1985 Supreme(Raj) 480
RAJASTHAN HIGH COURT
Kanta Bhatnagar, J.
Madhopuri And Ors. - Appellant
Versus
Banshidhar And Ors. - Respondent
S.B. Civil Misc. Appeal No. 156 of 1984.
Decided On : 22-05-1985
The Court has the discretion to appoint a receiver in a suit, and the appellate Court will be slow to interfere with the discretion of the lower Court in the appointment of a receiver, and would interfere only if satisfied that the discretion has not been exercised in accordance with settled principles of law.
Headnote:
RECEIVER APPOINTMENT - PUBLIC TRUST - REGISTRATION - JURISDICTION - CIVIL COURT - POSSESSION - DISPOSSESSION - REQUIREMENTS - EMERGENCY - DANGER - LOSS - CONDUCT OF APPLICANT - DISCRETION OF COURT - INTERFERENCE BY APPELLATE COURT - PUBLIC TRUST ACT, 1959 (RAJASTHAN) - SECTIONS 29, 73 - ORDER 40, RULE 1 CPC.
Fact of the Case:
Suit for possession of property belonging to Smt. Sunder Bai was filed by respondents on May 2, 1980, in forma pauperis. Various applications were filed for the appointment of a receiver on the ground that the property was being damaged by the appellants-defendants. The learned Judge allowed the prayer and appointed a receiver for the property.
Finding of the Court:
The Court held that the suit was maintainable even though the Trust was not registered as the registration was pending before the Assistant Commissioner Devasthan. The Court also held that the provisions of Section 73 of the Act excluding the jurisdiction of Civil Courts did not apply in this case as the suit was for a declaration that the order of the Devasthan Commissioner was void. The Court further held that the requirements for the appointment of a receiver were fulfilled in the present case and that the learned Judge had not erred in exercising his discretion to appoint a receiver.
Issues: 1. Whether the suit was maintainable as the Trust was not registered? 2. Whether the provisions of Section 73 of the Act excluding the jurisdiction of Civil Courts applied in this case? 3. Whether the requirements for the appointment of a receiver were fulfilled in the present case?
Ratio Decidendi: 1. Section 29 of the Act does not prohibit the institution of a suit by an unregistered Trust but creates a bar for hearing and deciding such suits by the Court. 2. The provisions of Section 73 of the Act excluding the jurisdiction of Civil Courts do not apply to cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. 3. The requirements for the appointment of a receiver are: (a) The appointment of a receiver pending a suit is a matter resting in the discretion of the Court; (b) The Court should not appoint a receiver except upon proof by the plaintiff that prima facie he has a very excellent change of succeeding in the suit; (c) Not only must the plaintiff show a case of adverse and conflicting claim to property but, he must show some emergency or danger or loss demanding immediate action and of his own right he must be reasonably clear and free from doubt. The element of danger is on important consideration; (d) An order appointing a receiver will not be made where it has the effect of depriving a defendant of a 'de facto' possession since that might cause irreparable wrong. It would be different where the property is shown to be 'in medio', that is to say, in the enjoyment of no one; (e) The Court, on the application made for the appointment of a receiver, looks to the conduct of the party who makes the application and will usually refuse to interfere unless his conduct has been free from blame.
Final Decision: The appeal was dismissed.
JUDGMENT
1. - A. suit for possession of the property belonging to one Smt. Sunder Bai was filed by the respondents on May 2, 1980 in forma pauperis which after inquiry was registered on July 17,1981. On August 5, 1983 the respondents were permitted to proceed with the suit in forma pauperis. Various applications were filled in those proceedings by the plaintiffs respondents for appointment of receiver on the ground that the property was being damaged by the appellant-defendants. By the order under appeal, the learned Judge allowed the prayer and appointed receiver for the property.
2. Suit was filed by the respondents as Trustees of "Smt. Sunder Bai Public Charitable Trust" (here in after to be referred as 'the Trust'). It was averred in the plaint that on December 2, 1978 Smt. Sunder Bai treated a Trust through a Will. Sunder Bai died on February 24, 1979. The grievance of the Trustees was that the appellants were damaging the property and were intending to erect construction on the open land. The defendants claimed the property through a registered Will dated June 26, 1971 executed in favour of Madhopuri and Bhanupuri appellants, being nephews (brother's son) of Smt. Sunder Bai. Appellant Yashwant Puri claims to be in possession in his right as being nephew (Son of Jeth--elder brother of husband) of Smt. Sunder Bai. Five applications for appointment of receiver were filed by the respondents-Trustees on various dates. The last application being dated April 18,1983 which was decided by the order under appeal.
3. Respondent No. 1 entered Caveat. Notices were issued to the remaining respondents at the admission stage Mr. S.C. Maloo represented respondent No. 1 and Mr. M.D. Kalla respondent Nos. 2 and 3.
4. Mr. H.M. Parekh, learned counsel for the appellants submitted that there was a registered Will executed on June 29, 1971 by Smt. Sunder Bai in favour of appellants Madhopuri and Bhanupuri who happened to be her nephews while Yashwant Puri being the son of the elder brother of Smt. Sunder Bai's husband belongs to her family and was in possession of the house in that right. That, the Will dated December 2, 1978 was not a registered one and there was no reason for Smt. Sunder Bai to cancel the will in favour of her nephews who served her till her last and create a charitable Trust. That the last rites of Smt. Sunder Bai after her death were performed by Madhopuri and Bhanupuri in the same house which they could have done only if they were in possession of the house.
5. The first point raised by Mr. Parekh to assail the findings of the learned Judge on the question of appointment of receiver is that the suit was not maintainable as the Trust was not registered. That, Section 29 of the Act creates a bar against the suits by registered Trusts.
6. Mr. Kalla, controverted this contention on this ground that it is not a case where the Trustees might not have taken care to get the Trust registered . Smt Sunder Bai had died on February 24, 1979. Thereafter as early as on March 8, 1979 application for registration was filed before the Assistant Commissioner Devasthan and the Trust was registered. On August 1, 1979 in pursuance of the order dated July 31, 1979 a registration certificate was issued. The appellants preferred appeal before Devasthan Commissioner who by the order dated April 7, 1980 sent the case back to the Assistant Commissioner for deciding the question of registration after hearing the appellants-defendants.
7. Mr. Kalla submitted that in the suit filed by the respondents the validity of the order of the Commissioner dated April 7, 1980 has been challenged with the prayer that it may be declared void. That, Section 29(1) of the Act does not prohibit institution of the suit by unregistered Trust rather creates bar for hearing and deciding of such suits by the Court.
8. Mr. Parekh referred to Sub-section (2) of Section 29 of the Rajasthan Public Trust Act, 1959 (here in after to be referred as 'the Act') and submitted that the prov
Click Here to Read the rest of this document
Back
