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Kapavarapu Venkata Achyuta Rao and anr. Vs. Kapavarapu Srinivasaswami and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai
Decided On
Reported inAIR1948Mad396; (1948)1MLJ54
AppellantKapavarapu Venkata Achyuta Rao and anr.
RespondentKapavarapu Srinivasaswami and anr.
Excerpt:
- - there are vaious allegations in the affidavit in support of the application wherein it is stated that the second defendant has borrowed large sums of money, he having borrowed sums from kabuli money-lenders as well......to help them in fighting the litigation against the government for establishing their title to the suit property. it is unnecessary to deal at great length with this litigation. suffice it to say that by the decision of this court in 1941 it was declared that defendants 1 and 2 were the reversioners to the estate of papamma. as a result of that decree, defendants 1 and 2 were put in possession of the property and a sum of rs. 22,000 and odd was given to them as mesne profits and costs.2. now, the fifth defendant had entered into an agreement dated 17th october, 1936, whereby it was agreed that in addition to the re-payment of the sum of rs. 12,000 advanced by her for meeting the expenses of the litigation, defendants 1 and 2 should give one-third of the share of the properties which they.....
Judgment:

Govinda Menon, J.

1. This is an appeal against the order of the learned Subordinate Judge of Chicacole appointing a receiver for managing the properties involved in O.S. No. 61 of 1944 on his file. The appellants in this Court are the first and second defendants in the suit. The third and fourth defendants are alienees of small portions of the property involved in the suit from defendants 1 and 2. The fifth defendant is the Rani of Jaggampet who had advanced money to the first and second defendants for the purpose of fighting litigation with the Provincial Government regarding the title to the property sought to be partitioned. The plaintiffs are a brother and sister, the children of the half brother of the first and second defendants. The properties which are the subject-matter of this suit belonged to one Kapavarapu Papamma who died some years ago. As there were doubts as to whether her adopted son's descendants, the plaintiffs and defendants 1 and 2 were reversioners under the Hindu Law to her property, the Government took possession of the same on escheat. From the evidence it is clear that the first and second defendants approached the fifth defendant to help them in fighting the litigation against the Government for establishing their title to the suit property. It is unnecessary to deal at great length with this litigation. Suffice it to say that by the decision of this Court in 1941 it was declared that defendants 1 and 2 were the reversioners to the estate of Papamma. As a result of that decree, defendants 1 and 2 were put in possession of the property and a sum of Rs. 22,000 and odd was given to them as mesne profits and costs.

2. Now, the fifth defendant had entered into an agreement dated 17th October, 1936, whereby it was agreed that in addition to the re-payment of the sum of Rs. 12,000 advanced by her for meeting the expenses of the litigation, defendants 1 and 2 should give one-third of the share of the properties which they expected to get as a result of the suit to the plaintiffs who are their nephew and niece. According to the Hindu Law, since the half-brother of defendants 1 and 2, the father of the plaintiffs, died before Papamma, they are not entitled to any share in the properties. Probably ex gratia the fifth defendant wanted to help these destitute people as a consideration for her advancing this sum of money. It has also to be mentioned that the fifth defendant was appointed trustee for this one-third share of the properties the plaintiffs being the beneficiaries thereof. The fifth defendant assigned that right under the agreement to the plaintiffs, and the plaintiffs brought O.S. No. 61 of 1944 for a partition of their one-third share of the properties and for mesne profits. Some time after the filing of the suit an application for the appointment of a receiver was also filed.

3. The first defendant is a lunatic and is represented by a guardian. The second defendant is the younger brother of the first defendant and has been assailed in the plaint and also in the affidavit in support of the application, as a person who has wasted property incurring, large sums of money as debts. It is significant to note that in paragraph 18 of the affidavit for the appointment of a receiver it is stated that the second defendant spends on an average Rs. 15 per day on his drink alone. This statement is not categorically and specifically denied in the counter-affidavit at all except in a most general way. There are vaious allegations in the affidavit in support of the application wherein it is stated that the second defendant has borrowed large sums of money, he having borrowed sums from Kabuli money-lenders as well. A perusal of that affidavit shows that the second defendant is a person who is chronically indebted. The answers to these allegations contained in the counter-affidavit of the second defendant are certainly not satisfactory. They are evasive and the various answers are not to the point in answering the allegations.

4. When the suit itself came on for final hearing on the 25th March, 1947, as a part-heard suit--since some evidence had been already recorded before--defendants 1 and 2 were absent. Their counsel reported no instructions. So they were declared ex parte. Further evidence was taken on behalf of the plaintiffs and the learned Judge passed an ex parte decree in accordance with the prayer in the plaint as is found from his judgment. The application for the appointment of a Receiver also came on for final hearing on the same date. The learned Judge in a short order has appointed a receiver and given some directions as regards future'management of the property. The reasons given by the learned Judge are that the second defendant has been embarking upon a career of extravagance and waste and unless that is checked the plaintiffs will not be able to realise anything under the decree that they may obtain in the suit. It is also stated that there is every likelihood of their being involved in interminable litigation. Evidence was adduced before the learned Judge that even after the filing of the application for the appointment of a Receiver the second defendant had been borrowing monies. On these grounds he exercised the discretion vested in him judicially and held that it is just and convenient to appoint a receiver in the circumstances of the case.

5. Mr. Y. Suryanarayana for the appellants contends that the learned Judge ought not to have appointed a receiver as regards the two-third share of the properties because, according to him, the subject-matter of the litigation is only one-third of the properties and even if the plaintiffs succeed, they would get no rights as regards the two-thirds. He also contends that the parties are tenants-in-common and there is no question of joint family involved in. this case. His argument leads to this; that in a suit in which a tenant-in-common asks for his share of the properties alleging waste and damage against the other tenants-in-common no receiver can be appointed; for in all such suits where a tenant-in-common claims his share, there will be remaining shares left for the defendants tenants-in-common which cannot be interfered with by being taken into the custody of the Court. In my opinion such an argument is untenable and cannot be accepted. The course of this litigation and the way in which the second defendant has been conducting himself all these years are proof positive that if there is any case in which a judicial discretion has been wisely exercised it is this. Having gone through the affidavit and counter-affidavit and also the plaint and written statement in this case, I see no reason to differ from the learned Judge who has considered all the matters before him and come to this conclusion. The appeal is accordingly dismissed with costs.

Frederick William Gentle, C.J.

6. I agree and have nothing to add.


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