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1964 Supreme(Ori) 76
HIGH COURT OF ORISSA
S. Barman, Ag. C. J. And G. K. Misra, J.
CHAITANYA NAIKO - Appellant
Versus
KANDHINO NAIKO - Respondent
M. A. 141 Of 1964
Decided On : SEPTEMBER 11, 1964
B.Mohapatra, G.RATH, P.V.B.RAO, P.V.Ramdas, Y.S.N.MURTY
The Court should be cautious about appointing a receiver of property in possession of the defendant who claims it by legal title, unless the plaintiff can show prima facie that he has a strong case and good title to the property.
Headnote:
RECEIVER - APPOINTMENT - JOINT FAMILY PROPERTY - PRINCIPLES - CIRCUMSTANCES - COURT'S DISCRETION - ADVERSE POSSESSION - LEGAL TITLE - PRIMA FACIE CASE - STRONG TITLE - IRREPARABLE MISCHIEF - POSSESSION OF DEFENDANT - DISTURBANCE - ACCOUNTABILITY - DISTRIBUTION OF GRAIN PITS.
Fact of the Case:
In a suit for partition of joint family property, the plaintiff mother applied for the appointment of a receiver alleging that the defendant son, who claimed to be the adopted son of the plaintiff's husband's uncle, had fallen into bad association, removed valuable properties from the house, and at times was beating her. The Subordinate Judge appointed an Advocate as receiver of the entire properties.
Finding of the Court:
The Court held that the appointment of a receiver in a partition suit between members of a joint family, especially where the family property consists of immovable property, requires special circumstances to be proved. The Court also held that the mere circumstance that the appointment of a receiver will do no harm to anyone is no ground for appointing a receiver. Moreover, the Court should be cautious about putting a third party as a receiver of properties in the possession and enjoyment of members of a joint family and thereby disturbing their possession.
Issues: 1. Whether a receiver should be appointed in a partition suit between members of a joint family? 2. Whether the mere circumstance that the appointment of a receiver will do no harm to anyone is a ground for appointing a receiver? 3. Whether the Court should be cautious about putting a third party as a receiver of properties in the possession and enjoyment of members of a joint family?
Ratio Decidendi: 1. The Court held that the appointment of a receiver in a partition suit between members of a joint family, especially where the family property consists of immovable property, requires special circumstances to be proved. 2. The Court held that the mere circumstance that the appointment of a receiver will do no harm to anyone is no ground for appointing a receiver. 3. The Court held that the Court should be cautious about putting a third party as a receiver of properties in the possession and enjoyment of members of a joint family and thereby disturbing their possession.
Final Decision: The Court set aside the order of appointment of receiver made by the Subordinate Judge and discharged the Receiver appointed by him. The Court directed that the defendant son should remain in possession as receiver of the lands already under his sole cultivation, and that the plaintiff mother should remain in possession as receiver of the remaining lands. The Court also directed the trial court to appoint a Commissioner to complete the inventory of all the moveables and to distribute the paddy from the grain pits in the ratio of 3: 7.
BARMAN, AG. C. J.
( 1 ) IN what circumstances a third-party should not be appointed as Receiver is the point involved in the appeal from an order by which the learned Subordinate Judge of Cuttack, appointed an Advocate as Receiver of the entire joint family properties in a suit for partition filed by a widowed mother against her sons and daughters.
( 2 ) IN December 1962 one Laxminarayan Naiko died leaving him surviving his widow the plaintiff Kandhuni Naikani, his natural born son defendant No. 1 chaitanya (alleged to be adopted son of Laxminarayan's uncle Nityananda)defendants 2, 3 and 4 his other sons and defendants 5 to 10 his daughters. The deceased Laxminarayan is said to have died leaving properties valued in the suit at Rs. 75,000.
( 3 ) DEFENDANT No. 1 Chaitanya claims to have been adopted by Chitra, widow of laxminarayan's uncle Nityananda, and as such Chaitanya claims half share in the suit properties. It is said that in 1948 in settlement operations Laxminarayan put certain objections and made a statement that Chaitanya had been adopted as son of his paternal uncle Nityananda; accordingly Chaitanya was recorded and recognised as adopted son of Nityananda; and certain items of properties measuring 30 acres of land some of which were purchased by Laxminarayan were recorded in the name of Chaitanya. In 1946 Chitra, widow of Nityananda is also said to have made a statement that Chaitanya is the adopted son of her husband nityananda Chaitanya relied on the admission by Laxminarayan that he (Chaitanya) is the adopted son of Nityananda, and contends that the plaintiff is bound by such admission of her husband Laxminarayan.
( 4 ) THE plaintiff's case is that the alleged adoption of Chaitanya as son of nityananda is not genuine; that the statement made by Laxminarayan in the settlement proceedings is not correct. The plaintiffs further case is that defendant no. 1 Chaitanya is entitled to only 1/6th share in the suit properties.
( 5 ) ON the application of the plaintiff mother for receiver, the Subordinate Judge appointed an Advocate as receiver of the entire properties mainly on the allegations that defdt. No. 1 Chaitanya a young man of 19 years had fallen in bad association, removed valuable properties worth Rs. 10,000 from the house and at times was beating his mother the plaintiff. As regards Chaitanya's claim by virtue of alleged adoption, the learned Sub-Judge took the view that adoption not being a natural course of succession the person claiming adoption has to prove it; that a mere entry in the record-of-rights or the order of Settlement Officer or village karnam cannot raise any presumption of adoption; that the pltff. appears to have made a prima face case. The learned Subordinate Judge also took the view that defdt. No. 1 Chaitanya will not be prejudiced by appointment of receiver in respect of the entire properties.
( 6 ) WHAT are the guiding principles for appointment of receiver in such cases? It is necessary to allege and prove some peril to the property; the appointment then rests on the sound discretion of the Court. In exercising its discretion the Court proceeds with caution and is governed by a view of all the circumstances. No positive or unvarying rule can be laid down as to whether the Court will or will not interfere by this kind of interim protection of the property. The Court will not as a general rule appoint a receiver in a partition suit between members of a joint family especially where the family property consists of immovable property; to appoint a receiver in such a case, special circumstances must be proved; a receiver may be appointed in a suit for partition of joint Hindu family property where there is a prima facie case of misappropriation by the manager of the family.
( 7 ) THAT apart, in dealing with an application for appointment of receiver, the Court has to keep in view the legal principle that the Court should not appoint a receiver of property in possession of the defendan
