1. These two appeals arise out of two orders passed by the learned Subordinate Judge of Muzaffarpur in a suit for partition, (1) dated 7th January 1947, allowing, the plaintiffs application for the appointment of a receiver of the properties sought to be partitioned and (2) dated 10th January 1947, appointing a pleader of his Court as the receiver. Defendant 1 is the appellant in each case.



2. The facts leading up to these appeals may shortly be stated as folows: Prom the plaint it appears that the material allegations are that plaintiff 1, Rajeshwar Prasad Narain Sinha, defendant 1, Bhubaneshwar Prasad Naratn Sinha, defendant 2 Rai Bahadur Maheshwar Prasad Narain Sinha, and Sir Channdreshwar Prasad Narain Sinha (not a party to the suit) are four brothers, and that the last named has passed out of the family as a result of his adoption in cuttak form. The three brothers, namely, plaintiff 1 and the first two defendants, constituted a joint Hindu Mitakshara family After their fathers death in 191

8. defendant 2 acted as kar a of the joint family. But from November 1935, defendant 1 has been managing the affairs of the joint family under a power of attorney executed in his favour by plaintiff 1 and defendant 2.



3. The plaintiffs also alleged that, for some time past, feelings amongst the brothers have been "anything but desirable," and that the plaintiffs suspected foul play on the part of defendant

1. In para 5 of the plaint, there is a vague allegation abeut defendant 1 having exercised undue influence upon defendant 2, and, as a result thereof, created certain transactions in respect of the joint family properties, which were "fraudulent, inoperative, void and illegal" and "never seriously given effect to." It was said during the arguments on behalf of the appellant that these vague allegations in the plaint were really directed to the transaction whereby defendant 2, by virtue of a registered deed dated 2nd December 1944, took a certain portion of the properties as his one-third share, and separated from the rest of the family. It was further alleged on behalf of defendant 1 that plaintiff 1 and defendant 2 are in collusion and dishonestly are making attempts to get rid of that transaction. Nothing more need be said at this stage of the litigation as to the truth or otherwise of these counter allegations of fraud and dishonesty. On the statements in the plaint, it is clear that the feelings between plaintiff 1 and defendant 2 on the one hand and defendant 1 on the other are very strained, as will appear presently from the course events took on the eve of the institution of the suit for partition as also soon after the institution of the suit on 12th November 1946, and the application by the plaintiffs for the appointment of a receiver on 13th December 194

6. It is also clear that, since after the execution of the general power of attorney aforesaid in favour of defendant 1, he has been the managing member of the family, though not the eldest amongst the brothers. His power of management on behalf of all the brothers continued until the transaction aforesaid of 2nd December 1944, and after the alleged separation of defendant 2 from the rest of the family tit that time until 1st June 1946, when plaintiff 1 got a notice published in the "Indian Nation" to the effect that he had withdrawn his power of attorney from defendant

1. On 6th August 1946, plaintiff 1, after having withdrawn the power of attorney from defendant 1, gave a general power of attorney to defendant 2.

4. It appears further that defendant 2, being armed with a power in his favour from plaintiff 1 made an attempt forcibly to occupy certain portions of the residential houses in Birsinghpur, which is the headquarters of the family. The result was a proceeding under Section 144, Criminal Procedure Code drawn up by the Sub-Divisional Magistrate in order to maintain peace. We were informed that the proceedings ended in favour of defendant 1 in so far as certain restraint orders were passed against defendant 2 at the end of October 194

6. After the filing of the suit for partition on 12th November 1946, on the same day an application was filed on behalf of the plaintiffs supported by au affidavit, praying for the issue of a commission for making a complete inventory of the movables of the estate, as it was apprehended that defendant 1, on coming to know of the institution of the suit, was making arrangements for their removal. The Court directed notice of the application to be issued to the effect that the Court had appointed two commissioners to make an inventory of the movables on the plaintiffs application, and that the defendant should give facilities to the commissioners in preparing the inventory. The notices were sent per special peon, and the preparation of the inventory began immediately. As defendant 1 was reported to be creating difficulties in the way of the commissioners, police help was requisitioned; but, on 16th November he appeared before the commissioners and informed them that he had no objection to the inventory being made, and that his servants, during his absence, had made objections to the entry of the commissioners into the inner apartments of the houses occupied by defendant 1 and his family. The making of the inventory was completed, and a report submitted to the Court on 18th November and on 20th November, defendant 1s explanation to the Court, on being called upon by it to show cause why he should not be dealt with for disobedience of the Courts orders, was accepted. It appears that defendant 1 took umbrage at the attempt made by plaintiff 1 and defendant 2 in having a complete inventory made of the movables. It goes without saying that the family is a very respectable one, and it appears that defendant 1 thought that the prestige of the family had been lowered and his. position compromised by having court officers and court peons, more or less, to search for movables and things said to have been concealed by, or at the instance of, defendant

