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Tilak Raj Vs. Dinesh Kumar and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. Petn. No. 83 of 1980
Judge
Reported inAIR1982HP62
ActsHindu Law; ;Code of Civil Procedure (CPC) , 1908 - Order 40, Rule 1
AppellantTilak Raj
RespondentDinesh Kumar and ors.
Appellant Advocate Manohar Lal Sharma, Adv.
Respondent Advocate Inder Singh, Adv.
DispositionPetition allowed
Cases ReferredJadu Prasanna Bhattacharjee v. Government of Union Territory of Tripura Agartala
Excerpt:
- .....it was contended on behalf of the respondents aforesaid that tilak raj petitioner is running the joint family business as the 'karta' of that business. the criminal revision petition was decided by t. u. mehta, the then chief justice on november 13, 1979. the operative part of the judgment reads as under :'considering the fact that the respondent tilak raj was acting as thekarta of the business conducted in this shop, and is conversant with the whole business which is conducted uptill now, it would be in the interest of the parties that he should be appointed as a receiver till proper orders in the matter are made by a civil court. it is, therefore, ordered that under the supervision of the sub divisional magistrate and in presence of both the parties a detailed inventory of the.....
Judgment:
ORDER

H.S. Thakur, J.

1. In this revision petition, Shri Tilka Raj petitioner has assailed the order of the learned District Judge, Mandi, Kulu and Lahaul Spiti districts, at Mandi, dated 23rd of April, 1980, who upheld the order of the learned Senior Sub Judge, Mandi, dated 27th November, 1979, appointing Shri Amar Chand Sharma as receiver.

2. The facts and circumstances as they emerge from the record may be stated.

3. The dispute between the parties relates to a shop situated in Chohatta Bazar, Mandi. The petitioner filed an application under Section 145 Cr. P. C. on 24th April, 1978, alleging that the respondents overlooked the disputed shop in his absence on 1st April, 1978 and were threatening him that in case he entered the shop he would be killed. The learned Sub Divisional Magistrate concerned after passing the preliminary order under Section 145 Cr. P. C. recorded the evidence of the parties and came to the conclusion that the actual possession of the shop was with the petitioner Tilak Raj and passed the order accordingly. The respondents, Dinesh Kumar and Devinder Kumar, preferred a revision petition against the order of the Sub Divisional Magistrate in this Court and the same was registered as Criminal Revision Petition No. 98 of 1979. It was contended on behalf of the respondents aforesaid that Tilak Raj petitioner is running the joint family business as the 'Karta' of that business. The criminal revision petition was decided by T. U. Mehta, the then Chief Justice on November 13, 1979. The operative part of the judgment reads as under :

'Considering the fact that the respondent Tilak Raj was acting as theKarta of the business conducted in this shop, and is conversant with the whole business which is conducted uptill now, it would be in the interest of the parties that he should be appointed as a receiver till proper orders in the matter are made by a Civil Court.

It is, therefore, ordered that under the supervision of the Sub Divisional Magistrate and in presence of both the parties a detailed inventory of the stock-in-trade the account books and other registers as well as the furniture and other articles belonging to the business shall be made and thereafter the day-to-day running of the business shall be entrusted by the Sub Divisional Magistrate to the respondent Tilak Raj,

The respondent Tilak Raj shall keep a proper and accurate account of the business conducted by him and shall submit all the details of that account every month to the Sub Divisional Magistrate. The present petitioners shall be entitled to look to the details of the account thus submitted by the respondent Tilak Raj to the Sub Divisional Magistrate and to take proper contentions in that regard.

This order shall remain in force til! the Civil Court in a suit which may be filed by the parties makes a similar or any other suitable order. Till the Civil Court makes proper orders, both the parties shall be entitled to approach the Sub Divisional Magistrate and to obtain suitable adjustments as regards the powers of the receiver and the right of the present petitioners to check the accounts.'

4. The respondents filed a suit in the Court of the Senior Sub Judge for the partition and rendition of accounts against the present petitioner and others. The present respondents also filed an application for the appointment of a receiver. The learned Senior Sub Judge vide an order dated 27th November, 1979 allowed the application and appointed Shri Amar Chand Sharma, Municipal Commissioner, Purani Mandi as receiver to take the possession of the documents and the joint business of the parties and to realise the outstanding debts of the business, supervise the transaction in the course of completion to discharge the immediate liabilities out of the assets of the business and to do such other acts and to execute suchother deeds as may be necessary for the ultimate partition of the business between the parties. The receiver was to get the remuneration in the sum of Rs. 200/- p. m. till further orders. The petitioner aggrieved by the order of the learned trial Court, preferred an appeal in the court of the learned District Judge, The learned District Judge, however, dismissed the appeal by an order dated 23rd April, 1980. The petitioner has ultimately preferred this revision petition in this Court.

