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In Re: K.C. Bannerjee, Official Receiver - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1928Cal402
AppellantIn Re: K.C. Bannerjee, Official Receiver
Cases ReferredKamini Debt v. Promotho Nath Mukerjee
Excerpt:
- .....of this court against an order of the president of the calcutta improvement tribunal by which the learned president refused to make over certain government promissory notes held in his court to the petitioner. in the circumstances of the 'case there is no opposite party and we had to hear this matter ex parte. we have given our earnest consideration to the facts of this case and to the observation made by the learned president in his judgment. the facts are that a portion of the premises no. 28, giri babu's lane, in calcutta belonging to the debutter estate of certain idols was acquired under the land acquisition act and the compensation thereof was deposited with the calcutta improvement tribunal under section 31 of the act. thereafter some of the she baits of the said idols instituted.....
Judgment:

Suhrawardy, J.

1. This application in revision is by the Official Receiver of this Court against an order of the President of the Calcutta Improvement Tribunal by which the learned President refused to make over certain Government promissory notes held in his Court to the petitioner. In the circumstances of the 'case there is no opposite party and we had to hear this matter ex parte. We have given our earnest consideration to the facts of this case and to the observation made by the learned President in his judgment. The facts are that a portion of the premises No. 28, Giri Babu's Lane, in Calcutta belonging to the debutter estate of certain idols was acquired under the Land Acquisition Act and the compensation thereof was deposited with the Calcutta Improvement Tribunal under Section 31 of the Act. Thereafter some of the she baits of the said idols instituted a suit in the original side of this Court against certain persons for a certain declaration which will be more particularly mentioned later. In that suit an application was made by, the plaintiffs (for the appointment of a receiver and the Court appointed the Official Receiver as Receiver in the suit with all the powers with which a receiver can be nested under Order 40, Rule 1, Civil P.C. The receiver thereafter applied to the President of the Tribunal that the Government securities representing the compensation money awarded in respect of a portion of the debutter property acquired against be made over to him. The learned President on certain considerations has refused to make over the securities to the petitioner. Before proceeding further it is necessary to observe that the order appointing the petitioner as receiver ran in the following words:

And it is further ordered that the said receiver be also at liberty to withdraw the securities representing the compensation money in respect of premises No. 28, Giri Babu's Lane, and deposited with the Tribunal, of the Improvement Trust, Calcutta, and the interest accrued due and to accrue due thereon.

2. Since the learned President has declined to part with the securities in spite of the order of this Court, the matter has assumed an importance which demands very careful consideration by us. The main grounds on which the learned President has refused to make over the securities to the petitioner may be summed up thus: (1) The receiver is only a trustee for the parties to the suit and no party to the suit is a person competent to alienate the land within the mean no of Section 31, Land Acquisition Act of 1894 or a person entitled to act under Section 3 prov. (iv) of the Act; (2) That the suit in the High Court is a suit between parties claiming to be she hair to which the idols are not parties ether m name or in substance; and, therefore the properties which belong to idols' should not be made over to the receiver appointed in such a suit; (3) The order of the High Court appointing the petitioner to be the receiver cannot deprive the Improvement Tribunal of the statutory right which it has under the Act of retaining the money, under Order 40 Rule 1(2) and the order of appointment of the receiver cannot operate so as to remove from its possession or custody the property as no party to the suit has a present right so to remove.

3. As regards the first ground it is clear on the authorities that the view expressed by the learned President is not tenable m the circumstances of the present case As has been held in the case of Harihar Mukherjee v. Harendra Nath Mukherjee [1910] 37 Cal. 754 a receiver appointed by the Court is not ordinarily the representative or agent of either party in the administration of the trust. But his appointment is for the benefit of all parties and he holds the properties for the benefit of those ultimately found to be the rightful owners; and reliance has been placed on the decision in Jagat Tarini Dassi v. Naba Gopal Chaka [1907] 34 Cal. 305 where it is laid down that the receiver is the representative of the Court and may be deemed to be right arm of the Court in exercising jurisdiction invoked in such cases for administering the property because the Court can only administer through a receiver. The learned Judges further observed that no doubt in some cases the expression is used that the receiver may be considered as a. representative of the parties to the suit but this only in the sense that as against an adverse claimant his title does not stand higher than that of the parties to the litigation; and upon this notion of the character of the receiver is founded the provision in Order 40, Rule 1(2), Civil P.C. In Harihar Mukherjee's case [1910] 34 Cal. 754 the question was whether the receiver appointed by the Court could take possession of the property without a succession certificate It was held that a receiver, when he seeks to take possession of the subject-matter of the litigation under an order the Court is not a person who claims to be entitled to the effects of a deceased person under the Succession Certificate Act, 1889, and he is in no sense a representative of the deceased person but, is merely entrusted by the Court with certain power over the estate for temporary purposes. The decision in Radha Binode Mandal v. Gopal Jiu Thakur rests on the fact that there the suit was for declaration of plaintiffs' title as she baits in which the idol was not interested.

