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, Civil Procedure Code in a suit for construction of a Will for establishment of title to shebaitship of a debutter estate and for incidental reliefs.
2. The history of this endowment is set out in the judgment of this Court in Manohar Mookerjee v. Raja Peary Mohan Mookerjee 54 Ind. Cas. 6 : 24 C.W.N. 478 : 30 C.L.J. which was confirmed on appeal by the Judicial Committee Peary Mohan Mukerji v. Monohar Mukerji 60 Ind. Cas. 76 : 48 I.A. 258 : 26 C.W.N. 133 : 34 C.L.J. 86 : 41 M.L.J. 68 : 14 L.W. 104 : 23 Bom. L.R. 913 : (1921) M.W.N. 554 : 19 A.L.J. 773 : 2 P.L.T. 725 : 300 M.L.T. 24 : 48 C. 1019 : (1922) A.I.R. (P.C.) 235 (P.C.), 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 Mononar Mukherjee for construction of the Will, for the administration of the trust created thereby, for the removal of Raja Peary Mohon 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 Mohon 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 Mohon 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 Mohon Mukherjee. Disputes, however, broke out between Monolfar Mukherjee and the representatives-in-interest of Raja Peary Mohon 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 Mohon 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 sheabit, or, in the event of a dispute, before a 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 first 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 f 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 then 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 Mohon Mukherjee, instituted a suit in the Court of the Subordinate Judge of Hoogly 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--all of them, except one, members of the Mukherjee family of Uttarparah--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 seventeen of these forty-two 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 192 3, the Sub ordinate 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 daring the pendency of the litigation. If a Receiver is appointed, the only parson materially prejudiced thereby would be the person entitled to present possession as shebait. In this category may be includes the plaintiff as also tie 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 which 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 where in they are or their successors-in interest may he cone 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 decision opinion as to the rights of the parties. The danger of such a course was pointed out by this Court in Ram Sunder Dass v. Kamal Jha 32 C. 741. The Subordinate Judge has also referred to the decisions in Sidheswari Dabi v. Abhoyeswari Dabi 15 C. 818 : 13 Jnd. Jur. 258 : 7 Ind. Dec. (N.S.) 1128 and Chandilat Jha v. Padmanand Singh 32 C. 459 : 11 Ind. Dec. (N.S.) 307, In these cases, the Court considered the principles which should regulate tae 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 unprincipled in case of that character were clearly stated by Sir Jhon 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 tie Court. In exercising its discretion, the Court should proceed with cauton 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 5 Ind. Cas. 27 : 14 C.W.N. 252. The power collected 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 apnoint one: Presonomoyi Devi v. Beni Madhab Rai 5 A. 556 : A.W.N. (1883) 136 : 3 Ind. Dec. (N.S.) 511. The words 'just and convenient' in Order XL, Rule 1 of the Code mean that the Court should appoint a Receiver for the protection of property or the invention of injury according to legal principles and not that the Court can makes such appointment because it thinks convenient to do so. They Confer no arbitrary and non-regulated discretion of 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 Singh v. Sarada Charan Guha 12 Ind. Cas. 165 : 14 C.L.J. 525 : 16 C.W.N. 126 and Madheshwar v. Mohamaya Prasad Singh 9 Ind. Cas. 1027 : 15 C.W.N. 672 : 13 C.L.J. 487, the subject-matter of litigation s 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 (1853) 4 H.L.C. 997 at p. 1032 : 94 R.R. 516 at p. 527 : 17 Jur. 861 : 1 Eq.R. 370 : 10 B.R. 752, when he made the odwing observations:
The Receiver, must be appointed on this principle on which the Court of Chancery acts, of presenting property pealing the litigation which is to decide the right 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 parties that the Court should prevent a scramble. Such is the case when a Receiver of a 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 lawlul 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 they by its interim interference have caused mischief to the defendant for which the subsequent restoration of the property may; afford no adequate compensation. In ail cases, therefore, where the Court interferes by appointing a Receiver of property in the possession of the defendant before the title or 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 Receive 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 last incumbent. In our judgment, it would not be right for this Court to adopt this suggest on. 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 the 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 welt by the plaintiff as by the first defendant that if a Receiver is appointed, the plaintiff or the defendant should be such Receiver. Each has offered to find funds, if necessary, for the management of the endowment. Each has pointed out that inestimable benefit would accrue if he wore appointed Receiver. Each 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 & application has been made by one of the party litigants for appointment of himself as 'Receiver: Kali Kumari v. Bachan Singh 19 Ind. Cas. 873 : 17 C.W.N. 974 and Surasanna Roy v. Upendra Narayan Roy 22 Ind. Cas. 601 : 18 C.W.N. 533 : 18 C.L.J. 638. The Receiver appointed in an action should as a general rule be a person wholly disinterested in the subject-matter; In re Lloyd Allan v. Lloyd (1879) 12 Ch. D. 447 at p. 451 : 41 L.T. 171 : 28 W.R. 8. But it is competent to the Court upon the consent of the parties, and in a proper case, without such consent to a point as Received 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. D. 302 : 45 L.J. Ch. 527 : 34 L.T. 637 : 24 W.R. 450, Hyde v. Warden (1876) Ex. D. 399 : 25 W.R. 63, Fuggle v. Bland (1883) 11 Q.B.D. 711. Boyle v. Bettws (1876) 2 Ch. D. 726 : 45 L.J. Ch 748 : 34, Blakeway v. Blakeway (1824) 2 L.J. (N.S.) Ch. 75 and Cookes v. Cookes (1865) 2 De G. J. & S. 526 at p. 531 : 46 E.R. 479 : 139 R.R. 216. 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. We are of opinion that the Receiver previously appointed should be appointed Receiver in this suit. The fact that he has been able to manage the estate efficiently notwithstanding the conflicting interests of powerful litigants justifies the, expectation that he will continue to be successful in the discharge of his difficult and responsible duties as Receiver. We accordingly appoint Babu Ramtaran Chatterjee, a Vakil of this Court and one of its officers on the Appellate Side, to be the Receiver in the suit. He will continue to perform his duties under the orders of this Court. This arrangement possesses the manifest advantage that there will be no change in the management. We are convinced that a change of management or policy at this stage would be detrimental to the interest of the endowment.
9. The appellant will have costs both of this Court and of the Court below. We assess the hearing fee in this Court at tea gold mohurs.
10. We direct the Subordinate Judge to take up the suit for final disposal in accordance with law as early as practicable.