K.S. Venkataraman, J.
1. This Civil Miscellaneous Appeal has been filed by the contesting defendants 1 and 2 in O.S. No. 15 of 1967 on the file of the Subordinate Judge of Kumbakonam, against the order of the learned Judge appointing a Receiver of the properties of which the defendants claim to be in possession.
2. The dispute between the parties is over the right of succession to the office of Makkandhar or the Manager of the Thaikkal concerned in the suit. The Thaikkal was founded over a century back by a Hindu who came under the benign influence of a Muslim saint. He endowed, some properties for the Thaikkal. The Makkandhar, by birth a Hindu had to embrace Islam before becoming Makkandhar. The last Makkandhar was one such person named Balasubramania Rahim Bakish Pakkir Sahib. He died on 23rd February, 1967. The first defendant claimed to be the lawful successor on the ground of a nomination by the last Makkandhar in a registered will dated 13th December, 1964 (Exhibit B.-1). The first defendant is the sister's son of the last Makkandhar and also his son-in-law. The will recites that the first defendant was also adopted as son by the last Makkandhar. The first defendant further alleges that he embraced Islam and took possession of the Thaikkal and properties immediately.
3. The contention of the plaintiff Sadasiva Idangapirandhar is that the succession to the office is by election by the members of the Hindu family, that normally the senior most male member is so elected and that in fact he was so elected in this case on 23rd February, 1967 itself by resolution Exhibit A-1. He alleges that the first defendant was able to forestall the plaintiff by getting into possession because of the help of some police officer who was related to the first defendant. The suit was filed on 1st March, 1967 itself and the plain tiff filed the application for the appointment of a Receiver.
4. The matter was keenly contested before the learned Subordinate Judge Sri G.S. Krishnamurthi. But the learned Judge felt it was undesirable to pronounce any opinion even tentatively, on the conflicting titles to the properties. He thought that there was a scramble for possession and that that would suffice for the appointment of a Receiver.
5. The first point taken by Sri R. Gopalaswami Ayyangar, learned Counsel for the appellants, is that the order was pronounced on 19th April, 1967 during the summer recess of the Subordinate Judge's Court and it is void under the provisions of Section 30 of the Madras Civil Courts Act (III of 1873) as amended by Madras. Act XVII of 1959. The amendment provides for the appointment of a Subordinate Judge to be designated as the Vacation Civil Judge for each District Court during the summer recess and he will have jurisdiction co-extensive with the jurisdiction of all the Courts in the district during the vacation. Section 30(3)(b) which is relevant, runs thus:
The jurisdiction of the Vacation Civil Judge shall extend to all suits, appeals and other proceedings pending in, or cognizable by, any civil Court (whether a District Court, a Subordinate Judge's Court or a District Munsif's Court) in the district concerned when such Court is adjourned for summer vacation.
6. The contention of Sri Gopalaswami Ayyangar is that during the vacation, it is only the Vacation Civil Judge who will have jurisdiction and that Sri G.S. Krishnamurthi not being a Vacation Civil Judge had no jurisdiction to pass the order in question. It is stated that the application for the appointment of Receiver was heard On 15th April, 1967, the last working day, that the learned Judge said that he was going to adjourn the application beyond the vacation unless the parties came to some agreement in the meantime and that they could report on 19th April, 1967, on which day he would be attending Court for pronouncing some other judgments, as to whether they had arrived at any agreement. On 19th April, 1967, however, when the parties reported that they failed to reach at any agreement, the learned Judge heard the parties and pronounced the order.
7. It seems to me that the contention that during the summer recess the Vacation Civil Judge was the only Judge who had jurisdiction and that the regular Subordinate Judge of Kumbakonam had no jurisdiction to pass the order, is untenable. The provision vesting jurisdiction in the Vacation Civil Judge is not, in my opinion, intended to take away the jurisdiction which previously the Subordinate Judge had, to dispose of a matter which was properly pending before him if he was inclined to work during the vacation and if the parties raised no objection thereto; which is precisely the case here. The decision in Venkatesa Ayyangar v. Kamalammal : (1912)22MLJ212 and Rumdas Chakarbatti v. The Official Liquidator, Cotton Ginning Co. Ltd., Cawnpore I.L.R. (1887) All. 366 cited by Sri Vedantachari for the respondent plaintiff show that judgments pronounced on holidays are not void. The first point, therefore, fails. Further in view of the order I propose to make modifying the order of the learned Subordinate Judge, the point is academic and need not be pursued further.