4. This brings us to a consideration of the nature of the suit in the High Court which is connected with the second ground on which the learned President's judgment is founded. The suit in the High Court as appears from a perusal of the plaint is no doubt for a declaration that the plaintiffs and some of the defendants are she baits of the idol. But there are also two prayers in the plaint which are relevant for our present purposes. The prayer (o) is to this effect:

If necessary the said debutter estate be administered by and under the direction of this honorable Court,

and, (p)

if necessary a scheme be framed for the proper performance of the worship of the Thakur.

5. It is conceivable that in view of these prayers this Court appointed the receiver and authorized him to take possession of all the debutter properties including the promissory notes in the hands of the improvement tribunal. In the suit the plaintiffs further prayed that certain unauthorized alienations of the idols' properties might be set aside. Considering the entire scope of the suit it is difficult to hold that the idols were not interested in the suit. As has been observed by their Lordships of the Judicial Committee in Jagadindra Nath Roy v. Hemanta Kumari Devi [1905] 32 Cal. 139, that although an idol may be regarded as a juridical person capable of holding properties, it is only true in an ideal sense; but the fact remains that the possession and management of the dedicated properties belong to shebaits; in other 'words though the idol is the owner of a property but being incompetent to manage it, the right of1 management and possession is vested lathe shebaits. The suit is for the benefit of the idols though a portion of it relates-to matters personal to the, plaintiffs. We-are told that all the other properties belonging to the idols have been taken possession of by the receiver. There appears to be no reason why the promissory notes-which are in the possession of the Tribunal should not be taken possession of by the receiver as a part of the debutter estate. As has been held in Mrinalini Dasi v. Abinash Chander Dutt [1910] 11 C.L.J. 533 the, compensation money representing the estate of an incompetent person partakes] of the nature of real property and does not lose its character as such because it has been transformed in shape. The money in the hands of the Tribunal therefore, is a portion of the debutter property which would have come into the possession of the receiver under the direction of the Court if it were not acquired under the Land Acquisition Act : see also Kamini Debt v. Promotho Nath Mukerjee [1912] 39 Cal. 39.

6. As to the third ground under Section 32, Land Acquisition Act, the acquisition Court is not absolutely vested with the compensation money. It is apparent that possession of the receiver is the pos= session of the Court and the money if made over to the receiver will remain in custodia legis. The law does not vest the acquisition Court with such power as to retain the money in its possession in, spite of the direction of a competent civil Court. Taking all these facts into com, sideration I am of opinion that the order of the learned President of the Improvement Trust should be set aside and that he be requested to comply with the order of this Court by making over the money to the petitioner. This rule is made absolute.

Graham, J.

7. I agree and desire to add only a few words. The rule was issued it the instance of the Official Receiver to how cause why an order of the President of the Calcutta Improvement Trust Tribunal rejecting the application of the Official Receiver to withdraw certain securities deposited with the Tribunal tinder Section 31 of the Act should not be set aside and an order made directing the delivery of the said securities to the petitioner.

8. The learned President of the Improvement Trust Tribunal, in refusing the application, proceeded mainly upon the ground that he was precluded by the terms of the statute (Land Acquisition Act 1 of 1894) from acceding to the application, and he has referred in support of the view taken by him to certain provisions of the Act. He has held that the receiver stands in the shoes of the parties and represents them, and that that being so he cannot have any greater power than is possessed by the party whom he represents. The learned President has perhaps not considered sufficiently the fact that a receiver by his appointment does not become the representative of the party, but is an officer and representative f the Court which appoints him. Indeed he is frequently spoken of as the hand of Court and is merely in possession of the property on behalf of the party who may be ultimately declared to entitled thereto. One or other of the parties must eventually be declared to be entitled to the securities in question, or at all events to retain possession of them. A receiver appointed by the Court is merely a temporary custodian of the property on behalf of the Court and holds them for the benefit of the party successful in the litigation. He cannot deal with the properties in any way without the consent and approval of the Court, so that no apprehension need arise that the interest of either of the contesting parties is likely to suffer in any way by reason of his temporarily retaining possession of the properties. For these reasons and also in view of the order made on the original side of this Court by Mr. Justice Pearson I agree with my learned brother that the order which has been made by the President of the Improvement Trust Tribunal cannot be sustained and that this rule should be made absolute.


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