JUDGMENT
1. These appeals are against the order of the Subordinate Judge of Tanjore in the matter of appointment of a Receiver in O.S. No. 81 of 1926 on his file. That suit was filed by the plaintiff to declare that he is the reversionary heir of the Kapistalam Estate. The last male owner was one Chandrapakasa Moopannar who died in 1869, leaving a widow who died in 1884. On her death ‘their daughter Seethalakshmi Ammal succeeded. She died on 9th March 1926. Her husband Krishnaswami Mooppannar died on 29th April 1926. On Seethalakshmi Ammal’s death there were three sets of claimants first, the plaintiff, who claims as the son of Seethalakshmi Animal’s daughter; second defendant 1, who claims as the adopted son of Seethadakshmi Animal’s husband; and third, defendants 2 to 5 who claim as dayadis of the last male owner. Defendants 1, 2 and 5 have compromised between themselves and now present a united front to the plaintiff who is suing for a declaration of his title and for the possession of so much of the estate as is not now in his possession.
2. While Seethalakshmi Ammal was alive, the estate was being managed, latterly at least, by a power-of-attorney agent, who is defendant 6, and was largely in the actual possession of lessees the periods of whose leases have yet a considerable time to run. Thus the plaintiff is holding a lease, Ex. E, dated 23rd September 1925, of 50 or 60 velies in Satyamangalam village, current for nine years and defendant 2 holds a lease, Ex. 7, dated 14th October 1922, of 170 or 180 velies, current for ten years. Under Ex. A, a document dated 4th February 1926, defendant 2 is prima facie entitled to the rents of practically the whole estate. This Ex. A was given by the power-of-attorney agent, while Seethalakshmi Ammal was still alive, and it must for purposes of these appeals be accepted as made under authority and, therefore, valid. Criticizm such as the Subordinate Judge makes on its terms appears to us here beside the point.
3. The plaintiff applied to the lower Court for the appointment of a Receiver to take over the management and collection of rents of the estate, to look after the charities, to lease out the, properties on proper rents, to recover moveables secreted by the defendants and prevent waste and injury. The lower Court, after an elaborate enquiry, has, in a lengthy order directed the appointment of a Receiver who shall take over the management of the estate; collect rents from the lessees, take possession of such of the estate as is not in possession of lessees, conduct charities and preserve the property. Against this order the defendants have come up in appeal.
4. We are of opinion that the lower Court has not viewed the matter from the right point of view. The essential point for it to consider was whether the plaintiff has shown prima facie that he has a strong case and a good title to the property. Instead of considering this it puts that altogether aside with the remark that the plaintiff’s title is a matter for decision in the suit. Such a comment might be made in every application for a Receiver, and, if endorsed, would render the appointment of a Receiver almost automatic. On the other hand, the learned Judge discusses the strength and the weakness of defendant’s case, but refuses to discuss the case of defendants 2 and 5 and nevertheless finally concludes (para 21) that
this is not a case where it can be said at this stage and on the present materials that any party has established a clear and strong prima facie title which is beyond dispute.
5. Such being his conclusion, namely, that the plaintiff has not established a clear and strong prima facie title, the correct order for him was to refuse his application. But, influenced by what he regards as sinister conduct on the part of defendants 2 and 5 with reference to Ex. A and the idea that there has been a scramble for possession after the death of the lady, the learned Judge has seen fit to appoint a Receiver. It did not appear in the course of arguments before us that the possession of any lessee has been disturbed. What has been the subject of scramble, if the word may be used, was the right to collect the rents from the lessees. No one is at present threatening to oust the plaintiff from his ‘leasehold of 50 velies, and that is the whole extent to which, assuming him to be the reversionary heir, he is entitled to present possession. As regards the scramble for the right to collect the rents: as the defendant-claimants have settled their differences and are in possession of a major portion of the estate, the only scramble is by the plaintiff, and the question which the lower Court -should have addressed itself to was, as we have said: Has the plaintiff such a strong prima facie case that the Court was justified in directing that the existing state of things at the death of the lady -should be interfered with?
6. The plaintiff can succeed only if he is able to defeat both sets of defendants. He must first of all establish that there was no adoption of defendant 1, or that adoption was under such conditions that defendant 1 does not succeed to the Kapistalam Estate; and secondly, that defendants 2 to 5 are not dayadies of the last male owner, or that, if they are, he, as daughter’s daughter’s son of the last male owner, has by force of some special custom a title to preference over them. Prima facie the facts are at present against him. As to the first point: defendant 1’s adoption has been held good in a suit by him against Seethalakshmi Ammal both in the original Court and on appeal: see Exs. I (a) and I (b). If there are any circumstances connected with the adoption which would preclude the defendant from succeeding to Seethalakshmi Ammal, these have still to be proved. As to the second point: the early documents, not so ‘far discredited-see Ex 14 of the year 1831, which the Judge wrongly ascribes to the year 1868, Ex. 15 of 1868 and Ex. 17, a judgment of the High Court-indicate that the genealogy put forward by these defendants is correct, and its incorrectness has still to be proved by the plaintiff. Plaintiff has so far produced no document to negative the correctness of this genealogy.
7. He has also waited a very considerable ‘time before making his ‘move. The suit was filed on 9th September 1926, six months after the death of Seethalakshmi Ammal. In the interval there were curator proceedings in the District Court in which the plaintiff took no open part and certainly did not there press openly any claim on the estate. That petition was disposed of on 30th March 1926. The present contention of a special custom was not put forward in any shape or form in the curator proceedings and only appears for the first time in his present plaint. He has still to go the whole way in proof of his case and prima facie at present it does not appear to be a strong one. We are clear, in these circumstances, that the lower Court was not justified in appointing a Receiver at the present stage. If subsequently the plaintiff makes out a strong case or the defendants fall out amongst themselves,, it may be necessary to reconsider the matter. We reverse the order of the lower Court and dismiss the plaintiff’s petition with costs to the defendants in both Courts. Appellants in each appeal will have their costs here from plaintiff.
