1. This is an appeal from an order of the Judge of the Assamvalley Districts appointing a receiver of a large property which is the subjectof a pending suit. The plaintiff in this suit; is a widow of the Rajah ofBijni, who died on the 9th of March 1883, and she claims the entire estate ofthe Rajah on the grounds that the defendant, who claims to be the elder widow,was not married to the Rajah, and that, even if she was married, she hasforfeited her rights by unchastity both before and after the Rajahs death. Shefurther, in the alternative, claims a moiety of the estate as co-heiress withthe defendant, or, should the defendants exclusive title be established, thata suitable sum for her maintenance should be fixed and made a charge on theproperty. The appointment of a receiver is asked for on the ground that thedefendant has grossly mismanaged the property, and had wasted, and wouldcontinue to waste, large sums of money. The defendant contends that she is, andhas been since the Rajahs death, in exclusive possession of all his propertyunder a title admitted on more than one occasion by the plaintiff herself; thatshe was legally married to the Rajah, and as elder widow is his sole heiress,the estate being an impartible raj to which the ordinary rules of the Hindu lawof succession are inapplicable. It is further generally contended that theclaim is not made bona fide, and that it has no substantial foundation.

2. Now we must regard the defendant as in exclusivepossession of the property claimed. She is the sole registered proprietor; andit is clear that ever since the Rajahs death, which occurred more than fouryears prior to the institution of the suit she has put for ward the title whichshe now asserts. It is admitted in the plaint that the defendant was allowed toassume the entire management, though the admission is qualified by theassertion that the management was understood to be on the plaintiffs behalf.With this and with the allegations of fraud and immorality we shall dealhereafter; it is enough now to say that on the facts before us we must considerthat possession followed the management, and if the possession has beendisturbed, the disturbance has been by the plaintiff.

3. Both the Deputy Commissioner and the Judge seem to thinkthat it is sufficient to justify the appointment of a receiver if theallegations of the plaintiff show a sufficient cause of action, and if themanagement of the estate has been and is such as to render the appointmentexpedient. Section 503 of the Civil Procedure Code certainly gives a widediscretion to the Court. It empowers the Court to appoint a receiver wheneverit appears to be necessary for the realization, preservation, or better custodyor management of any property the subject of a suit. This power is not howevergreater than that exercised by the Courts in England ; and it must, we think,be exercised on the same principle, that is to say, with a sound discretion ona view of the whole circumstances of the case, not merely the circumstanceswhich might make the appointment expedient for the protection of the property,but all the circumstances connected with the right which is asserted and has tobe established. If a right was asserted to property in the possession of thedefendant claiming to hold under a legal title, the Courts did not interfere byappointing a receiver unless a very strong case was made out. The principles towhich we refer are stated in Kerr on Receivers 2nd Ed., p, 3 by Lord Cranworthin Owen v. Homan 4 H.L.C. 997 and in Clayton v. The Attorney-General CoopersCases in Chancery vol. I p. 97. We see no ground for the contention that thoseprinciples are not applicable in this country. They were adopted to prevent awrong to the defendant, which might equally be done here if they were not followed.It was indeed conceded that the plaintiff must at least show that her claim ishonest and well founded, and if she must show that much, it is a mere questionof degree as to how far she must make out her case.

4. Nor is there anything in Mr. Boses argument that theprinciples referred to have been relaxed since the passing of the JudicatureAct of 1873. It is only necessary to refer to the judgment of Brett, L.J., inNorth London Railway Co. v. Great Northern Railway Co. L.R. 11 Q.B.D. 30. andthe dicta of learned Judges in other cases therein referred to. Those werecases of injunctions; but the words "just or convenient," whichlimited the power of the Court, applied also to receivers.

5. It is necessary, therefore, to consider the circumstancesunder which the claim is made, the evidence by which it is supported for thepurpose of this application, and the conduct of the parties. Our observationsare of course based on the limited materials before us, and can have no effecton the ultimate decision. The plaintiff has filed her own affidavit and . thatof two other persons; the defendant has filed her affidavit and that of sevenother persons. All the material allegations of the plaintiff are contradictedin one or other of the defendants affidavits. Now the plaintiffs casecontains grave charges against the defendant of immorality and of fraud. So faras she denies the dafendants title to any portion of the property her caseshortly put is this, that the defendant was the mistress and not the wife ofthe Rajah ; that she was enceinte at the time of her alleged marriage ; that ineither character she was so unfaithful to him that the Rajah, who was extremelyfond of her, was driven to suicide ; that she continued to misconduct herselfafter the Rajahs death till her conduct became a scandal; and that, whileleading the plaintiff to believe that she was managing for her, she set up atitle of her own and supported it by forgery and personation.

