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Abhoyeswari Dabi Vs. Sidheswari Dabi - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKolkata
Decided On
Judge
Reported in(1888)ILR15Cal818
AppellantAbhoyeswari Dabi
RespondentSidheswari Dabi
Cases ReferredNorth London Railway Co. v. Great Northern Railway Co. L.R.
Excerpt:
receiver, appointment of - civil procedure code (act x of 1882). section 503--discretion--maintenance. - .....man. on the 10th of august 1883 the defendant got her name registered as sole proprietor of the rajah's estates. a consent petition is said to have been filed under a mukhtearnamah executed by the plaintiff, and this petition admits the exclusive title of the defendant. again, on the 27th november 1884, the defendant took out a certificate under act xxvii of 1860, and the plaintiff is said to have put in a consent petition under a vakalutnamah. ah these documents are alleged to be forgeries, but there is evidence before us that they were signed by her. we are not going to express, any opinion as to which version is true ; but we shall 1133 certainly not assume that they are forgeries. they at all events show that the defendant has openly from the very first asserted her exclusive.....
Judgment:

1. This is an appeal from an order of the Judge of the Assam valley Districts appointing a receiver of a large property which is the subject of a pending suit. The plaintiff in this suit; is a widow of the Rajah of Bijni, who died on the 9th of March 1883, and she claims the entire estate of the Rajah on the grounds that the defendant, who claims to be the elder widow, was not married to the Rajah, and that, even if she was married, she has forfeited her rights by unchastity both before and after the Rajah's death. She further, in the alternative, claims a moiety of the estate as co-heiress with the defendant, or, should the defendant's exclusive title be established, that a suitable sum for her maintenance should be fixed and made a charge on the property. The appointment of a receiver is asked for on the ground that the defendant has grossly mismanaged the property, and had wasted, and would continue to waste, large sums of money. The defendant contends that she is, and has been since the Rajah's death, in exclusive possession of all his property under a title admitted on more than one occasion by the plaintiff herself; that she was iegally married to the Rajah, and as elder widow is his sole heiress, the estate being an impartible raj to which the ordinary rules of the Hindu law of succession are inapplicable. It is further generally contended that the claim is not made bona fide, and that it has no substantial foundation.

2. Now we must regard the defendant as in exclusive possession of the property claimed. She is the sole registered proprietor; and it is clear that ever since the Rajah's death, which occurred more than four years prior to the institution of the suit she has put for ward the title which she now asserts. It is admitted in the plaint that the defendant was allowed to assume the entire management, though the admission is qualified by the assertion that the management was understood to be on the plaintiff's behalf. With this and with the allegations of fraud and immorality we shall deal hereafter; it is enough now to say that on the facts before us we must consider that possession followed the management, and if the possession has been disturbed, the disturbance has been by the plaintiff.

3. Both the Deputy Commissioner and the Judge seem to think that it is sufficient to justify the appointment of a receiver if the allegations of the plaintiff show a sufficient cause of action, and if the management of the estate has been and is such as to render the appointment expedient. Section 503 of the Civil Procedure Code certainly gives a wide discretion to the Court. It empowers the Court to appoint a receiver whenever it appears to be necessary for the realization, preservation, or better custody or management of any property the subject of a suit. This power is not however greater than that exercised by the Courts in England ; and it must, we think, be exercised on the same principle, that is to say, with a sound discretion on a view of the whole circumstances of the case, not merely the circumstances which might make the appointment expedient for the protection of the property, but all the circumstances connected with the right which is asserted and has to be established. If a right was asserted to property in the possession of the defendant claiming to hold under a legal title, the Courts did not interfere by appointing a receiver unless a very strong case was made out. The principles to which we refer are stated in Kerr on Receivers 2nd Ed., p, 3 by Lord Cranworth in Owen v. Homan 4 H.L.C. 997 (1032), and in Clayton v. The Attorney-General Cooper's Cases in Chancery vol. I p. 97. We see no ground for the contention that those principles are not applicable in this country. They were adopted to prevent a wrong to the defendant, which might equally be done here if they were not followed. It was indeed conceded that the plaintiff must at least show that her claim is honest and well founded, and if she must show that much, it is a mere question of degree as to how far she must make out her case.

4. Nor is there anything in Mr. Bose's argument that the principles referred to have been relaxed since the passing of the Judicature Act of 1873. It is only necessary to refer to the judement of Brett, L.J., in North London Railway Co. v. Great Northern Railway Co. L.R. 11 Q.B.D. 30. and the dicta of learned Judges in other cases therein referred to. Those were cases of injunctions; but the words 'just or convenient,' which limited the power of the Court, applied also to receivers.

