JUDGMENT
K. Gnanaprakasam, J.
1. The respondent/defendants have filed the civil miscellaneous appeal against the order dated 30.4.1998 passed by the City Civil Court (III Additional Judge) Chennai in I.A.No. 5093 of 1997 in O.S.No. 1682 of 1997.
2. For the purpose of convenience, the parties will be referred to as they were arrayed in the original suit.
3. The plaintiffs filed the suit for partition and allotment of one fourth share in both the items of the suit properties. The contention of the plaintiff in the suit is that both the items of properties are ancestral joint family properties consisting of his father Late Velaytham Pillai and the plaintiff and the defendants herein. Velaytham Pillai died on 30.8.1996 and his wife Alamelu Animal pre-deceased him. The plaintiffs and the defendants 2 and 3 are residing in different portion in the first item of the property and the first defendant viz., Lakshmi is residing in a portion in the second item of the property. After funeral ceremonies of late Velaytham Pillai, the plaintiff and the defendants sat together for amicable partition. On the basis of the amicable partition, the third defendant collected the August month rent from the tenants and spent it for death ceremony functions and, agreed to collect the rent to the first defendant from September, 1996 onwards. Accordingly, the third defendant collected the rent for the month of September and October, 1996 and handed over to the respondents and that thereafter stopped doing so. Hence, the plaintiff filed the suit and also the application for the appointment of advocate receiver.
4. The defendants in the suit who are the respondents in the petition resisted the petition filed by the plaintiff seeking appointment of receiver. The first defendant/respondent viz., Lakshmi filed a counter wherein she has stated that her father left a Will dated 13.6.1994, by which she is entitled to half share in the second item of the property. Her father also left another Will of even dated by which, the defendants 2 and 3 are entitled to first item of the property. The plaintiff is entitled to half share in the second item of the property. The third respondent viz., Kannan also filed a counter almost making the very same contentions raised by the first defendant Lakshmi.
5. The trial court taken up the receiver application on file in I.A.No. 5093 of 1997 and by an order dated 30.4.1998 allowed the application. As against the same, the defendants/respondents have filed the present appeal.
6. The appellants who are respondents/defendants before the trial court have submitted that it is neither justified nor convenient to appoint a receiver to collect rent and deposit the same into the court. They further submitted that the court erred in appointing the third party receiver Which would be a liability and encumbrance on the estate of the deceased Velaytham Pillai.
7. The respondents/plaintiff has advanced his argument justifying and in support of the order passed by the court below.
8. I have carefully considered the rival submissions of both the appellants and also the respondent.
9. The appellants, who are the respondents/defendants before the trial court relied upon two Wills dated 13.6.1994 said to have executed by their Father Velaytham Pillai. On the contrary, the respondent plaintiff contended that Velaytham Pillai died intestate and further these properties are joint family properties and Late Velaytham Pillai had no right to execute a Will in respect of joint family properties.
10. As the respondent/plaintiff has filed the suit for partition, the respondents/defendants contended that there is a Will, it is too early to decide at this stage whether there is any Will left by Velaytham Pillai, or he died intestate? But, however, we have to consider whether the court below was justified in appointing a third party receiver to manage the properties.
11. Order 40, Rule 1 of C.P.C. speaks about the appointment of receivers which states,
where it appears to the court to be just and convenient, the court may by order–
(a) appoint a receiver of any property, whether before or after decree.
(b)….
(c)….
(d)….
The court should take into consideration the just and convenient. In the instant, case, admittedly, the plaintiff and the defendants 2 and 3 are residing in Item 1 of the property. The first defendant viz., Lakshmi is residing in Item 2 of the property. The defendants would submit that as per the Will said to have been left by Velaytham Pillai the plaintiff is entitled to half share in the second item of the property and the first defendant is entitled to half share. The defendants 2 and 3 are entitled to first item of the property.
12. The plaintiff himself has furnished the names of the tenants in both the items of the properties and also the rents payable by them, if the plaintiff succeeds in the suit, he would be entitled to one fourth share in both the items of the properties and even otherwise, he would be entitled to half share in the second item of the properties as admitted by the defendants. In the said circumstances, it is not ‘just’ and ‘convenient’ to appoint a third party receiver which would unnecessarily interfere with the rights of the lawful owners to the suit properties.
13. In fact, the term “just” and “convenient” was considered as early as 1955 itself by our court in the case of T. Krishnaswamy Chetty v. C. Thangavelu Chetty and Ors. , wherein it is stated,
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 in extreme cases and in circumstances where the interest of the person seeking the appointment of a receiver is exposed to manifest peril.
The court also formulated five requirements for the appointment of receiver. The plaintiff has neither established the five requirements nor made out a prima facie case that his interest in the property would be exposed to manifest peril. These aspects were not taken into consideration by the court below before appointing the third party receiver and hence, I feel that the said order has got to be set aside and the same is hereby set aside.
14. But, however, in the interest of parties and also in the interest of justice, and by taking into consideration the admitted facts of the case that the plaintiff is entitled to half share in item 2 of the property as contended by the defendants and that the plaintiff is entitled to one fourth share in both the items of the properties, I feel that the parties can be appointed as receivers in the manner set out hereunder.
15. As it has been admitted by the defendants that the plaintiff is entitled to half share in item 2 of the suit property, the plaintiff is hereby appointed as party receiver in respect of item 2 of the suit property. He shall manage and maintain item 2 of the suit property and find out the actual rent payable by the tenants and collect the rents from February, 1999 onwards and to pay electricity charges, water tax, municipal tax and other taxes payable in any, and maintain proper accounts and vouchers for collection of rents and expenditures towards maintenance of the said property and shall submit accounts to the trial court once in two months, and deposit the rent, after defraying the expenses.
16. In respect of item 1 of the suit property, the second defendant is appointed as party receiver to manage and maintain item 1 of the suit property and to find out the actual rent payable by the tenants and collect rents from February, 1999 onwards and to pay electricity charges, water taxes, municipal tax and other taxes payable if any and maintain proper accounts and vouchers for collection of rents and expenditures towards maintenance of the said property and shall submit accounts to the trial court once in two months and deposit the rent, after defraying the expenses.
17. The party receiver are also empowered with the powers conferred under Order 40, C.P.C.
18. The party receivers can also apply for any further direction, if it is necessary, in the trial court as and when it becomes necessary.
19. The plaintiff and the defendants shall continue to reside in the respective portions in which they have been residing hitherto till the disposal of the suit.
20. In the result, the present appeal is allowed and the third party receiver appointed by the trial court is hereby set aside the party receivers appointed in this appeal shall carry out their duties on and from the date of this order. But, However, there will be no order as to costs.