5. It is contended by Shri M. L. Sharma, the learned counsel for the petitioner, that admittedly the petitioner had been running the business in the shop and was in possession of the same. It is further contended that even if it is assumed that the petitioner is not the exclusive proprietor in the business but had been running the business as a 'Karta' of the undivided Hindu family, he had every right to be appointed as a receiver and to run the business. It is vehemently contended that under the facts and circumstances of the case, it is in the interest of all the members that he is continued to run the business as the appointment of a stranger as a receiver was wholly unjustified. It is also contended that the petitioner should have been appointed as a receiver by imposing certain conditions so as to safeguard the interests of the respondents if they ultimately succeeded in the suit. It is pointed out that the Courts below have acted without jurisdiction in appointing a stranger as a receiver. He has invited my attention to the decision in Narayan Chandra Sahu v. Abhimanyu Sahu (AIR 1980 Ori 118). In this judgment, it was observed that it is not justified that a third party be appointed as a receiver during the pendency of the partition suit between the parties as that could cause unnecessary inconvenience, worry and embarrassment. The learned counsel has also referred to the decision in Ved Parkash v. Tara Chand (AIR 1954 Punj 122).

In this case also, a suit for partition of the joint Hindu property was filed and an application for appointment of a receiver was also filed. The learned Judge while dealing with this aspect of the matter observed as under:

'The sole question which had to be determined by the learned Judge waswhether there was sufficient ground for the appointment of a receiver. In Mulla's Civil P. C. at p. 1170 it is stated that the Court will not, as a general rule, appoint a receiver in suits between members of a joint family, especially where the family property consists of immovable property, but a receiver may be appointed in a suit for partition where there is a prima facie case of misappropriation by the manager of the family. This is the rule which governs generally appointment of receivers in disputes between the members of joint Hindu families,'

The learned counsel has also referred to another decision in Bhubaneshwar Prasad Narain Sinha v. Rajeshwar Prasad Narain Sinha (AIR 1948 Pat 195). This is a decision of a Division Bench of Patna High Court. In this judgment, it has been observed that generally speaking in a partition suit between the members of a joint family, the Court will not appoint a receiver except by consent and especially where the family property consists of land. In such a case, special circumstances have got to be proved in order to obtain an order for the appointment of a receiver, for example, where the Court is satisfied that the property in possession of the opposite party was in danger of being wasted. It was also observed that where one member who is in possession of the entire joint family property on his own behalf and on behalf of the other members, in his capacity as managing member, resists the effort of another member to take forcible possession of some of the property, his conduct does not amount to an ouster of another member of the family and cannot be a ground for the appointment of a receiver in a suit for partition instituted by the other members. On the basis of the aforesaid decisions, it is contended by the learned counsel that even if relations between the members of the joint Hindu family may not be cordial and be strained, it cannot be the ground to appoint a stranger as a receiver. It is pointed out that the receiver appointed by the trial Court is to get a remuneration of Rs. 200/- p. m. to run the business. The receiver so appointed is not likely to take interest in running the business so as to give a reasonable profit to the parties. It is also pointed out that there is no evidence on record that the receiverso appointed has any experience of running such a business. The learned counsel has vehemently urged that the respondents are interested in delaying that matter as they are running their separate business on the projection of the shop in dispute, which is in fact a part of the shop and is exactly on the front side of the shop and for all intents and purposes is a part of the shop. According to the petitioner they are making good profit out of this business whereas the petitioner is on the verge of starvation. The learned counsel has drawn my attention to an affidavit filed by the petitioner in this Court. In his affidavit, the petitioner has stated that the shop in question is locked from 3rd Mar. 1978 and since then no business whatsoever has been transacted therein till now. It is also stated that he was thrown out of business since 3rd Mar. 1978, when the respondents Nos. 1 and 2 had overlooked the shop. According to the petitioner, Dinesh Kumar and Devin-der Kumar respondents started their regular business from 24th Apr. 1978 on the projection (pattri) of the same and are till to-day regularly carrying on their business. It is further pointed out that the respondents Nos. 1 and 2 are making more than Rs. 1000/- per day as the gross sale on the goodwill of the shop in dispute. It has been also stated that he is to liquidate certain debts. In the counter affidavit filed by Dinesh Kumar respondent, it has been stated that he and his brother in order to save themselves from starvation are doing business on a projection which is owned by the State of Himachal Pradesh and that the said projection does not belong to that shop. It is, however, asserted that doing of business will not cause any material difference to the shop in dispute.

6. It is contended by Shri Inder Singh, the learned counsel for the respondents, that in the exercise of the re-visional powers, this Court would not lightly reverse the decision of the Courts below unless it is proved that the Courts below have acted without jurisdiction or have exercised jurisdiction illegally or with material irregularity. It is also contended that the order, if allowed to stand, would not occasion a failure of justice or cause ir-reparable injury to the opposite party. It is urged by the learned counsel that the petitioner has not made any allegations against the receiver appointed by the trial Court. He has also drawn my attention to the decision in Sheona-rain Jaiswal v. Shree Kripa Shankar Jaiswal (AIR 1972 Pat 75). On the basis of this judgment, it is asserted that since there are strained feelings between the parties, it is not proper to appoint the petitioner as a receiver. A perusal of this judgment, however, shows that the Court had appointed a receiver but the opposite party did not allow the receiver to take possession of the properties. Such a conduct of the party concerned was considered most apprehensible and a serious view of the matter was taken. At the same time, it was observed by the learned Judges that it is true that it would have been desirable that the party should have been appointed receiver. It was under these circumstances that no one from amongst the parties was appointed as a receiver. The learned counsel has also drawn my attention to another decision in Jadu Prasanna Bhattacharjee v. Government of Union Territory of Tripura Agartala (AIR 1968 Tripura 52). This decision related to the management of a Co-operative Society. There was dispute between the members of the Board of Directors regarding the management of the affairs of the Society, The Court in larger interest of the members of the Society and to prevent further loss to it decided to appoint a receiver to take possession of the property of the Society and to manage the same till the disposal of the writ petition.