1. One may sympathise with the feelings of defendant 1 in the predicament in which he found himself; but, all the same, the Court could not look upon his attempt, or the attempts made by his servants, to thwart the execution of the process of the Court. Fortunately for defendant 1, he was brought to a more reasonable frame of mind, and he informed the Court that he had no intention of disobeying the orders of the Court. One thing is absolutely dear that these happenings have all the more embittered the feelings between the brothers, and we reserved judgment only with a view to giving the parties sufficient time to make up their differences by making a reference of all their disputes to the arbitration of some respectable and responsible persons suggested by counsel for the parties, who have done their very best to bring about a happy and speedy conclusion of this very unhappy quarrel between members of a respectable family. But all their efforts have proved in vain, and the Court was informed only on 10th March that the suggestions for a compromise made by the Court and the efforts of counsel for the parties had proved unavailing.

5. Hence, it is necessary to decide the question whether it is a fit case in which a receiver should be appointed and a stranger to the family placed in possession of the family properties, including zamindari interests and extensive culturable zerait and bakasht lands, said to be about 700 bighas in area. The Court below by the two orders appealed against has decided that it is a fit case in which a receiver should be appointed, and that none of the parties to this litigation should be the sole receiver, or one of the receivers, to be appointed by the Court.



6. In the plaint, the plaintiffs claimed partition of their one third share of the family assets, a list of which was given in the schedules attached to the plaint. There is also a claim for rendition of accounts from defendant

1. The cause of action for the suit was alleged to have arisen on 9-9-1946, when the last demand for partition was refused. In the plaint, there are no specific allegations of waste or danger to the family assets or that the plaintiffs had been excluded from the enjoyment of the joint family assets. In the application made on 13-12-1946, for the appointment of a receiver, absolutely vague allegations of misappropriation, mismanagement and waste have been made, but no particulars given. It was also stated that in the course of the criminal proceedings under Section 144, Criminal P.C., referred to above, defendant 1 claimed exclusive possession over all the properties appertaining to the estate of the family It was further stated that there are large areas of kasht and bakasht lards in khas cultivation, out of which about 200 bighas were under sugarcane and some area under chilli cultivation. Finally, it was asserted that a substantial portion of valuable bakasht lands had been nominally settled by defendant 1 in the name of his creatures, and that a large number of valuable trees had been cut down and sold away. These allegations have not been sought to be proved in the Court below and the learned Subordinate Judge has not recorded any finding that even a prima facie case had been made out so far as the allegations as regards waste and mismanagement made in the petition are concerned. Defendant 1, in answer to the plaintiffs application for appointment of a receiver, specifically denied that he had done any acts which could be said to amount to waste or mismanagement. As regards the allegations that bakasht lands had been settled, as alleged by the plaintiffs, dishonestly and collusively, defendant 1 characterised them as "mischievous lies." It was further alleged by defendant I that hooliganism had been started at Birsinghpur at the instance of the plaintiff and defendant 2, with the result that criminal cases cropped up, and proceedings under Section 144, Criminal P.C., were instituted, as a result of which the plaintiff and defendant 2 and their supporters were restrained from doing such acts as would lead to the breach of the peace. Defendant 1 also claimed that he had been managing the estate and carrying on cultivation on a large scale in a scientific manner. He denied the suggestion that he was claiming exclusive possession in the sense that the plaintiffs had been ousted. He admitted the plaintiffs claim for partition, and stated that the plaintiffs had already started separate collection of rent from the tenants. He further stated that whatever sugarcane had been grown will be cut and supplied to the sugar mills, a proper account of which will be maintained in the usual course of business. He claimed that be was in possession of the entre family assets as the managing member, and that his possession should not be interfered with during the pendency of the suit. He gave an estimate of the produce of paddy and chillies, which, on the face of it, is a grogs under-statement. He further alleged that most of the paddy had been looted by the men of the plaintiffs and defendant

2. He ended by submitting that this was not a fit case for appointment of a receiver, and that, if the Court came to the conclusion that there should be a receiver, he should be appointed such a receiver.

