ORDER
N. Arumugham, J.
1. The twelve defendants before the trial court are the appellants herein in C.M.A. No. 621 of 1992 and the petitioners in C.M.P. No. 10175 of 1992 seeking the relief of stay of operation of the order passed by the learned Subordinate Judge, Sivaganga in I.A. No. 527 of 1991 in O.S. No. 43 of 1982 dated 13.3.1992 appointing joint receiver to maintain and manage totally 17 items of the suit properties against the plaintiffs/ respondents and their defendants.
2. The short facts which are necessary for the purpose of disposing these civil miscellaneous petitions are stated as follows:
The second respondent herein has filed a suit in O.S. No. 43 of 1982 on the file of the Sub Court, Sivaganga, for the relief of partition, separate possession mesne profits and other reliefs against the appellants herein as well as the other respondents. Most of them are their brothers, sisters and Legal representatives and alienee and they are in actual possession and enjoyment of all the plaint schedule properties which are described in the schedules to the plaint. The suit was contested very seriously. After full-fledged trial and after having fully considered the evidence both oral and documentary, the learned trial Judge granted a preliminary decree for partition and separate possession and so on in respect of some of the properties alone in favour of the plaintiff and the defendants. With regard to some of the properties, it was stated that the learned trial Judge was totally unable to identify that they are joint family properties available for partition in the suit. Aggrieved at this, both the plaintiff and the defendants filed several appeals, before this Court which are four in number pending in this Court. The decree and judgment was rendered by the learned trial Judge on 13.3.1992 and on the same day, in an application filed on behalf of the 7th respondent by name V. Narayanan alias Ramakrishnan for appointment of the receiver under Order 41, Rule 1 of the Code of Civil Procedure, the learned trial Judge has appointed joint receivers viz., defendants 3, 5, 6, 7, 23 and 26, to take charge and manage the 17 items of the suit properties. Since there was no dispute with regard to the identity of the said properties I do not propose to traverse the same itemwise in this order. Treating the said properties as joint family properties, as observed in his Judgment, the learned trial Judge has appointed Joint receivers as aforesaid. Aggrieved at this, the present appeal namely, C.M.A. No. 621 of 1992 has been preferred by the affected defendants who are the petitioners herein totally 12 in all, and in this appeal by riling a petition in C.M.P. No. 10175 of 1992 an interim stay of operation of the said order was also obtained and upon serving the notice of the same, the affected defendants and the petitioner before the court below have come forward with a petition, namely C.M.P. No. 5305 of 1993 to vacate the stay granted by this Court. For the reason of identical nature both on factual as well as on legal aspects involving the same parties, I have heard both the applications for disposing the same together by passing this common order.
3. I have heard Mr. K. Sarvabhuman, the learned Senior Counsel for and on behalf of the appellants/ petitioners herein, who would mainly contend that while passing the impugned order on 13th March, 1992, the very legal tenor and the ratio provided under Order 41, Rule 1 of the Code of Civil Procedure has not been followed by the learned trial Judge and that in any event, there arose no occasion or need to appoint joint receivers on the admitted facts and circumstances and that, therefore, the impugned order passed by him became vulnerable and liable to be set aside. The learned Senior Counsel contended nextly that five items of the properties covered under the impugned order are admittedly in possession of the lady defendants in the suit, who are not coparceners under the Hindu Law, and in such capacity they are not deemed to be the members of the Joint family and that, therefore, the impugned order was assailable on that ground also and thirdly, he would contend that the properties were purchased in the name of the lady members as early as 1955, long before the suit, and that Section 4, Sub-clause (2) of the Benami Transaction (Prohibition) Act, 1988, is a clear bar to hold that they are the joint family properties and consequently, the impugned order is liable to be set aside and lastly it was contended that with regard to 12 items of the suit properties which are in the actual possession and enjoyment of the respective sharers of the family, there arises no need or occasion to deprive them of their legal possession while passing preliminary decree alone and that even so, the finding of the learned trial Judge with regard to the said 12 items are concerned the same are not available for partition. Upon the said grounds, the senior counsel would contend that the impugned order is liable to be set aside. But, however, the subject-matter of the pending CM.A. is the stay granted slopping the operation of the said order in the LA.
