Authored By : Robert Fulton Rampini, J. Pratt

Robert Fulton Rampini and J. Pratt, JJ.

1. This is an appeal against an order of the SubordinateJudge of Monghyr, dated the 14th April 1899, directing the appointment of aReceiver for the custody and preservation of certain property the subject of asuit now pending in his Court.

2. The suit relates to the mohuntship of the Asthal of Sujaalias Ramnugger, which became vacant by the death of the former mohunt,Jugarnath Das, who expired on the 8th of September last. Of the two claimants,one is Mohabir Das, the plaintiff, who alleges that he was appointed chela ofthe deceased mohunt on the 20th January 1898, and was installed as mohunt onthe 2nd of September, about six days before the death of the old mohunt.

3. The defendant is Sia Ram Das; and on his behalf it isalleged that he was made chela on the 16th May 1897, and that he was appointedmohunt on the 12th day after the death of Jugarnath Dass by a punchayetconsisting of certain neighbouring mohunts and zamindars. The defendant is nowin possession of the property; and an application for the appointment of aReceiver has been made at the instance of the plaintiff.

4. In connection with this case several rulings have beencited by the learned Counsel on either side.

5. On behalf of the defendant our attention has been calledto the case of Sidheswari Dabi v. Abhoyeswari Dabi I.L.R (1888) 15 Cal. 818, inwhich it was held that the Court is not justified in appointing a Receiverwhere a right is asserted to property in the possession of the defendantclaiming to hold it under a legal title, unless a strong case is made out. Thiscase was decided by Macpherson and Gordon, JJ., on the 4th June 1888; and ithas been followed in the case of Chandidat Jha v. Padmanand Singh I.L.R (1895)22 Gal 459, in which it has been ruled that the Court will not interfere byappointing a Receiver unless a strong case is made out, and in which it ispointed out that, when an application is made for an injunction, it issufficient to show that the plaintiff in the suit has a fair question to raiseas to the existence of the right alleged, while in the case of a Receiver aprima facie title has to be made out.

6. These cases have been cited on behalf of the appellant,while on behalf of the respondent the decision of Macpherson, J., sitting onthe Original Side of this Court, in Sham Chand Giri v. Bhairam Pandey (suit No.179 of 1893, dated 5th March 1894) has been relied on. This decision is printedat page 139 of this paper book; and it will be seen that in it the learnedJudge seems to be of opinion that it is not necessary that a strong case shouldbe made out to justify the appointment of a Receiver, but that it is sufficientif a. fair prima facie case is established. Mr. Justice Macpherson furthersays: "The mere circumstance that such a large amount of property wasremoved, and under circumstances which might fairly give rise to suspicion,during the pendency of a suit in which the question of title to that propertywould be determined, is in itself a sufficient ground for the appointment of aReceiver." Mr. Justice Macpherson, therefore, seems in this decision tohave taken a less strong view of what is necessary to justify the appointmentof a Receiver than in his previous judgment in the case of Sidheswari Dabi v.Abhoyeswari Dabi. However that may be, we have heard Counsel on both sides, andwe have had read to us a very large quantity of affidavits put in by theparties; and we think, after consideration of all these affidavits and of thecircumstances of the case, that a sufficiently strong case--we may say a verystrong case--has been made out by the plaintiff to justify the appointment of aReceiver in this case. Although we are far from wishing to prejudge the case inany way, we certainly think a fair prima facie case has been shown to exist onthe side of the plaintiff. But, as we have said, we do not wish to prejudge thecase; and we must here point out that no evidence on oath has been given. Thereare nothing but affidavits to go upon; and therefore the view we take on theseaffidavits may entirely be set aside when the witnesses are cross-examined,--ascross-examined they will be,--before the Subordinate Judge at the trial.

7. Now there is a considerable number of affidavits adducedby the plaintiff--affidavits of most respectable witnesses--to show that he wasinstalled as mohunt upon the 2nd of September last. These are the affidavits ofDr. Rogers, Jotindra Nath Banerjee, Jogendra Nath Banerjee, and others; and ifthe affidavits of these gentlemen are entitled to implicit belief, there islittle doubt that the plaintiff was so appointed on that day. There is also thefact in favour of the plaintiff, namely, that he was the nephew of the lastmohunt, and that, all the three preceding mohunts,--Kesho Das, Nursingh Das andJugarnath Das--belonged to the same natural family. Jugarnath Das was thenephew of Nursingh Das and was appointed chela by his uncle when he was achild. In these circumstances, it appears to us certainly not ijara probablethat Jugarnath Das on his death-bed did select the plaintiff to be hissuccessor.