8. On the merits of the order, it may not be quite correct to say, as the learned Subordinate Judge has done, that the question of title is immaterial; because the decisions generally say that the plaintiff seeking appointment of a Receiver, to oust the defendant in possession must prima facie show some good title. No doubt, the. decision in Ramsundar Dass v. Kamal jha Alias Kamal Das I.L.R. (1905) Cal. 741, cited by Sri Vedantachari states that it is undesirable to go into the question. But that was on the peculiar facts of the case. However, it is certainly true that what is said about the question of title for the disposal of the Receiver application should not prejudice the determination of the question at the regular trial.
9. Examining the question of title for the purpose of the Receiver application, it seems to me sufficient in this case to say that there is some prima facie evidence to show that in the past, succession was by nomination. A number of documents have been filed by the defendants to prove that and further there is an admission of the plaintiff to that effect before the Land Commissioner, Board of Revenue, under the Ceiling Act. The plaintiff has sought to explain away that admission; but for our present purpose, it may prima facie be taken as admission. The point which I am emphasising is that here is a case where the first defendant who is in possession has some prima facie title. It may be that the title may turn out to be defective at the trial. If this were all, it may not be quite justifiable to oust him and appoint a Receiver. But there are some disturbing features, namely, that the first defendant has stated in his counter-affidavit and his rejoinder that the Thaikkal possesses not even a pie of cash and never possessed any cash or movebles. This is rather surprising when the plaintiff alleges that the Thaikkal has nearly 200 acres of wet and dry lands., The explanation of the first defendant-appellant's learned Counsel is that according to the defendants, the Thaikkal owns Only about 23 acres of which 21 acres are dry and the rest of the properties are the private properties of the Makkamdhar though wholly-subject to a charge (in favour of the Thaikkal and in favour of the Hindu sharers). The fact also remains that the last Mukkamdhar failed in the suit O.S. No. 425 of 1963 on the file of the District Munsif of Kumbakonam which was filed by him for declaration that the properties mentioned in the plaint were not wakf properties. No doubt, the judgment is under appeal. But there is prima facie the finding of a Court against him. The first defendant is adopting the same stand now. Under these circumstances, it seems to me that it is not a case where the first defendant can urge that his possession should not be disturbed. Considering the facts and the circumstances of the case, it seems to me that it will be just and convenient to appoint more than one receiver on the following lines:
An Advocate-Receiver will be appointed as receiver of the properties in the possession of the tenants (about 110 acres). With regard to the pannai lands of 23 acres 55 cents which are now in the possession of the first defendant, the first defendant will be appointed as Receiver of the bulk of the lands of an extent of 1697 acres and the plaintiff will be appointed as Receiver in respect of 6 acres and 58 cents. The details of the pannai lands have been furnished by Sri Sadagopan, learned Counsel for the appellants and they are not disputed before me. 6 acres and 58 cents of which the plaintiff will become Receiver are the following
(1) An extent of 3 acres 66 cer.ts out of 3 acres 91 cents in S. No. 135 (plaint item 107)
(2) An extent of 2 acres 45 cents out of 3 acres 45 cents in S. No. 136/1 (plaint item 108).
(3) An extent of 47 cents in S. No. 150/2 (plaint item 111).
The following will be the lands of which the first defendant will be the Receiver. PazhayarS. No. Acres Cents291 2 3283-2 3 19282-1 0 67263-1 1 00263-5 0 09233-1 0 70263-4 0 81264-1 0 79_____________9 28_____________Vadakkupattam110-2 0 06116-4 0 01131-1 1 72131-3 0 78132-1 0 73133-2 0 50134-1 2 97117-3 0 92_____________7 69_____________Total 16 97
10. Each, of the parties, namely, the first defendant and the plaintiff will furnish security at the rate of Rs. 200 per acre in the Subordinate Judge's Court before becoming Receivers. They should furnish securities within 15 days from now.
11. Sri S. Kothandaraman was appointed Receiver. His name, however, has not been approved finally by the District Court for inclusion in the panel of Receivers. He does not, therefore, want to continue as Receiver. The two Receivers who are in the panel of Receivers are Sri Sambasiva Iyer and Sri Sundaresan, according to the statement of the learned Counsel Sri Sadagopan. Sri Sambasiva Iyer will be appointed as Receiver for 110 acres, and to be in charge of the management of the Thaikkal. He can continue Abdul Razack for doing the religious work in the Thaikkal. The Receiver need not take possession of the 46 acres which are in possession of the Hindu sharers.
12. It is made clear once again that what I have said, should not in any way prejudice the rights of either party on the questions which they may agitate at the trial of the suit, and the observations have been made purely tentatively in regard to the present application.