6. Khagesseri is the only person who speaks to any factdenoting the unchastely of the defendant; and she gives neither time nor place.Putting aside the denials of what she says, it is extremely difficult toreconcile the conduct of the plaintiff with the truth of any one of herallegations. The defendants affidavits show that a marriage ceremony wasperformed according to the custom of the family, and, whatever the decisionmaybe as to the validity of the marriage, there seems hardly room for doubt thatthe defendant was recognized as the Rashs wife and widow. The plaintiff was 19years old when the Rajah died ; and for some eight years previous to that sheand the defendant had lived with him. The plaintiff does not say when shebecame aware of the defendants position as mistress and of her immoralcharacter; but the position must have been well-known, if what Khagesseri saysis true, that the Rajah wanted to marry the defendant, but was dissuaded by hisrelatives, friends an! priests. Was the plaintiff ignorant of this during hereight years of married life, or would she have been allowed to remain inignorance after the Rijahs death Again, the suicide of the Rajah inconsequence of the defendants infidelity, if that was really supposed to bethe cause, must have created a great sensation in the family ; and it wouldhardly have added to the popularity or strengthened the position of a woman whowas not his wife. Yet we find the plaintiff an admitted wife, continuing tolive on friendly terms with this woman for about three years, and allowing herto manage the whole estate as if she occupied a position at least equal to herown. It is said this management was purely permissive; but it was a management,which did not find favour either with the ryots or the authorities. Accordingto Puma Chunder Bandopadhya, Jibon Ram Phookun, her agent in the management andher alleged paramour, was so unpopular and his intercourse with the defendantso scandalous and notorious that even the ryots combined to remonstrate and askfor his dismissal. Failing to secure this, it is said they set up one ChunderNarain as a claimant to the estate. In the struggle for possession which thenensued the whole estate was thrown into disorder, and crimes of everydescription, we are told, were committed , yet the plaintiff remains quiet; shenever thinks of withdrawing her permission. No one ever thought of going to herfor redress, and no one ever then thought of setting up her title. The districtauthorities also were very anxious to get rid of Jibon Ram Phookun, but theynever asked the plaintiff to interfere. Like the ryots, they appealed to thedefendant, and they appealed in vain. In short, up to the 24th August 1886,when the case under Section 145 of the Criminal Procedure Code was decided bythe Deputy Commissioner, the plaintiffs name (except as far as it appears inthat case) never seems to have been mentioned in connection with this property.On the 27th August 1886 the plaintiff says she left the defendant owing to herill-treatment and scandalous behaviour. Her eyes then appear to have beenopened ; and the trouble with Chunder Narain having been overcome, she set up aclaim, which gave rise to fresh trouble and kept alive the contest with thedisaffected tenants. We should add that in the case under Section 145 the twoEanees were described to be of the first party, and Chunder Narain of thesecond, and the case was decided in favour of the Eanees. The defendant doesnot seem to have objected to the inclusion of the plaintiffs name until afterthe case had been decided, and until after the plaintiff had set up an adversetitle; but she distinctly alleged in her written statement that she alone wasentitled to the property, and it does not appear that the plaintiff took anypart in the conduct of the case.

7. Such was the plaintiffs conduct. We will now turn to thedefendants. Within six days of the Rajahs death she produced for registrationan anumatipatra said to have been executed by the Rajah ten days before be died.By this document he recognizes the defendant as his wife, and gives her powerto adopt, postponing the plaintiffs power of adoption until after the death ofthe defendant.

