Omerto Nauth Mitter vs Poreshnath Mookerjee And Ors. on 17 March, 1890

Calcutta High Court
Omerto Nauth Mitter vs Poreshnath Mookerjee And Ors. on 17 March, 1890
Equivalent citations: (1890) ILR 17 Cal 614
Bench: W C Kt., Pigot


W. Comer Pertheram. Kt., C.J. and Pigot, JJ.

1. This is an appeal by five out of a numerous body of defendants in an action brought to enforce a charge upon certain estates belonging to all the defendants jointly, and which the, plaintiff contends was created by a deed dated 13th May 1886, executed by Mr. Broughton in the character of receiver, he having been appointed receiver of all the estates in question by an order of this Court dated 18th March 1886, made in two consolidated suits which were then pending between the various defendants to the present suit, for the partition of such estates, and who bad by another order of this Court, dated 6th May 1886, been authorised to raise the sum of Rs. 50,000 on the security of the estates which had been so placed in his hands for the purpose of paying the putni and mourasi rents which had fallen due on 1st May 1886: Neither of the present appellants was seeking partition in either of the two consolidated suits, and the applications upon which the orders in question were made were resisted by them and were made adversely to them notwithstanding such resistance. The facts are not in dispute, and the questions which have been argued before us on this appeal are- (1) whether the Court has jurisdiction to place the whole of a joint estate out of which a plaintiff seeks to have his share partitioned in the hands of a receiver; and (2) whether it has any jurisdiction to order that a receiver so appointed shall be at liberty to raise money on the security of the whole of such joint estate. It is clear that if the Court had jurisdiction to make the orders, no question can be raised in this suit as to their correctness, they having been made by a Court of competent jurisdiction in the course of other proceedings, and being now existing orders of such Court.

2. The first question mainly depends on the meaning to be given to the words” property the subject of a suit” in Section 503 of the Code of Civil Procedure, when the suit is one for the partition of a joint estate. Mr. Phillips for the appellants has contended that the sole purpose of such a suit being to give the plaintiff possession of a divided share, and for that purpose only to divide the joint property, the only property which is the subject of the suit is the plaintiff’s share, whether joint or divided, and that the Court has no jurisdiction to place anything more than that share in the hands of a receiver. For the plaintiff it was contended that the property in suit is the whole joint estate, inasmuch as until it has been partitioned the plaintiff has an interest in every portion of it. I think that the contention of the plaintiff must prevail, as not only is he interested in every portion of the joint property before it is partitioned, but by the partition the title of each of the joint owners is changed, the decree being carried out by mutual conveyances between the joint owners of the interest of the others in the several shares allotted to each. This view appears to be in accordance with the practice of this Court, as it seems that receivers of the entire joint estate have been appointed in partition suits, and is also in accordance with the practice of the Court of Chancery in England acting under the Judicature Act, 1873, Section 25, Sub-section 8-see Porter v. Lopes L.R. 7 Ch. D. 358: and with the practice of that Court before the passing of that Act, Searle v. Smales 3 W.R. Eng. 437, even where there had been no exclusion.

3. The second question depends on the meaning of Section 503, Sub-section (d). By that sub-section the Court has power to grant to a receiver such powers for the protection, preservation, and improvement of the property as the owner himself has. It is in my opinion clear that when it is decided that the property in suit means the entire joint property, it follows that the words “the owner” at the end of the sub-section must mean the whole body of owners to whom the joint estate belongs; and what we have to decide is, whether a power to raise money on the property itself may be necessary for its own preservation. In considering this question, we must have regard to the conditions under which estates are held in this country, one of which is that they are liable to be sold if the rents and revenue due upon them are not paid; and when that fact is appreciated, it is apparent that the power to take the estate out of the hands of the owners and to place it in the hands of a receiver with power to do what is necessary for its protection must include a power to raise money to pay rent or revenue when it is necessary to do so; as to hold otherwise would be to hold that a receiver appointed to protect the estate could not interfere to prevent its being lost to the parties interested, although his appointment put it out of their power to protect it themselves. For these reasons I think that this suit was properly decreed, and this appeal must be dismissed with costs.

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