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Ry. Sivaji Raja Sahib and anr. Vs. Ry. V. Aiswariyanandaji Sahib and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1915Mad926; 29Ind.Cas.485
AppellantRy. Sivaji Raja Sahib and anr.
RespondentRy. V. Aiswariyanandaji Sahib and ors.
Cases ReferredShadi v. Anup Singh
Excerpt:
receiver, appointment of - grounds--poverty of insolvency, if grounds--civil court, jurisdiction of, to interfere in magisterial proceedings under section 145, criminal procedure code--management or malversation--discretion of lower court--appellate court, power of, to interfere. - .....in a civil suit. this present suit was instituted as a result of that adjudication by the magistrate. the subordinate judge criticises at considerable length the conclusion of the sub-divisional magistrate regarding possession. although it is open to a civil court to come to a different conclusion from the magistrate on materials placed before it, the judge has no right to sit in judgment over the findings of fact the magistrate has arrived at, by a review of the evidence produced in the magisterial proceedings. the subordinate judge is not hearing, an appeal from the sub-divisional magistrate. the conclusion of the magistrate, five months after the death of the late rani, was that defendants had been in possession of the properties and that they should be maintained in that.....
Judgment:

1. The late Maharaja Sivaji of Tanjore died in 1855. The dispute in the present case relates to the properties which were endowed to certain temples by the late Rajah and to certain private properties belonging to the estate of the late Rani. The senior Rani, Kamakshi Boyi, succeeded to what is known as the Palace Estate as well as the temple properties. The defendants in this case claimed to be the sons of the adopted son of Rajah Sivaji. The plaintiffs allege that they are sons of the deceased Maharajah 'by ladies known as his sword wives.' The last of the Ranis, Muthu Sri Teejamba Boyi Saheba, died on the 3rd May 1912. The case for the plaintiffs is that they entitled to succeed to the management of the devasthanams and to enjoy the private properties in preference to the defendants, the validity of whose father's adoption they deny. The plaintiffs applied to the Subordinate Judge for the appointment of a Receiver pending the disposal of the suit. He granted their prayer. The defendants have preferred this appeal.

2. A large number of charges alleging mismanagement, malversation, waste, etc., were preferred against the defendants. Apparently before the Subordinate Judge only six of these charges were pressed for decision. He found four of them proved, and on the strength of this finding, made the order for the appointment of a Receiver.

3. Before dealing with the charges seriatim, it is necessary to mention that immediately on the death of the last Rani, disputes regarding the possession of the properties arose between the plaintiffs on one hand and the defendants on the other. On the 13th of August 1912 the Sub-Divisional Magistrate held that the possession of the defendants should be 'maintained', and directed the plaintiffs to establish their claim in a civil suit. This present suit was instituted as a result of that adjudication by the Magistrate. The Subordinate Judge criticises at considerable length the conclusion of the Sub-Divisional Magistrate regarding possession. Although it is open to a Civil Court to come to a different conclusion from the Magistrate on materials placed before it, the Judge has no right to sit in judgment over the findings of fact the Magistrate has arrived at, by a review of the evidence produced in the Magisterial proceedings. The Subordinate Judge is not hearing, an appeal from the Sub-Divisional Magistrate. The conclusion of the Magistrate, five months after the death of the late Rani, was that defendants had been in possession of the properties and that they should be maintained in that possession. He found against the plaintiffs' contention that they were peacefully in possession.

4. The question for consideration, therefore, is, whether the evidence let in justifies the order of the Subordinate Judge directing the appointment of a Receiver. No oral evidence was let in and the Court below acted solely on the affidavits filed by both the parties.

5. The first charge which the Subordinate Judge holds to have been proved is dealt with by him in paragraph 9 of the judgment. The charge relates to the lease of Mariyam-balpuram village for 20 years at the rate of Rs. 15 per pangu. It was contended that having regard to the rise in the price of paddy and seeing that under Exhibit G the parties were entitled to revert to the amani system after the termination of that lease, the rate of rent secured under the new lease is highly detrimental to the interests of the dsvasthanams. Mr. G.S. Ramachandra Aiyar, who has worked out the figures with reference to the deductions to be made under the earlier lease-deed, Exhibit G, has shown that the rate secured under the new lease compares favourably with what was payable under Exhibit G. The Subordinate Judge lays considerable stress on the fact that the sale price of paddy is at the rate of Rs. 2 per kalam. He has not paid sufficient attention to the decision of the Revenue Officer in Exhibit VIII, to the effect that the commutation rate in one of the temple villages is Rs. 1-4-0 per kalam. The market rate is different from the commutation rate which the tenants have to pay under the Estates Land Act. A certain average is arrived at in the later case in fixing the commutation rate, and it is upon that standard that the rent due from tenants has to be recovered. It is true that the defendants have with unseemly haste entered into leases for along period of time. It is pointed out that under the previous lease the period was 20 years and that generally the temple properties are leased out for a considerable length of time. It may be an error of judgment to grant long leases where the tendency of prices is to rise higher year after year. But that is no ground for considering that the defendants have wilfully surrendered rights belonging to the devastha-nams. We must hold that this charge has not been proved against the defendants.

