IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE K.HARILAL &

THE HONOURABLE MRS. JUSTICE ANNIE JOHN THURSDAY ,THE 06TH DAY OF DECEMBER 2018 / 14TH AGRAHAYANA, 1940 FAO.No. 27 of 2018 AGAINST THE ORDER DATED 27.01.2018 IN I.A. NO.1870/2017 IN OS

107/2017 of II ADDL.SUB COURT,TRIVANDRUM APPELLANT/COUNTER PETITIONERS/DEFENDANTS:

1 DR. B. SUNIL, AGED 47 YEARS, S/O.LATE DR. M.K BASHEER,TC 3/993, 'MALARVADY', PARUTHYPARA, MUTTADA P.O,THIRUVANANTHAPURAM 695 025

2 B. SHAMSUNAHAR, AGED 66 YEARS, W/O. LATE DR. M.K BASHEER, TC 3/993,MALARVADY',PARUTHYPARA, MUTTADA P.O,THIRUVANANTHAPURAM 695 025 BY ADVS.SRI.D.KISHORE SMT.MINI GOPINATH SRI.G.SHRIKUMAR (SR.)

SRI.R.MURALEEKRISHNAN (MALAKKARA)

RESPONDENT/PETITIONER/PLAINTIFF:

B. SAINU, ADVOCATE, AGED 45 YEARS,D/O. LATE DR. M.K BASHEER,28/2773,SOUTH PONNETH TEMPLE ROAD,CHILAVANNOOR, KADAVANTHRA,ERNAKULAM DISTRICT, PIN 682 020 BY ADVS.SRI.T.KRISHNAN UNNI(SR.)

SMT.MEENA.A. SRI.SAJU.S.A SRI.VINOD RAVINDRANATH THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON

06.12.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

K.HARILAL,J.

The respondent is the plaintiff in O.S.

No.107 of 2017 and this appeal has been filed, challenging the order passed by the Sub Court, Thiruvananthapuram, in I.A. No.1870 of 2017 filed by her in the aforesaid original suit. The aforesaid original suit was filed for a declaration of title, partition and also for a permanent prohibitory injunction. The aforesaid I.A. was filed under Order 40 Rule 1(1) read with Section 94(e) and 151 of the Code of Civil Procedure, 1908, praying for appointing a receiver, to take possession of plaint 'B' schedule property and to manage an auditorium by name 'Malarvady Auditorium', and direct the receiver to deposit the income, after deducting the expenses into the loan account of the said auditorium. [The parties are referred to as in the Interlocutory Application.]

2. The petitioner is the daughter of late Dr M.K. Basheer, the 1^st counter petitioner is the son of said Dr M.K. Basheer and the 2^nd counter petitioner is his wife. Dr M.K. Basheer died on 20.04.2017. The subject matter in dispute is 90.5 cents of property in Kowdiar village with an auditorium by name 'Malarvady Kalyana Mandapam'

situated therein.

3. According to the petitioner, her father Dr M.K. Basheer died on 20.04.2017. When he was alive, he gifted the plaint 'B' schedule property, having an extent of 90.5 cents to the petitioner, by way of oral gift, by an open declaration on 07.01.2017 and she had accepted the gift and took possession. Thereafter, she orally authorised the 1^st counter petitioner to manage the auditorium and to remit the rent in the loan account of their father with Punjab National Bank Logos Centre, Kottayam branch. Initially, the 1^st counter petitioner has remitted the amount in the account as directed by her. But, later, when she and her husband went to the auditorium on 11.05.2017 to inspect the accounts and building, the Manager refused to hand over the accounts and closed the door of the auditorium, when she was inside. Thus, she happened to be dispossessed from the plaint 'B' schedule property by the 1^st counter petitioner on that day, 11.05.2017. According to her, the 1^st counter petitioner is residing near the property. Thereafter, if the 1^st counter petitioner is allowed to continue with the management of the auditorium and nearby properties, it will be detrimental to the property. Hence, she prayed for an order appointing a receiver and directing him to take the management of the property and the auditorium therein.

4. The 1^st counter petitioner filed objection, resisting the prayer for appointing a receiver. He disputed the averment that his father Dr M.K. Basheer gifted the plaint 'B' schedule property to the petitioner, by way of an oral gift. According to him, it is not true and no such oral gift was effected, as claimed by her. She never accepted the property and he is in possession of the property, by virtue of