Issue
Facts
Mele Vittil Kunhan Menon
v.
Mele Vittil Kannan Menon And Others
(High Court Of Judicature At Madras)
Appeal Against Order No. 153 Of 1922 | 29-08-1923
British Court to obtain partition of properties in British India. The Subordinate Judge of Palghat has appointed a Receiver to manage these properties pendente lite.
[2] When a member of a Mitakshara joint Hindu family sues for partition, his right to become divided is self evident and It may be taken for granted that, unless he makes default, he will get a decree, the form that the partition will take being alone left in issue. There is no such certainty about the present case. The theory that the plaintiff can take his newly acquired right to partition under the Cochin Regulation, carry it with him as his personal law into a foreign country and impress immoveable property lying in that country, where partition among Nairs is not the law of the land, with the character of portability is a novel one and will need to be established at the trial. Meanwhile the plaintiff has not a prima facie right to ask for a Receiver. Moreover the Judge has not found that there is any danger of waste. He says that " no harm will be done " by the appointment of a Receiver, and that if the plaintiff has first to prove his right to partition it will be " too late " to appoint a Receiver. This is not enough. There must be some substantial ground for interfering with existing rights of possession (vide Sivagnathammal v. Arunachalam Pillai 10 M.L.T. 490 ). We therefore set aside the lower Court s order with costs of this appeal.
Advocates List
For the Appearing Parties ----
For Petitioner
- Shekhar Naphade
- Mahesh Agrawal
- Tarun Dua
For Respondent
- S. Vani
- B. Sunita Rao
- Sushil Kumar Pathak
Bench List
HON'BLE MR. JUSTICE SPENCER
HON'BLE MR. JUSTICE DEVADOSS
Eq Citation
(1924) 46 MLJ 133
AIR 1924 MAD 482
1924 MWN 202
79 IND. CAS. 561
LQ/MadHC/1923/285
HeadNote
Civil Procedure Code, 1908 — Ss. 94, 95 and 96 — Receiver — Appointment of — Partition suit — Partition of properties in British India by Nair subjects of Cochin State — Appointment of Receiver to manage properties pendente lite — Propriety of — Held, when a member of a Mitakshara joint Hindu family sues for partition, his right to become divided is self evident and It may be taken for granted that, unless he makes default, he will get a decree, the form that the partition will take being alone left in issue — There is no such certainty about the present case — The theory that the plaintiff can take his newly acquired right to partition under the Cochin Regulation, carry it with him as his personal law into a foreign country and impress immoveable property lying in that country, where partition among Nairs is not the law of the land, with the character of portability is a novel one and will need to be established at the trial — Meanwhile the plaintiff has not a prima facie right to ask for a Receiver — Moreover the Judge has not found that there is any danger of waste — He says that " no harm will be done " by the appointment of a Receiver, and that if the plaintiff has first to prove his right to partition it will be " too late " to appoint a Receiver — This is not enough — There must be some substantial ground for interfering with existing rights of possession (vide Sivagnathammal v. Arunachalam Pillai 10 M.L.T. 490 ) — Appeal,
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