parties, peruses the documents and renders its ultimate decision thereon, Till then it is imperative for courts to see that the suit properties, over which such conflicting claims are projected, are not only preserved but are kept without being wasted or without any prejudice, being caused to any one of the parties to the litigation by any overt or covert act on the part of the other party to it. It is only to create a harmony and not to ferment disharmony that the intendment of Order 40, Rule I C. P. C. should be perpetrated. If the primary intention is to keep such harmony between the parties, then it would be necessary to disturb the possession of one of the parties to the suit over the suit properties and vest such possession in an independent body so as to safeguard the interest of all parties concerned. In view of the admitted controversy as detailed by us in the earlier portion of our order, we are unable to agree with Paul J. that this is not a case in which the appellant was only pleading her case to achieve her ends. But she was trying to impress on the Court that the properties should be preserved during the pendency of the suit, so that the rights of the contending parties may be finally adjudicated upon on merits and thereafter possession is secured by the party declared to be so entitled to it. We, therefore, feel that it is just and convenient that the suit properties should be with a third party receiver nominated by the trial Court and he shall be the receiver in charge of the suit properties. He shall, of course, take directions from the trial Court for the purpose of managing the properties and for doing such of the things as are necessary for the Preservation of the same for the benefit of all concerned. The appeal is allowed and the order of the Sub judge restored.

5. As the controversy is between the widow and the step-brother's son and grandson of Muthuswami and as it ought to be settled as early as possible. We are of the view that the trial Court should give preference to this suit. For this purpose, the trial court shall list the suit immediately after the summer vacation, to wit, in June 1979 and thereafter take it up from day to day and complete the trial.

6. The appeal is allowed and there will be no order as to costs,

7. Appeal allowed.


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