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Kumarasawmy Pillai and anr., Vs. S. Pasupathia Pillai and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in61Ind.Cas.605
AppellantKumarasawmy Pillai and anr.,; Rajarathnam Pillai and anr. And; Seshammal
RespondentS. Pasupathia Pillai and ors.
Cases ReferredBaigopala Surya. Row v. Basivi Reddy
Excerpt:
.....to withhold the rents due by them to the temple, assuming in favour of the defendants that the rent-deeds executed by them are valid, the grounds urged by them for withholding payment of the large balance of rents due by them being prima facie of a very weak character. the subordinate judge shall have power to extend the time on good grounds for a farther period not exceeding one week, if they pay the amounts of all these rents within the 31st january 1920 into the court, the order appointing a receiver will stand cancelled, the security to be given by each of the defendants nos. should now invoke the authority of those very same lease deeds which in his plaint he impugned as a collusive and invalid and should seek to enforce that condition of the leases which provides that, on..........respectively by their creatures defendants nos. 4, 5 and 6; that ha did not consent to accept the rent-deeds which stand in his name also ; that defendants nos. 4, 5 and 6 are persons of no status or property, and that the leases should be avoided as they were given by the defendants nos. 1 to 3 in breach of trust. the leases provided for payment of instalments of paddy rent in the month of november (after the kuravai harvest), and in the months between january and april (after the samba harvest), a small sum in cash being also payable for the rent of punja lands.2. as regards the rent payable between january and april 1919 under the rent-deeds, the defendants nos. 4, 5 and 6 have made default to the following extent, respectively, according to the tenor of the lease deeds. the fourth.....
Judgment:

Sadasiva Aiyar, J.

1. These are appeals against the order of the Subordinate Judge of Kumbakonam appointing a Receiver for the lands belonging to Pasupatheswara Swami temple near Kumbakonam. The plaintiff and the defendants NOs. 1 to 3 are the four hereditary trustees of the temple. The defendants Nos. 4, 5 and 6 have each executed a separate registered rent-deed in favour of the plaintiff and the defendants Nos. 1 to 3 jointly; each of the former has thus become the sole lessee of one set of lands belonging to the temple. The plaintiff alleges in his plaint that these leases were really taken for the benefit of the defendants Nos, 1, 2 and 3 respectively by their creatures defendants Nos. 4, 5 and 6; that ha did not consent to accept the rent-deeds which stand in his name also ; that defendants Nos. 4, 5 and 6 are persons of no status or property, and that the leases should be avoided as they were given by the defendants Nos. 1 to 3 in breach of trust. The leases provided for payment of instalments of paddy rent in the month of November (after the Kuravai harvest), and in the months between January and April (after the Samba harvest), a small sum in cash being also payable for the rent of Punja lands.