8. On the other hand, there are affidavits in support of theallegation that the defendant, Sia Ram Das, was made a chela by the deceasedJugarnath Das on cue 16th of May 1897, although this fact is denied by theplaintiff. But it is admitted that he was installed as mohunt by the punchayeton the 12th day after the death of Jugarnath Das. Notwithstanding these twofacts, if the former be proved at the trial, it is clear that if the plaintiffsucceeds in the course of the suit now pending before the Subordinate Judge inestablishing that he was duly installed as mohunt by Jugarnath Das on the 2ndof September, still his claim must prevail over that of Sia Ram Das, that is tosay, provided it be proved that the mohunt has power to nominate his successor,as it is contended in this case that he has.

9. Mr. Woodroffe, who appeared on behalf of the appellant,Sia Ram Das, urges that it would be very wrong to appoint a Receiver, seeingthat this would have the effect of turning his client out of possession of theproperty which he now holds; and that it would be injurious to him, inasmuch asit would not only deprive him of the management of the property, but wouldrender it difficult for him to procure funds for the prosecution of his defencein the case. We observe, however, that Sia Earn has not been long in possessionof the property. He has only recently taken possession. He certainly was not inpossession of the property appertaining to the mohuntship before the death ofJugarnath Das, which took place in September 1898; and he obtained possessionwith the assistance of the police. Therefore, it does not appear to us that hecan be said to be in peaceful possession of the property. By the term peacefulpossession, we mean possession with the acquiescence of the plaintiff.

10. Then there is very great reason to believe that since hehas taken possession of the property he has committed gross waste with regardto it. It appears that this defendant appeared before the Sub-DivisionalOfficer of Beguserai on the 9th September 1898, and acknowledged receipt of theproperty of the mohunt, saying that it was "all safe." Nevertheless,when the Commissioner sent by the Subordinate Judge to make an inventory of theproperty arrived at the Asthal, in the first place, every obstruction that waspossible was put in the way of his doing his duty by this very defendant andhis employees; and in the second place, according to the Export of theCommissioner, printed at page 172 of the paper book, it appears that a verylarge quantity of valuable property has disappeared from the time that thisappellant took possession of the property. This property consists of moneys,bonds, promissory notes and other securities, gold and silver ornaments andutensils. And the Commissioner distinctly found that the defendant appeared tohave removed or secreted moneys, securities, bonds, promissory notes and alarge quantity of silver and gold ornaments and utensils.

11. In these circumstances, it appears to us that this casecomes exactly within the ruling of Mr. Justice Macpherson in the case on theOriginal Side, in which he lays down that "the mere circumstance that sucha large amount of property was removed, and under circumstances which mightfairly give rise to suspicion during the pendency of the suit in which thequestion of title to that property would be determined, is in itself asufficient ground for the appointment of a Receiver."

12. As for the contention of Mr. Woodroffe that thedefendant will now be deprived of funds to carry on his defence in this case,we have only to say that the plaintiff is exactly in the same position. Butthere is too much reason to believe that, owing to the acts of waste which thedefendant appears to have committed, he will not be entirely without funds tocarry on his case.

13. Taking the whole of the circumstances of the case intoour consideration, we think that this is a case in which a Receiver should beappointed. The property at stake in this case is very large. The Immovableproperty is estimated to be worth 3 or 4 lakhs of rupees; and the moveableproperty is said to be worth more than a lakh. The income from the Immovableproperty is, moreover, said to amount to thirty or forty thousand rupees perannum.

14. The claimants of the property are mendicants, andapparently possessed, of no worldly property whatsoever, and we think thatuntil the rights of the claimants of this property are decided, it is properthat a Receiver should be appointed.

15. We therefore affirm the order of the Subordinate Judgeand dismiss this appeal with costs.

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Mohabir Das vs. SiaRam Das (02.08.1899 - CALHC)