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High Court Of Delhi
USHA SUBRAMANIAM - Appellant
Versus
CDR.DALJIT KUMAR BHANDARI - Respondent
Interim Application 10362 of 1992
Decided On : 04/25/1994
RECEIVER - APPOINTMENT - SUIT PROPERTY - OWNERSHIP DISPUTE - PROBATE NOT OBTAINED - JOINT RECEIVERS APPOINTED - INTEREST OF JUSTICE.
Fact of the Case:
Plaintiffs, daughters of the deceased owner, filed a suit seeking appointment of a receiver for the suit property, alleging fraud in a previous decree declaring the deceased's wife as the owner and challenging the Will executed by her. The defendants, including the executor of the Will, opposed the application, claiming absolute ownership and arguing that the plaintiffs had no right or interest in the property.
Finding of the Court:
The court noted that probate had not been obtained for the Will and that the right of the executor could not be accepted as exclusive. It also observed that the property was in possession of a lessee who had exercised an option to renew the lease agreement. The court further noted that the executor was frequently abroad and that the beneficiaries under the Will were opposed to the preservation of the property by him alone.
Issues: 1. Whether a receiver should be appointed for the suit property in light of the ownership dispute and the absence of probate for the Will. 2. Whether the plaintiffs had a prima facie chance of succeeding in the suit challenging the decree and the Will.
Ratio Decidendi: The court applied the principles for appointing receivers, including the requirement of a prima facie chance of success in the suit and the need to prevent a scramble for possession of the property. It held that, in the interest of justice, it was appropriate to appoint joint receivers, one from the plaintiffs and one from the defendants, to preserve the property and manage its income and expenses.
Final Decision: The court appointed the plaintiff No. 1 and defendant No. 1 as joint receivers of the suit property, directing them to open a joint bank account, maintain regular accounts of income and expenses, and operate the account jointly.
( 1 ) THIS is an application filed on behalf of the plaintiff underorder 40 Rule I read with Order 39 Rules 1 and 2 and Section 151 of the Code of Civilprocedure for appointment of a Receiver with regard to the property bearinghouse No. 224, Jor Bagh, New Delhi.
( 2 ) BRIEFLY stated the facts of the case are that the property bearing house No. 224, Jor Bagh, New Delhi (in short the suit property) was owned by Shri G. L. Bhandari who died on 18/12/1958. Shri G. L. Bhandari left behind his wifesmt. Shakuntala Bhandari, mother Smt. Kulwanti, two daughters (who are plaintiffs 1 and 2 in this suit), three sons, namely, Shri Daljit Kumar Bhandari (defendantno. 1 herein), Shri Ranjit Kumar Bhandari (defendant No. 2 herein) and Shri Dalipkumar Bhandari. Smt. Kulwanti died on 18. 12. 65 and Shri Dalip Kumar Bhandaridied on 29. 4. 1978. Defendant No. 3, namely, Shri Shailendra Bhandari is the sonand defendant No. 4, namely, Smt. Gayatri Lamba is the daughter of late Shri Dalipkumar Bhandari.
( 3 ) THE case of the defendants is that after the death of Shri G. L. Bhandari, Smt. Shakuntala Bhandari filed a suit No. 68/59 seeking declaration that she was theowner of the suit property. It is alleged by the defendant No. 1 that the plaintiffswere also impleaded as defendants in the said suit and after no objection was filedby the plaintiffs, the defendants 1 and 2 and late Shri Dalip Kumar Bhandari who isthe father of the defendants 3 and 4, the suit was decreed in favour of Smt. Shakuntala Bhandari. Pursuant to the said decree, the suit property was mutatedby the Land and Development Officer, New Delhi in favour of Smt. Shakuntalabhandari.
( 4 ) IN terms of alleged lease agreement dated 15/12/1988, the suitproperty was let out by Smt. Shakuntala Bhandari through her attorney Shri Sarvjitbhandari (defendant No. 5) to Dr. Hans Jurgen Axer initially for a period of threeyears and renewable for a further period of two years. It was further stated in thelease deed that the rent would be increased by 12% for the 4th and 5th Calanderyear respectively. It was also mentioned in the lease deed that the lessee had anoption to renew the lease after a period of 5 years subject to an increase of rent ofat least 15% of last paid rent in all for an additional period of two years. Though theperiod of 5 years lapsed on 31/12/1993, the suit property is still with thelessee, namely. Dr. Hans Jurgen Axer and in terms of the lease deed, he cancontinue as a lessee upto 31/12/1995.
( 5 ) MR. Banerjee, learned Counsel appearing on behalf of defendant No. 1submitted that Smt. Shakuntala Bhandari was the absolute owner of the suitproperty and she had executed a Will on 7/08/1974 and in terms of the Willdefendants 1 to 4 were the benefeciaries with regard to the suit property andplaintiffs had no right, title and interest in the succession of the estate of Late Smt. Shakuntala Bhandari. He further submitted that in terms of the said Will defendantno. 1 had been named the executor and he had already applied for the grant of theprobate in the case bearing Probate Petition No. 55/1991. He, therefore, contendedthat the present application filed on behalf of the plaintiffs who had no right in thesuit property was not maintainable.
( 6 ) LEARNED Counsel for defendant No. 1 further submitted that the desire ofthe testator must be honoured and unless there was an application for removal ofthe executor in the Probate proceedings, he could not be removed. He, therefore,contended that the defendant No. 1 was the executor and since no application hadbeen filed for his removal in the probate proceedings, he could not be removed. Insupport of his contention, learned Counsel placed reliance on a judgment of the Calcutta High Court in the case of Bali Ram Dote v. Bhupendra Nath Banerjee andors. , AIR 1978 Calcutta 559 and a judgement of Andhra Pradesh High Court in thecase of Sri Raja Kakarlapudi Venkata Sudarsana Sundara Narasayyamma Guru (died), v. Andhra Bank Ltd. , Vijayawa
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