4. Per contra, Mr. R. Krishnamoorthy, the learned Advocate General, appearing for and on behalf of the other defendants/ respondents would contend that there was a clear finding given by the learned trial Judge in his Judgment that though the five items of the suit properties stand in the name of the womenfolk of the plaintiff and the defendants’ family by means of a separate document, those were treated as joint family properties although and that, therefore, they are deemed as joint family properties, fully available for the relief granted in the suit itself. The same ground was relied on by the learned Advocate General with regard to the other 12 items of the properties. To justify the appointment of the Joint receivers the learned Advocate General would say that the 17 items of the properties covered under the impugned order are very valuable ones being enjoyed by the respective persons, namely, the petitioners/ appellants herein but they are neither submitting any accounts, nor giving any share to the other c
5. Before proceeding further it has become necessary for me to advert to the settled position of law, as enunciated by the highest Court of this land, for appointing the receivers under Order 40, Rule 1 of the Code. In T. Krishnaswamy Chetty v. C. Thangavelu Chetty and Ors. A.I.R. 1955 Mad. 430, a learned single Judge of this Court has categorized the five requirements to be fulfilled to appoint a receiver under Order 40, Rule 1 which are extracted hereunder:
(1) The appointment of a receiver pending a suit is a matter resting in the discretion of the court.
(2) The court should not appoint a receiver except upon proof by the plaintiff that prima facie he has a very excellent chance of succeeding in the suit.
(3) Not only must the plaintiff show a case of adverse and conflicting claims to property, but, he must show some emergency or danger or loss demanding immediate action and of his own right he must be reasonably clear and free from doubt. The element of danger is an important consideration.
(4) An order appointing a receiver will not be made where it has the effect of depriving a defendant of a de facto possession since that might cause irreparable wrong. It would be different where the property is shown to be ‘in medio’ that is to say, in the enjoyment of no one, and
(5) The court, on the application made for the appointment of a receiver, looks to the conduct of the party who makes the application and will usually refuse to interfere unless his conduct has been free from blame.
6. While enunciating the above five legal requirements, the learned Judge has made a thorough investigation and referred to very many number of case laws both in our country and England and I am entirely in agreement with the learned Judge who has pointed out all the ingredients as set out above.
7. In Subramania Odear and Ors. v. Govindammal and Anr. (1993)2 M.LJ. 129, a learned single Judge of this Court, while speaking for the scope of Order 40, Rule I of the Code, has observed as follows:
The appointment of a receiver is recognised as one of the harshest remedies which the law provides for the enforcement of rights and is allowable only extreme cases and in circumstances where the interest of the person seeking the appointment of a receiver is exposed to manifest peril. Therefore, this exceedingly delicate and responsible duty has to be discharged by the Court with the utmost caution and only when the five requirements embodied in the words just and convenient’ in Order 40, Rule 1, C.P.C. are fulfilled by the facts of the case under consideration.
Following the ruling held in T. Krishnaswamy Chetty v. C. Thangavelu Chetty and Ors. A.I.R. 1955 Mad. 430, the earlier one, the learned Judge has held further that:
the appointment of a receiver is made to preserve the property pending litigation to decide the rights of the parties or to prevent the scramble among those entitled. It is necessary to allege and prove some peril to the property. The court by taking possession of the property at the instance of the plaintiff may be doing irreparable wrong to the defendant. If the plaintiff should eventually fail in establishing his right against the defendant, the court may by its interim interference cause mischief to the defendant for which the subsequent restoration of the property may offer no adequate compensation. It is true that the court has got absolute discretion in the matter of appointment of receiver. But the discretion cannot be exercised in an arbitrary and in an unreasonable manner. It has to be exercise cautiously judicially and according to well established legal principles.
