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2025 Supreme(Online)(Ker) 15395
IN THE HIGH COURT OF KERALA AT ERNAKULAM
SYAM KUMAR V.M., J
JASEELA – Appellant
Versus
REJILA BEEVI @ REJILA – Respondent
FAO 150/2024
R.SUNIL KUMAR, A.SALINI LAL, JINU P. BINU, J.M.DEEPAK, P.A.AYUB KHAN, R1, T.A.RAJEEV, R2, AMRITH M.J., R3 & R4, NIJOY P.K., R5, JOBI.A.THAMPI, R6, NIJI K.SHAHUL(K/1158/2010), ARYA A.R.(K/1666/2018), C.PRABITHA(K/528/2009), REJOICE B.CHEMBAKASSERIL(K/941/2015), RAHUL T.(K/003860/2024), ISABELL MANOJ(K/003266/2023)
The appointment of a Receiver in partition suits is justified when a strong prima facie case exists, ensuring property preservation amidst disputes.
Headnote:(A) Code of Civil Procedure, 1908 - Order 40 - Appointment of Receiver - The appointment of a Receiver in a partition suit was upheld by the court, emphasizing the need for preserving property amidst disputes among heirs of a deceased individual. The court found a strong prima facie case for the plaintiff, justifying the Receiver's appointment to manage the business and collect rents. (Paras 6, 13, 16)
(B) Discretionary Power of Court - The court reiterated that the appointment of a Receiver is a discretionary power that must be exercised with caution, ensuring that it does not unjustly deprive a party of possession. (Paras 13, 16)
(C) Prima Facie Case - The court held that the plaintiff demonstrated a prima facie case for the appointment of a Receiver, as the property was at risk of mismanagement and loss. (Paras 16, 17)
(D) Conduct of Parties - The court noted the conduct of the parties, indicating that the appellants had attempted to take possession of the property unlawfully, which justified the Receiver's appointment. (Paras 16, 17) (E)
Result: The appeal against the appointment of the Receiver was dismissed, affirming the Sub Court's decision.
JUDGMENT
Dated this the 08th day of April, 2025
The appointment of a Receiver in a suit for partition is challenged in this appeal.
2. The appellants are defendants 1 and 2 in O.S.No.43 of 2024 before the Subordinate Judge’s Court, Attingal. The 1st respondent is the plaintiff and respondents 2 to 6 are the defendants 3 to 7 in the said suit.
3. The 1st respondent (plaintiff) had filed I.A.No.4 of 2024 in O.S.No.43 of 2024 seeking to appoint a Receiver to manage the business in plaint A schedule property and collect rent. The said I.A. was allowed by the Sub Court, Attingal vide order dated 04.12.2024. The Official Receiver attached to the District Court, Thiruvananthapuram, was appointed as the Receiver. Appellants challenge the said appointment as illegal and unsustainable.
4. O.S.No.43 of 2024 from which the order impugned herein emanates is one among the many suits that are filed, disposed and pending at the instance of the family members of late Abdul Vahid. The said suits concern the substantial properties left by late Abdul Vahid and reflect the internecine disputes between the surviving family members comprising the wife, children of late Abdul Vahid, as well as third parties pertaining to said properties. The present suit in which the partition of plaint schedule A property was sought and a Receiver had been appointed, concerns the land having an extent of 54.06 Ares belonging to late Abdul Vahid situated in Navayikulam Village, on which an ice plant and wholesale fish market styled as ABV & Co. are situated.
5. Abdul Vahid died on 04.04.2023. On 05.04.2023, a suit for injunction, O.S.No.156 of 2023, was filed by the 1st appellant, daughter of late Abdul Vahid before the Munsiff Court, Varkala, against 3rd and 5th respondents, who are the daughter and son-in- law of late Abdul Vahid. The said suit was later transferred to the Sub Court, Attingal and re-numbered as O.S.No.86 of 2024. Subsequently, O.S.No.40 of 2023 was filed before the Sub Court, Attingal, by respondents 3 and 4, daughter and wife of late Abdul Vahid, against the 1st appellant and 1st and 2nd respondents claiming ownership of specific properties based on an oral Will by late Abdul Vahid. Thereafter, O.S.No.51 of 2023 was filed by the 1st appellant, arraying respondents 1 to 5 as defendants, seeking title and possession based on two settlement deeds of 2023. The 2nd respondent, who is the son of late Abdul Vahid, filed a counterclaim in the said suit claiming possession. Thereafter, purportedly due to the cruelty meted out by the appellants upon the 4th respondent, wife of late Abdul Vahid, the 1st respondent has filed O.S.No.43 of 2024, seeking partition of properties and for a declaration that the two settlement deeds are not binding on her. It is in such a back drop that the Sub Court proceeded to consider I.A.No.4 of 2024 filed in O.S.No.43 of 2024 seeking the appointment of Receiver.
6. The learned Sub Judge vide the impugned order allowed I.A.No.4 of 2024 and appointed the the official Receiver to manage the relevant properties and run the business inter alia holding that the facts and circumstances disclose a strong prima facie case in favour of the 1st respondent (plaintiff) and that it would be unjust to allow the 1st appellant to continue realising the entire income from the plaint A schedule till the disposal of the suit. As regards the settlement deed No.563/2023 (Ext.A1) relied on by the 1st appellant, the learned Sub Judge reached a prima facie conclusion that the signature therein is totally different from the signature of late Abdul Vahid in other documents and that a bare comparison by any prudent person can only lead to such a conclusion. The learned Sub Judge had also taken note of the fact that none of the parties had disputed that late Abdul Vahid had executed settlement deed No.1499/2014 and that thereafter he had unilaterally cancelled the same. The validity of the said cancellation, it was concluded, is a matter which is to be adjudicat