6. The next charge is dealt with by the Subordinate Judge in paragraphs 10 and 11 of his judgment. The previous lease secures 65 kalams of paddy per veli in respect of the village of Kodikalur. The present lease for 20 years secures Rs. 80 per veli. At the commutation rate mentioned in Exhibit VIII this would not be an unfair rent. Here again the fact that the lease covers a long period is a matter for comment against the defendants. As against this, it is stated that the tenants were very refractory, that in faslis 1309, 1310 and 1311 the late Rani was able to collect only, at the rate of Rs. 7 per veli, that as a result of that there were legal proceedings under the Estates Land Act, and that in order there may be peace in the village and the amount may be recovered without litigation, the defendants were obliged to give a long lease at the rate already mentioned. We cannot say that this explanation is unsatisfactory. Where the tenants have been long on the land and have been accustomed to a particular rate of rent, the landlord will not be acting injudiciously in continuing that rate, if the result of his endeavours to impose a higher rate is likely to lead to litigation. We must hold that this charge is not substantiated against the defendants.

7. The Subordinate Judge held that the charges relating to the Thirupanthurithi village and Bommani Thottam were not proved. We see no reason to differ from him. In the second case especially, the opinion of a leading legal practitioner was obtained before the transaction was entered into, and we cannot say that the defendants acted recklessly in this matter.

8. The third charge which the Subordinate Judge held to have been proved, relates to Nalladi village. There are two complaints. One is that the sale of paddy to Gopalasawmi Chetty was at the rate of Rs. 1-12-6 per kalam, whereas the ruling price in the district was Rs. 2-9-0. The second complaint is that the defendants were not justified in allowing a commission of six pies per kalam to the tenant purchaser. There is room for doubt whether the purchaser was the tenant who was bound to measure the paddy to the devasthanam. But apart from, this, on the first question, we are not satisfied that the rate of Rs. 1-12-6 was not a proper rate. Exhibits 03, 04 and 05 show under what circumstances the paddy was sold. The plaintiffs produce two affidavits, Exhibits 0 and 01, sworn to by two merchants of Kumbakonam; to prove the rate at which paddy was selling at the time. The Subordinate Judge himself is of opinion that these two deponents may be referring to the price of old paddy. He has failed to take note of the fact that the village at which the paddy was stored was 17 miles from Mayavaram and 32 miles from Kumbakonam. The District Gazette containing the prices has not been produced by either side, and there is no evidence as to what the price of paddy was in the outlying villages. The affidavits give no particular's and afford no basis for ascertaining the price at Nalladi. We attach no value to the affidavits filed in the case. It is well-known that the cart-hire from a village to the market in towns will be considerable. That factor has not been taken into account by the Subordinate Judge in coming to a conclusion whether the rate of Rs. 1-12-6 was proper or not.

9. As regards the paying of brokerage or commission, we are wholly unable to agree with the lower Court that it is unjustifiable. Treating Gopalasawmi Chetti to be the tenant; it is clear from Exhibit O5 that he measured the paddy to the devasthanam at Nalladai; and that the defendants' agent wanted to sell the paddy. Then Gopalasawmi offered to purchase it from the agent. He settled the price at Rs. 1-12-6 and asked for a commission of six pies per kalam. The fact that the purchaser happened to be the tenant is no reason for holding that qua purchaser he should not be given the commission. In sales of paddy it is not unusual to grant a commission; we see nothing wrong iii Gopalasawmi having bargained for a commission of six pies per kalam.

10. The last of the charges relates to Prandhai Thottam. If the charge that was made in respect of this village is established, it would to some extent justify the order passed by the Subordinate Judge. The allegation is that the late Rani spent a sum of Rs. 7,000 for planting a mango tope and that the defendants wantonly iind recklessly destroyed that garden and sold away the mango trees. The Subordinate Judge is unable to find what particular sum of money was really spent by the Rani in improving the garden, although in more than one place he speaks of the heavy expense incurred by the late Rani. He does not find that the mango trees were cut. He does not find what were the number of mango trees which were planted. On the other hand the evidence shows that there were a large number of iluppai trees in this place, which were yielding to the devasthanam about Rs. 30 on an average per year. The defendants directed that the trees should be cut; they were sold at public auction and realised a sum of over Rs. 2,800. It seems to us that this act was one of prudent management and not of waste on the part of the defendants. Rupees 2,800 put out at the lowest rate of interest would secure a considerably larger income than what the illuppi trees were yielding to the devasthanam. It was stated that the defendants failed to take advantage of an offer to pay a premium by a lessee and to lease it out for Rs. 400 a year. We have no materials to judge of the solvency of the proposed lessee. We are unable to say that the defendants acted otherwise than honestly in not accepting that offer.