7. This case has to be determined on the footing that there is no specific allegation of waste or mismanagement on the part of defendant 1, and that no prima facie case has been made out in support of the vague allegations in the plaint, or in the application for appointment of a receiver, that defendant 1 has been guilty, or may reasonably be suspected, of having committed acts of waste or mismanagement or any fraudulent acts which would justify the order for the appointment of a receiver. As already indicated, the lower Court also has not recorded any, such finding. We have heard counsel at great length on behalf of all the parties concerned, and we have come to the conclusion that there is no justification in the record for making any aspersions against the conduct of defendant 1 in relation to his management of the properties until the date of the institution of the suit. It is also clear that defendant 2 has been instrumental in embittering the feelings between the parties all the more as a result of his ill-advised move to take forcible possession of such portions of the family properties and houses as he would like to do in assertion, however bona fide, of the plain, tiffs right, or of his own right, to these properties. His ill-advised acts aforesaid led to the public authorities deputing a military force to preserve public peace and to give protection to defendant 1 who was apprehensive of danger to his life and property. For creating such a situation, the plaintiffs and defendant 2 have to thank themselves, Defendant 1 was acting all the time in defence of himself and his property, and, naturally, the public authorities had to give him such protection as the law entitled him to. But it cannot be said that foe all these incidents defendant 1 is responsible or that they justify his being put out of possession by the appointment of a receiver. If these were the only grounds on which the plaintiffs prayed foe the appointment of a receiver, I would have no hesitation in rejecting the prayer.



8. But there was another ground which was sought to be made out by the plaintiffs for the appointment of a receiver, namely, that they had been ousted from the enjoyment of the joint properties, The Court below same to have proceeded on this basis in making the order for the appointment of a receiver. In my opinion, there is no sufficient foundation for such a contention. Defendant 1 has frankly conceded that the plaintiffs are entitled to their share in the family estate, that he had been managing the properties on their behalf as well, and that he had no intention, past or present, of depriving the plaintiffs of their due share in the joint family assets. Mr. L.K. Jha was at pains to point out on behalf of. the plaintiffs that defendant 1, by his conduct during the criminal cases aforesaid, bas shown that he was claiming exclusive right to possession over the properties, particularly the residentisl houses of the family. But in my opinion, the stand taken by defendant 1 is neither unjust nor in defisnce of law. He was admittedly in possession of the entire joint family properties on his own behalf and on behalf of the other members in his capacity of the managing member. Mr. Jha made some attempt to show that he was not in possession in that capacity, and that he was only in possession as an agent by virtue of the general power of attorney. But this is only an attempt unsuccessful as it is to go back on the allegations in the plaint itself. In the plaint, it is admitted that detendant 1 was the managing member of the family. But defendant 1 has never taken the position which either in fact or in law can be said to amount to an ouster of the other members of the family. He was objecting to and seriously resisting, the attack of defendant 2 upon the property in his attempt to dispossess defendant

1. So long as the property is joint, all the members of the coparcenary are entitled to peaceful possession of every part of the joint property; but no member is entitled to use force with a view to taking exclusive possession of any portion of these properties. Hence if defendant 1 resisted the attempt of defendant 2 on his own behalf, or on behalf of the plaintiffs, to take forcible possession of some portions of the residentisl houses he was doing nothing wrong. Hence, in my opinion, it cannot be said that defendant 1, by his conduct during the course of the criminal proceedings, has deprived himself of the right to be in possession of the joint family properties. It has not been alleged by the plaintiffs that they ever made any demand on defendant I for funds to maintain themselves and their family out of the family assets. Hence, there was no occasion for defendant 1 to accede to such a request. If it had been alleged and substantiated by the plaintiffs that they made any demand for funds from the leading member of the family, which were unreasonably refused, there may have been good reasons for holding that the plaintiffs had male out a case for appointment of a receiver. Hence, the decision of the Calcutta High Courtk in Ramaji Ram v. Saligram 14 C.W.N. 248 that in a suit for partition of joint family properties, when it was proved that an admitted cosharer in the properties was being kept out of possession and all supplies cut off from him, a receiver should be appointed, does not apply to the facts and circumstances of the present case. For the same reasons, the decision of a single Judge of the Lahore High Court in Basant Ram v. Dasondhi Mal AIR 1929 Lahore 497 cannot be prayed in aid of the respondents in this case.



