IN THE HIGH COURT OF KERALA AT ERNAKULAM
FAO.No. 8 of 2010()
1. JOMOL JOHN, D/O. THONATH JOHNY,
... Petitioner
2. MAJO.T.J, S/O. THONATH JOHNY,
3. RIJO.T.J, W/O. SIBIN K. THOMAS,
Vs
1. P.R.MARTHA AND OTHERS
... Respondent
For Petitioner :SRI.N.M.MADHU
For Respondent :SRI.K.JAYAKUMAR(CAVEATOR)
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice S.S.SATHEESACHANDRAN
Dated :17/06/2010
O R D E R
THOTTATHIL B. RADHAKRISHNAN
&
S.S.SATHEESACHANDRAN, JJ.
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F.A.O.NO.8 OF 2010 ()
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Dated this the 17th day of June, 2010
J U D G M E N T
THOTTATHIL B. RADHAKRISHNAN, J.
The plaintiff in a suit for partition challenges the order
refusing to appoint a receiver. The 1st defendant is the widow
and the plaintiff and defendants 2 and 3 are the children of late
Thonath Johny, who died on 14.9.2007. He was the licensee of a
petroleum outlet. The plea of the contesting defendants is that
late Johny had executed a Will on 21.6.2007. It is not much in
dispute that he was suffering from cancer and other ailments
and was undergoing treatment. It is also the material on record
that even after the alleged execution of the Will on 21.6.2007, he
had been carrying on transactions including from bank accounts
and had also effected sales of immovable properties.
2. With the aforesaid situation, as of now, the contesting
2nd respondent stands injuncted from committing any act of
F.A.O.8/2010 2
waste, improvements and also from encumbering or alienating
the suit properties. According to the appellant/plaintiff, she
stands excluded from the estate of her late father on account of
the Will propounded by the 2nd respondent. In an earlier round,
this Court confirmed the order of temporary injunction noticed
above and remitted the application for appointment of a receiver
for reconsideration.
3. Adverting to the principles laid down by the Madras
High Court in T.Krishnaswamy Chetty v. C.Thangavelu
Chetty and others (AIR 1955 Madras 430), the court below
came to the conclusion that the case in hand does not provide
ground to appoint a receiver and it was not just and convenient
to do so. The court below also relied on the decision of the Apex
Court in S.Saleema Bi. v. S.Pyari Begum and another (AIR
2000 SC 3513 (1)) and that of this Court in Das v.
Parijathamma & Others (1985 KLT 109).
4. The plaintiff should have a strong prima facie case to
succeed at trial. Above that, it must be just and convenient, as
also the requirement that urgent measures are enforced. In
F.A.O.8/2010 3
such situations, the discretionary relief of appointing a receiver
on the principles laid down by the aforesaid decisions would be
considered. The learned counsel for the appellant very
persuasively submitted that the facts of the case in hand appear
to be more similar to the one dealt with in the decision of the
Madras High Court in Jambagavalli Ammal v. Govindaraja
Kandiar and another (AIR 1980 Madras 103). Perusing that
judgment, we are of the view that the said decision rests on the
peculiar facts of that case and cannot be treated as laying down
any principle of law, since the approach adopted in paragraph 4
of that judgment does not appear to be in tune with the decision
of the Apex Court, as also the earlier decision of the Madras
High Court, noted above.
5. On facts, the court below noticed that the testator had
dealt with and disposed immovable properties owned by him,
even after the alleged execution of the Will. The court noticed
that very valuable immovable properties, stated to be worth in
crores, have been disposed of by the late father of the plaintiff.
The appellant/plaintiff does not challenge those sales by her late
father. It was also noticed that the evidence on record indicate
F.A.O.8/2010 4
that he had made several banking transactions including
withdrawals and deposits even after the date of the Will, even
when he was sick. On such material, the court below held,
prima facie, that the testator was of appropriate physical and
mental status for the execution of the Will. It was also noticed
that even if it were non-testamentary succession, the major
sharers would be the defendants, who are the widow, son and a
daughter of the deceased and therefore also, it would not be just
and convenient to appoint a receiver, dispossessing them.
6. With the aforesaid reasonings, we looked into the
different items of properties which fall as a subject matter of the
litigation. We do not find any managerial issue arising, except in
relation to the running of the petroleum outlet, since the other
properties and the interests therein are properly secured by the
order of temporary injunction already granted.
6. In the aforesaid circumstances, we modify the order of
the court below directing the 2nd respondent to furnish to the
court below, the copies of the account statements of the
petroleum outlet, duly authenticated by the Chartered
F.A.O.8/2010 5
Accountant. Let this be done on a periodical basis, once in three
months. We also direct that the court below, in the final
adjudication of the case, would eschew all findings, views and
observations in the impugned order and also in this judgment
touching the merits of the contentions between the parties. The
appeal is ordered accordingly.
Sd/-
THOTTATHIL B. RADHAKRISHNAN
JUDGE
Sd/-
S.S.SATHEESACHANDRAN
JUDGE
prp
true copy//
P.A. to Judge
F.A.O.8/2010 6