8. The plaintiff is said to have been present when thisdocument was presented for registration, and to have signed her name as aconsenting party. The registration was before the Registrar of Calcutta, whowent to Rajahs house, where the plaintiff and defendant were then residing.Under that Act the Registrar had to satisfy himself that the Rajah had executedthe deed ; he certifies that he did so ; and it was registered. We allude tothis fact merely as showing that it was not a mere formal registration. Of thisdeed the plaintiff makes no mention ; but Chunder Nath Chowdhry swears in hisaffidavit that she signed it in his presence, and the execution by the Rajah isalso sworn to by another man. On the 10th of August 1883 the defendant got hername registered as sole proprietor of the Rajahs estates. A consent petitionis said to have been filed under a mukhtearnamah executed by the plaintiff, andthis petition admits the exclusive title of the defendant. Again, on the 27thNovember 1884, the defendant took out a certificate under Act XXVII of 1860,and the plaintiff is said to have put in a consent petition under a vakalatnama. AH these documents are alleged to be forgeries, but there is evidence beforeus that they were signed by her. We are not going to express, any opinion as towhich version is true ; but we shall 1133 certainly not assume that they areforgeries. They at all events show that the defendant has openly from the veryfirst asserted her exclusive title to the property, and that she was therecognized owner is said in the plaint ( paragraph 8c) that " the defendantproclaimed in the zemindaries that the plaintiff was willing that she should belooked upon as the sole heiress of the Rajah." There is no proof whateverof the "looking-upon" part of the allegation, and the defendant neverseems to have pretended that she was collecting rent on account of any one butherself.

9. It is argued that, even admitting the defendant to be thewidow of the Rajah, she is only entitled to joint possession with theplaintiff, or to a moiety of the estate ; that it is for the defendant to provethe family custom which is alleged to exist; and that the title of theplaintiff as an admitted widow of the Rajah is strong enough in itself tojustify the appointment of a receiver. As to this, we shall merely say that thedefendants affidavits show grounds for believing that such a custom exists,and the affidavits for the plaintiff disclose no single instance in which theproperty has devolved on more than one heir. Besides this, the circumstances towhich we have already alluded support the defendants contention. The claim formaintenance furnishes no ground for the appointment of a receiver, and it isnot shown that suitable maintenance has ever been refused. The plaintiff doesnot rely on her reversionary title, and even if she did, no case of wastesufficient to justify the appointment has been made.

10. We think, therefore, that, apart altogether from the wayin which this property has been and is being managed, no case to justify theappointment of a receiver has been made good. In support of the charge ofunchastity there is no single piece of credible evidence, and no one ever seemsto have questioned the defendants position as widow of the Rajah until thisclaim was brought forward under circumstances not altogether free from suspicion.We should be sorry on the materials before us to lend any colour to theaccusations of unchastity and fraud by taking the property out of thedefendants possession.

11. It is necessary to say a few words on the other part ofthe case, viz., the way in which the property has been managed. Both the DeputyCommissioner and the Judge say that Jibon Ram Phukoon was a very inexperiencedparson, and quite incompetent to have charge of such a large property, and theyattribute to his mismanagement the disorder and crimes which have prevailed inthe estate for some years past. We are not going to say a word in support ofJibon Ram Phukoons capabilities ; he may be incompetent, and it may be verydesirable to get a stronger and more experienced man ; but there is nothing onthe record to justify the inference that it was owing to his unpopularity ormismanagement that Chunder Narain came or was put forward as a claimant, thoughit may well be that he was not strong enough to put down that claim, and thathis unpopularity may have added to the number of ryots who took ChunderNarains side. It is easy to conceive what follows when one person tries tooust another as Chunder Narain is held to have done. The ryots were got overand took different sides; the rents were not collected to the extent they oughtto be ; and there is a constant struggle accompanied possibly with acts ofviolence and dimes such as those referred to by the Judge. But it was hardlyreasonable to bold the person who is trying to maintain possession answerablefor all this. It is impossible to say that the disorder would have continued,or that the rents, would not have been collected after Chunder Narains claimhad been disposed of if the plaintiff had not then come forward as a claimantand endeavoured to get possession. We consider that she is to a great extentresponsible for the disorder of which she complains, and she is not, we think,in a position now to ask the Court to appoint a receiver while she isprosecuting her claim in the civil suit.

12. We do not think it necessary to consider in detail thecharges of mismanagement which are set out in the affidavit of Poornoo ChunderBundopadhya. It is clear that the defendant has not been able to collect alarge portion of the rent and that she has expended large sums of money. Theexpenditure certainly appears to have been unnecessarily great; but this, andthe inability to collect the rent, is largely due to the adverse claim set upfirst by Chunder Narain, and afterwards by the plaintiff.

13. We think the order for a receiver ought not to have beenmade, and we set it aside and decree this appeal. The defendant is entitled tocosts.

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Abhoyeswari Dabi vs.Sidheswari Dabi (04.06.1888 - CALHC)