9. On the other hand, Mr. Mahabir Prasad appearing on behalf of the appellant contended on the authority of the decision of Bench of the Calcutta High Court in Suprasanna Roy v. Upendra Narayan AIR 1914 Calcutta 439 of the Bembay High Court in Govind Narain v. Vallabhrao Narayan Rao AIR 1920 Bombay 321, of the Madras High Court in Krishna v. Nani Maruvalamma, AIR 1934 Madras 402 : AIR 1935 Madras 402 : 1935-41-LW 353 and of the Lahore High Court in Firm Raghbir Singh Jaswant Singh v. Naranjan Singh AIR 1923 Lahore 48 that the present case is not a fit one for the appointment of a receiver, inasmuch as the allegations of waste and mismanagement and fraudulent dealings have not been made out, as held by the Court below. The Bombay High Court in the decision referred to above has ruled that generally speaking in a partition suit between the members of a joint family the Court will not appoint a receiver except by consent and especially where the family property consists of land. In such a case, special circumstances have got to be proved in order to obtain an order for the appointment of a receiver; for example, where the Court is satisfied that the property in possession of the opposite party was in danger of being wasted. Those observations have been approved by Beasley, C.J. in Krishna v. Nani Maruvalamma, AIR 1934 Madras 402 : AIR 1935 Madras 402 : 1935-41-LW 353 referred to above. To the same effect are the observations of Campbell J. in the decision of the Lahore High Court reported inFirm Raghbir Singh Jaswant Singh v. Naranjan Singh AIR 1923 Lahore 4

8. In my opinion, the decisions referred to above proceed on sound principles relating to the appointment of a receiver in a suit for partition of joint family properties.



10. During the course of the argument in this case, it became absolutely clear that the parties do not attach much importance to the management of the zamindari property, that is to say, the right to collect rents from tenants, as distinguished from the rights to cultivate the kasht and bakasht lands which are said to be about 700 bighas in area. We, therefore, suggested to plaintiff 1 and the appellant through their respective ad vacates that they might come to some interim arrangement as regards the division of the kasht and bakasht lands which they should cultivate separately pending the decision of the suit itself. We were prepared to ignore the existence of defendant 2 so far as these lands wore concerned, as we had no materials before us to lead to the conclusion that the arrangement whereby he separated from the rest of the family could be successfully attacked. But, as indicated above, counsel for the parties expressed their disappointment at not having been able to bring their respective clients to agree to these suggestions. It is also clear that defendant 1, who has been in possession of these lands by khas cultivation, is now interested in minimising as much as he could the usufruct of these lands, and similarly the plaintiffs are interested in exaggerating the produce of those lands and alleging chat the appellant is misappropriating the produce. It is also clear that the relations between the parties have become so embittered that they are not in a frame of mind 1 to trust each other. The conduct of defendant 1, the appellant, during the preparation of the inventory by the commissioners appointed by the Court showed that he was inclined to secrete property in which all the joint members are intereste. Hence, while deciding that the defendant-appellant should not be put out of possession of the properties which he has been managing so far ever since 1935 as aforesaid, I have come to the conclusion that we must make sufficient provision for safeguarding the interest of the other parties to this dispute, particularly that of the plaintiffs. If the defendants conduct had been absolutely straightforward and above beard throughout, I would have no hesitation in allowing the appeal and setting aside the order of the Court below appeal and a receiver but defendant 1, by his conduct aforesaid, has for feited that confidence to which he was entitled by virtue of his conduct before the institution of the suit. But his conduct soon after the institution of the suit has given sufficient justification to the plaintiffs to urge that they have no more any confidence in the honesty and integrity of defendant

1. In view of these considerations, I would hold that defendant 1 and the Pleader appointed by the Court below should be appointed joint receivers of the property. Defendant 1 will continue in possession and have the cultivation done; but the Reader appointed by the Court below as a receiver will be jointly responsible with him for the management of the property and for keeping correct and proper accounts of the incomings and outgoings of the whole estate, including the kasht and bakasht lands. As nothing has been said about the remuneration of the Pleader appointed by the Court below as a receiver, the orders of the Court below will stand in these respects. I would have been in-clinerd to appoint plaintiff i and defendant IAu the joint receivers, if the feelings between them were not so bitter as they appear to have been recently. In this connection I may cite the instance of the case in Suprasanna Roy v. Upendra Narayan AIR 1914 Calcutta 439 decided by a Division Bench of the Calcutta High Court con sitting of Mookerjee and Beachcroft JJ. who held in circumstances very similar to the present that a party to the litigation may be appointed a receiver in special circumstances. As directed in that case, the share of defendant 1 in the joint estate will remain as security for the due performance of his duties as one of the two joint receivers. The question of security in respect of the Pleader receiver need not be reopened here and the orders passed by the Court below in that respect will stand. Of course, it will be open to the patties to apply to the Court below for such orders as it thinks fit and proper for payment to the respective families of such amounts by way of maintenance find other expenses as the Court below may direct. The two receivers will be under the control and direction of the Court below which will deal with them as if they had been appointed by that Court

1

1. In the result, the appeals are partly allowed, and the orders of the Court below modified to that extent. There will be no order as to costs either in this Court or in the Court below in the matter of the appointment of receiver.

Bennett, J.

I agree.