1. This is an appeal under Order XLIII, Rule 1, Clause (s) from an order rejecting an application for the appointment of a Receiver under Order XL, Rule 1, C.P.C., in a suit for construction of a Will, for establishment of title to shebaitship of a debuttar estate and for incidental reliefs.
2. The history of this endowment is set out in the judgment of this Court in Monohar Mukherjee v. Peary Mohan Mukherjee  24 C.W.N. 478, which was confirmed on appeal by the judicial Committee Peary Mohan Mukherjee v. Monohar Mukherjee A.I.R. 1922 P.C. 235. It is sufficient to state that the endowment was created by Jagomohan Mukherjee, the common ancestor of the parties to this suit, who made a testamentary disposition of his properties on the 11th September, 1840. A suit was instituted by the first defendant Monohar Mukherjee for construction of the Will, for the administration of the trust created thereby, for the removal of Raja Peary Mohan Mukherjee from the shebaitship, for the appointment of a new shebait or a Receiver, and other incidental declarations. The suit was dismissed by the trial Court on the 23rd December, 1915. That judgment was reversed by this Court on appeal on the 24th July, 1919. The effect of this judgment was to remove Raja Peary Mohan Mukherjee from the shebaitship and to place the debuttar estate in the hands of a Receiver appointed by this Court. Since then, the Receiver has continued in occupation and has discharged his duties under the direction of this Court. Raja Peary Mohan Mukherjee died on the 16th January, 1923, and the succession to the shebaitship opened out on his death. In the normal course of events, the Receiver would have been discharged on the death of Raja Peary Mohan Mukherjee. Disputes, however, broke out between Monohar Mukherjee and the representatives in interest of Raja Peary Mohan Mukherjee, and at the desire of all parties, this Court directed the Receiver to continue to hold the estate until further orders. On the 9th February, 1923, an application was made to this Court on behalf of Monohar Mukherjee to the effect that the Receiver might be directed to make over possession of the debuttar estate and all the papers in relation thereto to him as the next person entitled to hold the shebaitship under the terms of the Will of the founder. The application was opposed by a representative of Raja Peary Mohan Mukherjee who was a party to the original suit also in his own right. On that occasion, the Court made the following order:
Before possession can be taken by the nhebait, or in the event of a dispute, before u Receiver can be appointed by a competent Court to take charge of the debuttar estate, it is necessary that the Receiver appointed by this Court should continue. We accordingly authorise the Receiver to continue in occupation till the 1st day of the new Bengali year. If, in the meanwhile, the parties can agree upon a person to take possession of the estate as the new shebait and the matter is reported to us, the Receiver will be authorised to withdraw forthwith. If, on the other hand, the dispute is not ended and the Receiver is appointed by a competent Court where the suit has been instituted, the Receiver will be directed to make over possession to the new Receiver.
3. We directed the Receiver to continue in occupation till the first day of the new Bengali year because it was pointed to us by both sides that if the Receiver were to withdraw from the management at an earlier date considerable difficulties might arise in the way of institution of rent suits as the period of limitation would expire in ordinary course on the last day of the current Bengali year. Thereafter both parties awaited further developments each anxiously expectant as to what action might be taken by his opponent. At length on the 14th April, 1923, that is, just after the expiry of the date fixed by this Court Bhupendra Nath Mukherjee, the son of Raja Peary Mohan Mukherjee instituted a suit in the Court of the Subordinate Judge of Hughli for construction of the Will of the founder and for determination of a variety of questions in relation to the debuttar estate. Thirty-eight persons - till of them except one, members of the Mukherjee family of Uttraparah - were brought on the record as defendants. The list included the Receiver appointed by this Court. Four other persons were subsequently brought on the record as additional defendants. 17 of these 42 defendants entered appearance. The plaint contained a prayer for the appointment of a Receiver and five days later an application was made by the plaintiff in that behalf. The only defendant who contested the application for the appointment of a Receiver was the first defendant Monohar Mukherjee, On the 15th August 1923 the Subordinate Judge dismissed the application for the appointment of a Receiver. Five days later the present appeal was lodged in this Court by the plaintiff. The only person brought on the record as respondent in the appeal is the first defendant Monohar Mukherjee. We have now to consider whether the order of the Subordinate Judge can be supported on the merits.
4. A preliminary objection has been taken that the appeal should not be heard, until notice has been served upon all the other defendants, at any rate, upon the defendants who had entered appearance in the trial Court. We are of opinion that there is no substance in this contention. The object of the appointment of a Receiver in the present case is to secure the properties during the pendency of the litigation. If a Receiver is appointed the only person materially prejudiced thereby would be the person entitled to present possession as shebait. In this category may be included the plaintiff as also the first defendant, as they are rival claimants to the possession of the debuttar estate. There is no allegation that there is a third person amongst the defendants who is entitled to present possession or has even advanced a claim to that effect. They are necessary parties to the suit, which has been instituted for construction of the Will and for other reliefs, which may affect the endowment wherein they are or their successors-in-interest, may become interested either in the present or in the future. But there is no suggestion that any of these defendants is entitled to present possession, and consequently it is not necessary to have them on the record of this appeal.