Thus, the earlier case law has been followed by this | Court in the latter one referred to above.
8. A casual reading of Order 40, Rule 1 of the Code, which says:
(a) appoint a receiver of any property, whether before or after decree;
(b) remove any person from the possession or custody of the property;
(c) commit the same to the possession, custody, or management of the receiver and
(d) confer upon the receiver all such powers as to bringing and defending suits and for realization, management, perfection, preservation and improvement of the property, the collection of the rents and profits thereof, the application and disposal of such rents and profits and the execution of the documents as the owner himself has, or such of those powers as the court thinks fit.
(2) Nothing in this rule shall authorise the Court to remove from the possession or custody of property and person whom any party to the suit has not a present right so to remove.
would clinchingly establish that a prima facie proof as to the detriment to the suit property is a sine quo non for invoking this provision to appoint a receiver to any property. To understand clearly, the five requirements spelt out by the learned single Judge in the first case law referred above is the one still holds a good law. If the said principle is imported to the facts of the instant case, I have no hesitation to hold that none of the ingredients above referred to has been made applicable to the case in hand. On the other hand, the 17 items of the properties covered under the impugned order are in actual possession and enjoyment of the parties to the suit admittedly and they are enjoying the same and the income derived from the same is being utilised. But, however, whether the income derived from the suit property by themsevles are being shared or not is the question of fact to be gone into and as such, it ought to have been considered by the learned Judge. But, for the purpose of the present application, the same is out of point now. Therefore, I do not propose to say anything about that. Some of the properties, namely five items are standing in the name of the lady members of the family, who are admittedly not the coparceners in accordance with the Hindu Law. As contended by the Bar on behalf of the petitioner, Section 4, Clause 2 of the Benami Transaction (Prohibition) Act is a clear bar and therefore, the impugned order cannot be made applicable to the said properties. But, I am not inclined to countenance the said argument for the reason that it is a matter to be gone into during the appeal and certainly not at this stage. But suffice it for me at this stage to say that the lady members of the joint family though not the coparceners are admittedly the petitioners and to this extent their possession is deemed to be legal and not wrongful. There is no iota of al legations or evidence to show that all the 17 items of the properties covered under the impugned order is being wasted or likely to be squandered by the respective defendants concerned. Therefore, one can safely hold under such circumstances and in the absence of any specific allegation or evidence as contemplated by the case law referred to above, the possession of the said properties by the appellants are quite legal and safe. If at all the respondents herein are aggrieved as contended by the learned Advocate General that the entire income being derived from the said property are being squandered, the court may be approached to render the accounts or submit the accounts before the court or to deposit the same by properly initiated petitions. But, instead to appoint the joint receivers would clearly amount to depriving the valuable right of possession and title of the respective persons over the 17 items of the properties, which cannot be contended that it is a justifiable one under the law. This Court in very many cases have also held that only in cases where the properties are under peril or danger or squandered or wasted away, the custody of the same from the person however it may be lawful, pending litigation can be taken away, if not, it cannot be done. It is rather unfortunate the learned trial Judge overlooked all the abovesaid facts while passing the impugned order this regard. However, since the same is being challenged in the appeal, I do not want to express any of my opinion by a single word at this juncture, which may tilt the balance on either side. Therefore, considering the above circumstances and the question of law and the contentions raised by the Bar on behalf of the parties, I am of the firm view that the interim stay of operation of the impugned order granted by this Court already is to be made absolute till the disposal of the C.M.A. and this would meet the ends of justice in furtherance of the Doctrine that justice is not only to be done but also it must be seen to be done to the litigant parties concerned.
9. In the result, the interim stay granted by this Court C.M.P. No. 10175 of 1992 on 4.8.1992 is hereby made absolute till the disposal of the C.M. A. No. 621 of 1992. Accordingly, C.M.P. No. 10175 of 1992 is allowed. C.M.P. No. 5305 of 1993 is dismissed. No order as to costs under the circumstances.