Prima facie case for appointment of receiver based on arrears of interest and improper conduct of defendant

JUDGMENT:- This appeal arises from a dispute between a brother and a sister in relation to a certain family property, which was dealt with as far back as 1951 in a partition deed between the plaintiff, as one of the sisters, and the other brothers and sisters including the defendant Yusufally as one of the brothers.

2. In the events that happened an equitable mortgage appears to have been executed soon after the execution of the aforementioned partition deed by which the property in suit came to be owned by defendant Yusufally.

3. It requires to be noticed that the equitable mortgage is evidenced by a registered document dated the 10th of June 1952, the document having been duly admitted and registered on the 25th of July 1952.

4. Although the mortgage amount which was Rs. 11,000/- in so far as the plaintiff is concerned (the other sum of Rs. 11,000/- being due to the plaintiff's sister Safiabai since deceased) there was also a provision in the Indenture of mortgage itself that after the principal sum or any part thereof and interest became payable, the defendant would execute an English mortgage in favour of the plaintiff and her other sister Safiabai. Neither the principal amount was paid nor was an English mortgage executed.

5. It would appear that the two sisters for some reason, it may perhaps have been sisterly affection for their brother, were content to allow the matters to remain as they were, because it is on record that the defendant Yusufally was regularly paying interest on the mortgage amount, at least to the plaintiff. The plaintiff has stated in her affidavit that the defendant Yusufally had agreed to pay interest at 12 per cent, instead of 6 per cent, as provided in the Indenture of mortgage, and that this amount of Ra. 110/- per month he paid to her regularly by way of interest till April 1971, after which he ceased to make the payments. The plaintiff further states that it was only then that the defendant Yusufally sought to tender interest at the rate of 6 per cent, per month, i.e., Rs. 55/-, which the plaintiff did not accept.

6. In any event, as a result of these disputes and the stoppage of payment of interest by the defendant to the plaintiff, the plaintiff filed the suit in the City Civil Court at Bombay for a declaration that the defendant was liable to pay to her a sum of Rs. 15,710/- with further interest on Rs. 11,000/- at 12 per cent. per annum from the date of the suit till the date of the decree and for interest thereafter till realisation. There was also a prayer that it may be declared that the said amount be charged on the property which was the subject-matter of the mortgage.

7. Then followed the prayer that on the defendant's failure to pay the amounts, the suit property should be ordered to be sold.

8. There was also a prayer in the plaint that pending the hearing and final disposal of the suit, the Court Receiver should be appointed to take charge of the mortgaged property.

9. The plaintiff thereafter took out a Notice of Motion for the appointment of a receiver and in her affidavit in support of the Notice of Motion sought to show the reasons and the circumstances on which it was just and convenient that a receiver should be appointed. One of the grounds taken was that the defendant was in arrears of interest and that he had also to pay the estate of the other sister Safiabai (since deceased) and that the property was very old and in a dilapidated condition. The suggestion was made that the defendant having put tenants all over the property and there being heavy litigation and taxes being in arrears the plaintiff's security for the amounts advanced and the interest thereon was in jeopardy.

10. The learned Judge of the City Civil Court (Judge Guttal) disposed of the Notice of Motion by a very short order comprising three paragraphs and he seemed to feel that the plaintiff had failed to establish that the security on which she had advanced the loan ran the risk of deterioration. He then noticed the

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