5. It is necessary, therefore, to consider the circumstances under which the claim is made, the evidence by which it is supported for the purpose of this application, and the conduct of the parties. Our observations are of course based on the limited materials before us, and can have no effect on the ultimate decision. The plaintiff has filed her own affidavit and . that of two other persons; the defendant has filed her affidavit and that of seven other persons. All the material allegations of the plaintiff are contradicted in one or other of the defendant's affidavits. Now the plaintiff's case contains grave charges against the defendant of immorality and of fraud. So far as she denies the dafendant's title to any portion of the property her case shortly put is this, that the defendant was the mistress and not the wife of the Rajah ; that she was enceinte at the time of her alleged marriage ; that in either character she was so unfaithful to him that the Rajah, who was extremely fond of her, was driven to suicide ; that she continued to misconduct herself after the Rajah's death till her conduct became a scandal; and that, while leading the plaintiff to believe that she was managing for her, she set up a title of her own and supported it by forgery and personation.

6. Khagesseri is the only person who speaks to any fact denoting the unchastely of the defendant; and she gives neither time nor place. Putting aside the deniils of what she says, it is extremely difficult to reconcile the conduct of the plaintiff with the truth of any one of her allegations. The defendant's affidavits show that a marriage ceremony was performed according to the custom of the family, and, whatever the decision maybe as to the validity of the marriage, there seems hardly room for doubt that the defendant was recognized as the Rash's wife and widow. The plaintiff was 19 years old when the Rajah died ; and for some eight years previous to that she and the defendant had lived with him. Theplaintiff does not say when she became aware of the defendant's position as mistress and of her immoral character; but the position must have been well-known, if what Khagesseri says is true, that the Rajah wanted to marry the defendant, but was dissuaded by his relatives, friends an! priests. Was the plaintiff ignorant of this during her eight years of married life, or would she have been allowed to remain in ignorance after the Rijah's death Again, the suicide of the Rajah in consequence of the defendant's infidelity, if that was really supposed to be the cause, must have created a great sensation in the fimily; and it would hardly have added to the pooularity or strengthened the position of a woman who was not his wife. Yet we find the plaintiff an admitted wife, continuing to live on friendly terms with this woman for about three years, and allowing her to manage the whole estate as if she occupied a position at least equal to her own. It is said this management was purely permissive; but it was a management, which did not find favour either with the ryots or the authorities. According to Puma Chunder Bandopadhya, Jibon Ram Phookun, her agent in the man- agemenfc and her alleged paramour, was so unpopular and his intercourse with the defendant so scandalous and notorious that even the ryots com-bined to remonstrate and ask for his dismissal. Failing to secure this, it is said they set up one Chunder Narain as a claimant to the estate. In the struggle for possession which then ensued the whole estate was thrown into disorder, and crimes of every description, we are told, were commited, yet the plaintiff remains quiet; she never thinks of withdrawing her permission. No one ever thought of going to her for redress, andno one ever then thought of setting up her title. The district authorities also were very anxious to get rid of Jibon Ram Phookun, but they never asked the plaintiff to interfere. Like the ryots, they appealed to the defendant, and they appealed in vain. In short, up to the 24th August 1886, when the case under Section 145 of the Criminal Procedure Code was decided by the Deputy Commissioner, the plaintiff's name (except as far as it appears in that case) never seems to have been mentioned in connection with this property. On the 27th August 1886 the plaintiff says she left the defendant owing to her ill-treatment aud scandalous behaviour. Her eyes then appear to have been opened ; and the trouble with Chunder Narain having been overcome, she set up a claim, which gave rise to fresh trouble and kept alive the contest with the disaffected tenants. We should add that in the case under Section 145 the two Eanees were described to be of the first party, and Chunder Narain of the second, and the case was decided in favour of the Eanees. The defendant does not seem to have objected to the inclusion of the plaintiff's name until after the case had been decided, and until after the plaintiff had set up an adverse title; but she distinctly alleged in her written statement that she alone was entitled to the property, and it does not appear that the plaintiff took any part in the conduct of the case.

7. Such was the plaintiff's conduct. We will now turn to the defendant's. Within six days of the Rajah's death she produced for registration an anumatipatra said to have been executed by the Rajah ten days before be died. By this document he recognizes the defendant as his wife, and gives her power to adopt, postponing the plaintiff's power of adoption until after the death of the defendant.

