Requirements formulated in AIR 1955 Mad 430 not established.

K. GNANAPRAKASARN, J.

( 1 ) THE respondent/defendants have filed the civil miscellaneous appeal against the order dated 30. 4. 1998 passed by the City Civil Court (111 additional Judge) Chennai in I. A. No. 5093 of 1997 in O. S. No. 1682 of 1997.

( 2 ) FOR the purpose of convenience, the parties will be referred to as they were arrayed in the original suit.

( 3 ) THE plaintiffs filed the suit for partition and allotment of one fourth share in both the items of the suit properties. The contention of the plaintiff in the suit is that both the items of properties are ancestral joint family properties consisting of his father Late Velaytham Pillai and the plaintiff and the defendants herein. Velaytham Pillai died on 30.8.1996 and his wife Alamelu Ammal pre-deceased him. The plaintiffs and the defendants 2 and 3 are residing in different portion in the first item of the property and the first defendant viz. . Lakshmi is residing in a portion in the second item of the property. After funeral ceremonies of late Velaytham Pillai, the plaintiff and the defendants sat together for amicable partition. On the basis of the amicable partition, the third defendant collected the August month rent from the tenants and spent it for death ceremony functions and agreed to collect the rent to the first defendant from September, 1996 onwards Accordingly, the third defendant collected the rent for the month of September and October, 1996 and handed over to the respondents and that thereafter stopped doing so. Hence, the plaintiff filed the suit and also the application for the appointment of advocate Receiver.

( 4 ) THE defendants in the suit who are the respondents in the petition resisted the petition filed by the plaintiff seeking appointment of receiver. The first defendant/respondent viz. , Lakshmi filed a counter wherein she has stated that her father left a Will dated 13. 6. 1994, by which she is entitled to half share in the second item of the property. Her father also left another Will of even dated by which, the defendants 2 and 3 are entitled to first item of the property. The plaintiff is entitled to half share in the second item of the property. The third respondent viz. , Kannan also filed a counter almost making the very same contentions raised by the first defendant-lakshmi.

( 5 ) THE Trial Court had taken up the receiver application on file in i. A. No. 5093 of 1997 and by an order dated 30. 4. 1998 allowed the application. As against the same, the defendants/respondents have filed the present appeal.

( 6 ) THE appellants who are respondents/ defendants before the Trial court have submitted that it is neither justified nor convenient to appoint a Receiver to collect rent and deposit the same into the Court. They further submitted that the Court erred in appointing the third party receiver which would be a liability and encumbrance on the estate of the deceased velaytham Pillai.

( 7 ) THE respondents/plaintiff has advanced his argument justifying and in support of the order passed by the court below.

( 8 ) I have carefully considered the rival submissions of both the appellants and also the respondent.

( 9 ) THE appellants, who are the respondents/ defendants before the Trial Court relied upon two Wills dated 13. 6. 1994 said to have been executed by their father Velaytham Pillai. On the contrary, the respondent-plaintiff contended that Velaytham Pillai died intestate and further these properties are joint family properties and Late Velatham Pillai had no right to execute a Will in respect of joint family properties.

( 10 ) AS the respondent/plaintiff has filed the suit for partition, the respondents/defendants contended that there is a Will, it is too early to decide at this stage whether there is any Will left by Velaytham Pillai, or he died intestate? But, however, we have to consider whether the Court below was justified in appointing a third party receiver to manage the properties.

( 11 ) ORDER 40, Rule 1 of C. P