2. As regards the rent payable between January and April 1919 under the rent-deeds, the defendants Nos. 4, 5 and 6 have made default to the following extent, respectively, according to the tenor of the lease deeds. The fourth defendant has defaulted to pay about Rs. 4,714 of the rent due by him, the fifth defendant has made default to the extent of about Rs. 5,052. Sixth defendant has made default to the extent of about Rs. 5,052. The rent-deeds provide that, if default is so made, the temple can enter into possession without reference to the term of seven years (ending on the 30th January 1925) mentioned in the rent-deeds, The plaintiff had applied for the appointment of a Receiver in January 1919 itself. Mr. C.V. Visvanatha Sastriar, the then Subordinate Judge, passed an order on that petition on the 4th February 1919. Paragraph 9 of the order is as follows: 'I therefore, order defendants Nos. 4, 5 and 6 do pay out of the rents due by them' (to the trustees) under their respective lease-deeds 450 kalams each to defendants Nos. 1, 2 an<&3. The rest of the rents due to them' (that is, the trustees) 'will have to be paid by them into Court. The paddy rent due by them will be converted into money, the paddy being sold by them (after giving proper notice to the plaintiff) to the person who offers the highest price, the money rent due by them will also be paid into Court. In case the defendants Nos. 4, 5 and 6 do not obey the conditions imposed on them by this order, they will render themselves liable to be removed from possession and a Receiver will have to be appointed in respect of the properties.' As I said, this order was passed on the 14th February 1919. The defendants Nos. 4, 5 and 6 have committed the further defaults in making payments in accordance with this order to the extent of fifteen thousand and odd rupees, as already stated. So a further application was made by the plaintiff for the appointment of a Receiver and Mr. Viswanatha Sastriar's successor passed the order, dated 7th October 1919, against which these appeals have been filed, No doubt, as the Subordinate Judge says, 'the matter has to be decided or broad facts made oat primi facie and not entering into details at this stage.' The defendants Nos. 4 to 6 have not act up to the order of the 14th February 1919 ii which they were warned that a Receive would be appointed, and that they would bf ejected if they did not obey the order Their excuse for disobedience is that the hoped against hope that they would be at to obtain from the Samba harvest sufficient paddy to pay the rents due by them according to the rent-deeds executed by them but they found that they were able to realise only much less and that, according to the custom in the Tanjore District, they were entitled to call upon the temple to harvest the crops which ware below the usual yield to give the lessees some portion and to take the balance as fully satisfying the temple's claims for rent of the year. Treating the matter or the broad facts made out, prima facie I an not inclined to hold that the defendant Nos. 4, 5 and 6 have put forward a sufficient excuse for disobeying the order of February 1919. On the covenants in the rent-deeds, they can be ejected and the temple are enter upon the lands in their possession, Having regard to these facts, the Subordinate Judge thought that the interests of the temple trust were being jeopardized by the quarrels between the trustees and by the lessees taking advantage of such quarrels to withhold the rents (a very large sum) due by them to the trust. He, therefore, considered, (to use the language of Order XL, Rule 1 in the Civil Procedure Code), that it was just and conveuient to have a Receiver appointed, so that the large portion of the extensive income of the temple may be directed and turned into channels so as to be useful and beneficial to the temple, viz., for the discharge of the debts, etc, As regards the questions: (1) Whether the defendants Nos. 1 to 3 are the real lessees themselves; (2) whether the plaintiff consented to the lease as alleged by the defendants, and (3) whether the leases were granted for much lower rents than are reasonable, all these questions cannot be answered even provisionally at this stage on the records as they stand. But on the broad ground that, clearly, the interests of the trust are anyhow being jeopardised I think the appointment of a Receiver is desirable so long as the defendants Nos. 4 to 6 are trying to withhold the rents due by them to the temple, assuming in favour of the defendants that the rent-deeds executed by them are valid, the grounds urged by them for withholding payment of the large balance of rents due by them being prima facie of a very weak character. The only modification in the lower Court's order which I am, therefore, inclined to make is that, if the defendants Nos. 4, 5 and 6 give sufficient security for the arrears due by them respectively, that is, (approximately) of the value of Ra. 4,714, Rs. 5554 and Rs. 5,052 and also for the Kuravi rents due by them on the 30th November namely, (approximately), of the value of Rs. 1,050, Rs. 1,625 and Rs. 1,225 respectively within one week of the date of the receipt of the order herein, to the satisfaction of the Subordinate Judge of Kumbakonam, the order appointing a Receiver shall remain in suspense. The Subordinate Judge shall have power to extend the time on good grounds for a farther period not exceeding one week, if they pay the amounts of all these rents within the 31st January 1920 into the Court, the order appointing a Receiver will stand cancelled, The security to be given by each of the defendants Nos. 4, 5 and 6 will be separate and the suspension or cancellation of the Receiver order will also take effect separately in favour of that particular defendant who gives security and as regards the respective lands in his possession separately.

3. As regards Order XL, Rule 1(2), Civil Procedure Code, the Court has full power to put the Receiver appointed by it in possession of properties, removing any of the parties to the suit from such possession, A party has always the right to remove himself from possession even if Order XL Rule 1(2) applies to a case where possession is not with a third party. Order XL, Rule 1(2) prevents the Court from ejecting a person not a party to the suit unless some one or mere or all of the parties to the suit have such a right. This was held by myself and Tyabji, J., in Appeal agamat Order No. 8 of 1912. That the plaintiff, even if he succeeds, can only get joint possession with defendants Nos. 1, 2 and 3, and does not pray for ejecting them has, in my opinion nothing to do with the power of the Court to appoint a Receiver to take possession t of the properties on behalf of all parties t or a single party who might be entitled ( to possession in the result. [See Venkata , Baigopala Surya. Row v. Basivi Reddy 26 Ind. Cas. 986 where oldfield, J., and myself held that at j the instance of a simple mortgage-decree-holder who was not entitled to possession at all a Receiver can be appointed in an appropriate case dispossessing the owners.

4.The defendants Nos. 4 to 6 shall not remove the paddy harvested from the lands included in their respective leases from the threshing floor before they furnish security. The application to appoint the defendants Nos. 1 to 3 themselves as Receivers is in any event rejected and their appeal (Appeal against Order No. 291 of 1919) is dismissed The lower Court's order as to costs will stand. The parties will bear their respective costs in this Court. The cases are adjourned for further orders for two weeks for the lower Court to report if security has been furnished.

Spencer, J.