11. These are the specific charges that have been considered by the Subordinate Judge. In addition to these, Mr. Rangachariar drew our attention to the fact that the defendants are not in solvent circumstances, and that in the interests of the temple it is not desireable that persons of such poor means should be in charge of the properties. It is common ground that the properties are considerable and that the income from them is nearly a lakh of rupees a year. Mr. Rangachariar also draws our attention to the fact that the two defendants are young and inexperienced and that they are managing the properties through their agents in rotation. This, he suggests, will lead to difficulties in the recovery of the rent from the tenants; the system of management by rotation is well known in this country and the sanction of the Privy Council was given to it in Ramanathan Chetti v. Murugappa Chetti 29 M.P 283 : J.M.L.T. 327 : 16 M.L.J. 265 : 3 A.L.J. 707 : 8 Bom. L.R. 498 : 10 C.W.N. 825 : 4 C.L.J. 189 : 33 J.A. 139. We see no ground for the appointment of a Receiver because there is management by rotation. As has been pointed out in Beach on Receviers, saction 600, as a general rule, the poverty or insolvency of a trustee is not a ground for a Receiver, unless there be in addition thereto some danger or loss of the estate, vide Anonymous (2) and Hoivard v. Papera 1 Madd. 142 : 56 E.R. 54 Moreover in the present case the defendants are in receipt of pensions from the Government and are legatees under the Will of the late Rani in respect of the mukhasa properties. However, in order to, safeguard the interests of the temple we have resolved that pending the disposal of the suit the defendants should furnish security in the sum of Rs. 10,000 to the satisfaction of the Subordinate Judge for the proper management of the property.

12. Mr. Ranagachariar contended that the general rule that parties in possession should not be lightly displaced by the appointment of a Receiver, does not apply to cases of recent or disputed possession; and he quoted the analogy of Section 239 of the Indian Succession Act for this purpose. It is true that where property is in medio after the death of the last owner and a dispute exists as to who is entitled to that property, a proper procedure is to appoint a Receiver. That is often done in England and that principle has been accepted in this country. But where a party is in peaceful possession and that possession has been secured to him by an order of the Magistrate, the analogy of Section 239 cannot apply. The present case is more analogous to that of a person in whose favour a Probate in common form has been granted and a caveat is entered against his right to administer the estate. The case of Newton v. Ricketts 10 Beav. 525 : 16 L.J.Ch. 372n : 11 Jur. 662 : 76 R.R. 192 : 50 E.R. 584 quoted by the learned Advocate-General, establishes that in such circumstances a Receiver should not ordinarily be appointed. Lord Langdale in delivering the judgment of the Court says: 'It is satisfactory to find, that the authorities show, that such a state of things alone affords no right to relief, though it may, if connected with other sircumstances; induce the Court to interfere and protect the property.' A person who obtains possession after the Will has been proved in common form has only recent possession; and when that possession is disputed by the caveator, if a Receiver should not displace the party originally put in possession, we see no reason why, where a Magistrate has maintained a party in possession and his right is disputed by the opposing party, a Receiver should be appointed.

13. Mr. Rangachariar strongly pressed upon us the decision of Shadi v. Anup Singh 12 A.P 436 : A.W.N. (1890) 95 which lays down that the discretion of the lower Court should not be interfered with. If the facts were undisputed and the Court below had exercised the discretion in a particular way, ordinarily the Appellate Court would be unwilling to interfere with that discretion. But where, as in this case, we find that the Subordinate Judge has come to a wrong conclusion on the facts, we do not think that the decision in Shadi v. Anup Singh 12 A.P 436; A.W.N. (1890) 95 has any application.

14. There is only one other circumstance to be noticed and that relates to the prima facie title of the plaintiffs. The plaintiffs claim to be the legitimate sons of the deceased Rajah. They may be able to establish that in the suit. But it is permissible to point out that the Government in granting the pension to the sons of the adopted son of the late Rani did not recognise the rights of the plaintiffs. On the other hand, the defendants are in receipt of pensions from the Government; and prima facie their claim is superior to that of the plaintiffs. Under these circumstances we do not think that the plaintiffs have shown a better prima facie title than the defendants.

15. Although we have come to the conclusion that the order of the Subordinate Judge must be set aside we think it desirable in the interests of the trusts that the defendants should be called upon to furnish (a) quarterly accounts of their management to the Subordinate Judge, (b) that they should take the permission of the lower Court for any leases over a year, and (c) that they should within three months from this date furnish security for Rs. 10,000 to the satisfaction of the Subordinate Judge. We reverse the order of the lower Court-and dismiss the petition for the appointment of a Receiver. We make no order as to costs.

16. As regards the memorandum of objections, it is enough to point out that the alleged attempt to alienate the mokhasa properties will not prejudice the plaintiffs, as it would be affected by his Us pendens. There are no serious allegations of waste. We agree with the Subordinate Judge's conclusion on this matter. If the security is not given, leave to apply for further orders is given.


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