7. I have minutely considered the contentions of the learned counsel for the parties and have also heard them at length. It may be pointed out that keeping in view the fact that the parties belong to the same family and were closely related to each other, the possibility of some sort of mutual settlement between them was probed. At the suggestion of the learned counsel for the parties, the parties were summoned in the Court. Shri Dinesh Kumar respondent who personally appeared in the Court on Sept. 9, 1981, stated that in case the petitioner is to be appointed as a receiver, the respondent be alsoallowed to propose the name of a co-receiver to work with him in running the business. He proposed the name of Shri Hem Singh, a retired Inspector of Mines to be appointed as a co-receiver with the petitioner. He, however, took time to obtain his consent and also to consult other respondents and the members of his family. The time for the purpose was allowed to him. But on 16th September, 1981, he informed the Court that Shri Hem Singh was not prepared to act as a co-receiver and that there was also no other person prepared to act as such on their behalf. On the contrary, it was stated by the petitioner that he had no objection to carry on the business along with any co-receiver nominated by the respondents except for the respondents themselves. Under the circumstances, the possibility of a mutual settlement was ruled out.

8. I am of the view that as a general rule, it is desirable that in a suit for partition and rendition of accounts, a 'Karta' of joint Hindu Family be ordinarily allowed to run the affairs of a Joint Hindu family property. However, if there are sufficient circumstances to show that he is likely to waste the joint property or has committed any act of mis-appropriation or any other act detrimental to the common interest of the members of the joint Hindu family or is otherwise unfit to act as such, any other person otherwise fit, may be allowed to run the affairs of the joint Hindu family business. It is, however, in exceptional cases that a stranger may be appointed as a receiver. The main grievance of the respondents for appointing the petitioner as a receiver is that the relations between the parties are highly strained and under such strained relations he may act in a manner that may cause loss or be prejudicial to their interests. Under such a situation, the interests of the other members have also to be safeguarded. It may be pointed out that the case of the petitioner is that he is the sole proprietor of the business and that the business is not joint with the respondents. He has also placed on record some documents which show that he is entered as a sole tenant of the shop in which the business is being run. At any rate, I do not deem it proper at this stage to de-cide that aspect of the matter. However, even if the business is to be treated as a joint business of the parties, it is to be seen whether under the admitted position of the respondents, it is proper and desirable to uphold the appointment of a stranger as a receiver or the petitioner, who is admitted to be a 'karta' of the joint Hindu family business, be appointed as a receiver instead. Ordinarily, as submitted by the learned counsel for the respondents, this Court would not in the exercise of its revisional power reverse the decision of the Courts below unless the same is not to occasion a failure of justice. Considering the facts and circumstances of the case and the respective claims of the parties, I am of the view that it is in the larger interest of both the parties that the petitioner is appointed as a receiver instead of a stranger and, in order to safeguard the interests of the respondents, his appointment is made subject to certain terms and conditions. The operative portion of the order passed by T. U. Mehta, C. J., has been reproduced earlier above. That being a decision in the proceedings under Section 145 Cr. P. C. and subject to the decision of the Civil Court, is undoubtedly not binding in civil proceedings. All the same, it can have some persuasive value especially when the discretionary powers are to be exercised. As such, I deem if proper that the petitioner be appointed as a receiver on somewhat similar terms and conditions as indicated in the said order. Accordingly, I set aside the order passed by the learned District Judge, affirming the order of the trial Court and while allowing the revision petition make the following order.

9. The petitioner Tilak Raj is appointed as a receiver to run the business in the shop in dispute. It is further ordered that under the supervision of the Senior Sub Judge, Mandi or any officer of his Court appointed by him, and in the presence of both the parties, detailed inventory of the stock-in-trade, the account books and other registers as well as the furniture and other articles belonging to the business, shall be made, and thereafter day-to-day running of the business shall be entrusted to the aforesaid receiver. Shri Tilak Raj, receiver shall keep a proper and accurate account of the business conducted by him and shall submit all thedetail's of that account every month to the Senior Sub Judge, Mandi. The respondents shall be entitled to look to the details of the account thus submitted by Shri Tilak Raj, receiver to the Senior Sub Judge. Both the parties shall also be entitled to approach the Senior Sub Judge and to obtain suitable adjustments as regards the powers of the receiver and the right of the respondents to check the accounts.

10. It is made clear that my above observations shall have no bearing whatsoever on the merits of the suit and are only confined to the decision of this revision petition.

11. The revision petition is accordingly allowed, but with no order as to costs,


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