5. Mr. K. Srinivasa Aiyangar, who appeared for the defendants Nos. 5 and 6, who are the appellants in Appeal against Order No. 290 of 1919, conceded that he had no objections to the appointment of a Receiver for the collection of rents provided that the leases under which his clients are in occupation of certain portions of the suit-property were not annulled pending the result of the suit and provided that actual no session was not taken by the Receiver. It is a euripus thing that in this suit in which the plaintiff sued for having certain lease deeds declared to be nominal transactions not binding on the temple and for getting them cancelled, he (the plaintiff; should now invoke the authority of those very same lease deeds which in his plaint he impugned as a collusive and invalid and should seek to enforce that condition of the leases which provides that, on failure to pay the rent by the due date, the lessors may enter upon the lands without taking the permission of the lessees and may regard the lease deeds as cancelled. The plaintiff cannot be allowed to blow hot and cold. If the lease deeds are valid, then his suit fails and must be dismissed id the application for the appointment of Receiver must go with it. If the lease-deeds are invalid, then the plaintiff must IOW by what right he claims to enter to actual possession of the temple lands in opposition to the will of the majority of le trnstees, without notice, and without pinging a suit for ejectment of the persons present occupation. By the appointment E a Receiver a Court is not authorised remove from the possession or custody property any person whom any party 3 the suit has not a present right to remove, see Order XL, Rule 1(2), Civil procedure Code. The words any person re sufficiently wide and, in my opinion, could not be confined to persons who are lot parties to the suit as was held in an in reported case of this Court (Appeal against Order No. 8 of 1912); but even if this is implied by those words, I consider that it would not be just and convenient that a plaintiff should by a side wind, so to speak, through the means of in interlocutory application, get more than be could get if he finally succeeded in his suits. The power to enter upon the land by the Receiver is one that would have to be obtained by a decree in a suit for ejectment against the lessees of the defendants Nos. 1 to 3 unless the lessees agreed to surrender possession voluntarily,

6. The plaintiff and defendants Nos. 1 to 3 are hereditary trustees. One trustee has no right to eject another trustee at his pleasure. He must, with leave of the Advocate-General, bring a suit for removing the other trustees or for framing a scheme for management of the trust. Till this is done, he has no present right' to remove them from the possession of the suit properties. The present suit is only for a declaration of the plaintiff's title to joint possession with defendants Nos, 1 to 3. He cannot be given a relief that would be inconsistent with that prayer in paragraph 22 (b) of his plaint. The Receiver, when appointed, would be invested with such powers as now exist in the parties and he cannot be given any higher rights than the parties at the present time possess against their tenants. The term of the present lease deeds has not expired and it would require the concurrence of the majority of the trustees to alter them. Such objections cannot be overcome by the mere device of making the tenants parties to this declaratory suit, I am of opinion that, in the present state of things the Receiver should not be put in actual possession of the property.

7. The difficulties which arose owing to the alleged failure of crops have led to the present application of the appointment of a Receiver owing Io defendants Nos. 4 to 6 falling into arrears with their rent, In the previous proceedings the former Subordinate Judge put defendants Nos. 4 to 6 on terms and ordered that if the defendants did not pay certain sums into Court, a Receiver would have to be appointed in respect of the properties. As they did not appeal against that order and as they have made default owing, as they allege, to failure of crops, they cannot entirely be excused from the consequences of their default, and, therefore, I am prepared to agree with my learned brother that the order of the lower Court as to the appointment of a Receiver may be upheld, subject to the condition stated in his judgment that, if the parties give proper Security within a week, that order will stand vacated. But I think that, if the condition is unfulfilled, and a Receiver is appointed he should not be allowed to disturb the actual possession of defendants Nos. 4 to 6, nor does the lower Court's judgment appealed against provide for his doing so. 1 agree that the appeal of defendants Nos. 1 to 3 to be themselves appointed Receivers should be dismissed,

8. These appeals coming on for final hearing this day, after receipt of the reports called for from the Subordinate Judge of Kumbakonam in pursuance of the order contained in the above judgment and of the order of this Court herein, dated 2nd December 1919, suspending, till 31st January 1920, the order of the Court of the Subordinate Judge of Kumbakonam, dated 7th October 1919, in I.A. No. 491 of 1919 in Original Suit No. 9 of 1919, appointing a Receiver only in respect of the lands leased to the appellants in Appeal against Order No. 290 of 1919 (Defendants Nos. 5 and 6 in Original Suit No. 9 of 1919) and not suspending the paid order of the lower Court as regards the lands leased to the appellant in Appeal against Order No. 293 of 1919 (fourth defendant in Original Suit No 9 of 1919) and calling for a report from the Subordinate Judge of Kumbakonam to be submitted, within 7th February 1920, as to whether all or any of the said defendants Nos. 4, 5 and 6 have paid the amounts of the arrears of the rents due by them mentioned in the above judgment the Court delivered the following


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