5. We shall now proceed to consider the merits of the order under appeal. We observe that the Subordinate Judge has not only narrated the previous history of the endowment but has also expressed a decisive opinion as to the rights of the parties. The danger of such a course was pointed out by this Court in Ram Sundar Das v. Kamal Jha (1905) 32 Cal. 741. The Subordinate Judge has also referred to the decisions in Siddheswari Dabi v. Abhoyeswari Dabi (1888) 15 Cal. 818 and Chandidat Jha v. Padmanand Singh (1895) 22 Cal. 459. In these cases; the Court considered the principles which should regulate the appointment of Receivers, where the effect of the appointment is to oust a person who is in possession of the property in dispute. The principles applicable in cases of that character were clearly stated by Sir John Woodroffe in his work on Receivers. The appointment as well as the removal of a Receiver is a matter which rests in the sound discretion of the Court. In exercising its discretion, the Court should proceed with caution and be governed by a view of the whole circumstances of the case. A Receiver should not be appointed in supersession of a bona fide possessor of the property in controversy, unless there is some substantial ground for interference : Mathuria Debya v. Shibdayal Singh  14 C.W.N. 252. The power conferred by the Code of Civil Procedure to appoint a Receiver is not to be exercised as a matter of course, and it is not a reason for allowing an application for the appointment of a Receiver, that it can do no harm to appoint one : Prosonnamoyee Devi v Rent Madhab Roy  5 All. 556. The words 'just and convenient' in Order XL, Rule 1 of the Code mean that the Court should appoint a Eeoeiver for the protection of property or the prevention !of injury according to legal principles and not that the Court can make such appointment because it thinks convenient to do so. They confer no arbitrary and non-regulated discretion on the Court.
6. These are well-settled principles, but the case before us possesses special features which have been overlooked by the Subordinate Judge. Here, as in Khubsurat v. Saroda Charon  14 C.L.J. 526 and Madaneswar v. Mahamaya  15 C.W.N. 672 the subject-matter of litigation is not in the occupation of either the plaintiff or the contesting defendant. The property is in the custody of this Court, in the hands of the Receiver appointed by us in connection with the suit previously mentioned. Such a contingency was foreseen by Lord Cranworth in the case of Owen v. Homan  4 H.L.C. 997, when he made the following observations:
The Receiver must be appointed on the principle on which the Court of Chancery acts of preserving property pending the litigation which is to decide rights of the litigant parties. In such cases, the Court must of necessity exercise a discretion as to whether it will or will not take possession of the property by its officer. No positive unvarying rule can be laid down as to whether the Court will or will not interfere by this kind of interim protection of the property. Where, indeed, the property is as it were in medio, in the enjoyment of no one, the Court can hardly do wrong in taking possession. It is the common interest of all the parties that the Court should prevent a scramble. Such is the case when a Receiver of the property of a deceased person is appointed pending a litigation in the Ecclesiastical Court as to the right of probate or administration. No one is in the actual lawful enjoyment of property so circumstanced, and no wrong can be done to any one by taking and preserving it for the benefit of the successful litigant. But where the object of the plaintiff is to assert a right to property of which the defendant is in the enjoyment, the case is necessarily involved in further questions. The Court by taking possession at the instance of the plaintiff may be doing a wrong to the defendant, in some cases an irreparable wrong. If the plaintiff should eventually fail in establishing his right against the defendant the Court may by its interim interference have caused mischief to the defendant for which the subsequent restoration of the property may afford no adequate compensation. In all cases, therefore, where the Court interferes by appointing a Receiver of property in the possession of the defendant before the title of the plaintiff is established by decree, it exercises a discretion to be governed by all the circumstances of the case.
7. In the case before us, the property is in the hands of a Receiver appointed by this Court. The defendant urges not only that a Receiver should not be appointed by the Subordinate Judge but that the Receiver previously appointed by this Court should be discharged and the properties made over to him, because, in the opinion of this Court, he is the person entitled to the shebaitship on the death of the lass incumbent. In our judgment, it would not be right for this Court to adopt this suggestion. If we were to express an opinion that the first defendant is entitled to the shebaitship in the events which have happened, we should only prejudge she matter in controversy in the litigation before the Subordinate Judge. We are consequently of opinion that a Receiver should have been appointed in this case by the Subordinate Judge, and we proceed to make the order which should have been passed by him.
8. The view has been pressed on us as well by the plaintiff as by the first defendant that if a Receiver is appointed, the plaintiff or the defendant should be such Receiver. Bach has offered to find funds, if necessary, for the management of the endowment. Each has pointed out that inestimable benefit would accrue if he were appointed Receiver. Bach has urged that he will make no charge for management. Each has explained that he has an efficient machinery at his disposal for management of zemindaris, and that the debuttar estate would be effectively and economically managed if the estate were placed in his hands. Neither of the litigants, however, has the remotest confidence in the other and neither is prepared to see his opponent appointed as Receiver, notwithstanding the high estimate formed by each of his own capacity for management. In such circumstances, we cannot overlook the principles which have been applied when an application has been made by one of the parties litigants for appointment of himself as Receiver; Kali Kumari v. Bachun Singh  17 C.W.N. 974 and Suprasanna Roy v. Upendra Narain Roy  18 C.W.N. 533. The Receiver appointed in an action should as a general rule be a person wholly disinterested in the subject-matter. Re : Lloyd  12 Ch. Div. 447. But it is competent to the Court upon the consent of the parties, and in a proper case, without such consent, to appoint as Receiver a person who is mixed up in the subject-matter of the litigation, if it is satisfied that the appointment will be attended with benefit to the estate; Taylor v. Eckersley (1876) 2 Ch. Div. 302, Hyde v. Warden  1 Exch. Div. 309. Fuggle v. Bland  11 Q.B.D. 711, Boyle v. Bettws L.C. Co.  2 Ch. Div. 726, Blakeway v. Blakeway  2 L.J. Cch. 75 and Cookes v. Cookes . We regret that we have not been able to satisfy ourselves that benefit would accrue to the debuttar estate if either of the rival claimants were appointed receiver.
9. Their Lordships opined that the former incumbent should be appointed receiver in the suit. So, the office was given to Babu Ramtaran Chatterjee as it was thought detrimental to the endowment to change its management; and the Sub-Judge was directed to take up the suit for final disposal according to law as early as possible.