8. The plaintiff is said to have been present when this document was presented for registration, and to have signed her name as a consenting party. The registration was before the Registrar of Calcutta, who went to Rajah's house, where the plaintiff and defendant were then residing. Under that Act the Registrar had to satisfy himself that the Rajah had executed the deed ; he certifies that he did so ; and it was registered. We allude to this fact merely as showing that it was not a mere formal registration. Of this deed the plaintiff makes no mention ; but Chunder Nath Chowdhry swears in his affidavit that she signed it in his presence, and the execution by the Rajah is also sworn to by another man. On the 10th of August 1883 the defendant got her name registered as sole proprietor of the Rajah's estates. A consent petition is said to have been filed under a mukhtearnamah executed by the plaintiff, and this petition admits the exclusive title of the defendant. Again, on the 27th November 1884, the defendant took out a certificate under Act XXVII of 1860, and the plaintiff is said to have put in a consent petition under a vakalutnamah. AH these documents are alleged to be forgeries, but there is evidence before us that they were signed by her. We are not going to express, any opinion as to which version is true ; but we shall 1133 certainly not assume that they are forgeries. They at all events show that the defendant has openly from the very first asserted her exclusive title to the property, and that she was the recognized owner is said in the plaint (paragrauh 8c) that ' the defendant proclaimed in the zemindaries that the plaintiff was willing that she should be looked upon as the sole heiress of the Rajah.' There is no proof whatever of the 'looking-upon' part of the allegation, and the defendant never seems to have pretended that she was collecting rent on account of any one but herself.

9. It is argued that, even admitting the defendant to be the widow of the Rajah, she is only entitled to joint possession with the plaintiff, or to a moiety of the estate ; that it is for the defendant to prove the family custom which is alleged to exist; and that the title of the plaintiff as an admitted widow of the Rajah is strong enough in itself to justify the appointment of a receiver. As to this, we shall merely say that the defendant's affidavits show grounds for believing that such a custom exists, and the affidavits for the plaintiff disclose no single instance in which the property has devolved on more than one heir. Besides this, the circumstances to which we have already alluded support the defendant's contention. The claim for maintenance furnishes no ground for the appointment of a receiver, and it is not shown that suitable maintenance has ever been refused. The plaintiff does not rely on her reversionary title, and even if she did, no case of waste sufficient to justify the appointment has been made.

10. We think, therefore, that, apart altogether from the way in which this property has been and is being managed, no case to justify the appointment of a receiver has been made good. In support of the charge of unchastity there is no single piece of credible evidence, and no one ever seems to have questioned the defendant's position as widow of the Rajah until this claim was brought forward under circumstances not altogether free from suspicion. We should be sorry on the materials before us to lend any colour to the accusations of unchastity and fraud by taking the property out of the defendant's possession.

11. It is necessary to say a few words on the other part of the case, viz., the way in which the property has been managed. Both the Deputy Commissioner and the Judge say that Jibon Ram Phukoon was a very inexperienced parson, and quite incompetent to have charge of such a large property, and they attribute to his mismanagement the disorder and crimes which have prevailed in the estate for some years past. We are not going to say a word in support of Jibon Ram Phukoon's capabilities ; he may be incompetent, and it may be very desirable to get a stronger and more experienced man ; but there is nothing on the record to justify the inference that it was owing to his unpopularity or mismanagement that Chunder Narain came or was put forward as a claimant, though it may well be that he was not strong enough to put down that claim, and that his unpopularity may have added to the number of ryots who took Chunder Narain's side. It is easy to conceive what follows when one person tries to oust another as Chunder Narain is held to have done. The ryots were got over and took different sides; the rents were not collected to the extent they ought to be ; and there is a constant struggle accompanied possibly with acts of yiolence and dimes such as those referred to by the Judge. But it was hardly reasonable to bold the person who is trying to maintain possession answerable for all this. It is impossible to say that the disorder would have continued, or that the rents, would not hare been collected after Chunder Narain's claim had been disposed of if the plaintiff had not then come forward as a claimant and endeavoured to get possession. We consider that she is to a great extent responsible for the disorder of which she complains, and she is not, we think, in a position now to ask the Court to appoint a receiver while she is prosecuting her laim in the civil suit.

12. We do not think it necessary to consider in detail the charges of mismanagement which are set out in the affidavit of Poornoo Chunder Bundopadhya. It is clear that the defendant has not been able to collect a large portion of the rent and that she has expended large sums of money. The expenditure certainly appears to have been unnecessarily great; but this, and the inability to collect the rent, is largely due to the adverse claim set up first by Chunder Narain, and afterwards by the plaintiff.

13. We think the order for a receiver ought not to have been made, and we set it aside and decree this appeal. The defendant is entitled to costs.


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