Authored By : S.C. Ghose, Robert Fulton Rampini

S.C. Ghose and Robert Fulton Rampini, JJ.

1. This is an appeal against an order for the appointment ofa receiver pending the result of a suit.

2. The suit was instituted by Rajah Padmanand Singh andothers, sons of the late Bajah Lilanand Singh Bahadur, for recovery ofpossession of various properties, moveable and immovable, which the defendantis in possession of, and which he claims by right of heirship to his son,Anantanand Jha, deceased. The plaintiffs claim is founded mainly upon analleged custom, both in the family of the plaintiffs and among Maithil and SutiBrahmins generally, that custom being that, when a provision is made for thesupport and adornment of a female member of the family, by grant of properties,she holds such properties for her life; that they devolve upon her death uponher lineal descendants; but that, on failure of lineal descendants, theproperties revert to the family of the grantor. And it is stated that thiscustom obtains also in the case of a girl belonging to a family of the Maithilclass of Brahmins being married into the Suti class, which is higher in rankthan the Maithil class; and that in case of such marriage, the husband becomesdegraded to the Bikawa class, and does not inherit the properties given to thegirl by the family of her father.

3. It would appear from the plaint that the late RajahLilanand Singh gave various properties to his wife Rani Chandeswari, thestep-mother of the plaintiffs; that these properties devolved upon her deathupon her daughter, Kamikhya Dai; that from the profit of those propertiesKamikhya acquired other properties, and that she obtained certain otherproperties by grant from the plaintiffs family; and that all these properties,upon her death, went to her son Anantanand Jha; and upon his death, whichoccurred recently (April 1893), they came into the possession of the defendant.

4. The plaintiffs in their plaint base their claim mainlyupon the custom which has already been referred to, and also upon an allegedadoption in the kritima form of Bajah Padmanand Singh by Rani Chandeswari; butthis latter ground does not seem to have been much relied upon in the matter ofthe application for the appointment of a receiver.

5. The defendant denied the custom alleged by the plaintiffand the right asserted by him.

6. The application that was made by the plaintiffs in theCourt below was for the appointment of a receiver under Section 503* of theCode of Civil Procedure, as also for an order of injunction under Section 492,and in support of such application certain affidavits were put in on behalf ofthe plaintiffs, and there were counter-affidavits on the part of the defendantdenying most of the statements made in the affidavits produced by theplaintiffs.

7. The Subordinate Judge was of opinion that no sufficientcase for the appointment of a receiver in respect of the Immovable propertieswas made out, but that such a case was established in regard to the moveableproperties (with the exception of certain properties mentioned in his order), andhe made an order accordingly.

8. In dealing with the question raised before him, theSubordinate Judge seems to have been of opinion that the plaintiffs wereentitled to have a receiver appointed, if it appears that the plaintiffs had afair question to raise, and if there was strong ground of apprehension that theproperty in dispute would be lost or wasted if not placed in the hands of areceiver. And in this view of the matter, he thought that the affidavits onbehalf of the plaintiff justified the appointment of a receiver.

9. It seems to us that in thus dealing with the matter, theSubordinate Judge has fallen into an error. He would, no doubt, have been rightif he had made an order for an injunction (see Kerr on Injunctions, pp. 11-12).

10. In the case of Sidhesivari Dabi v. Abhoyeswari DabiI.L.R. Cal. 818 the law on the subject of the appointment of a receiver wasthus laid down by a Divisional Bench of this Court: "Both the DeputyCommissioner and the Judge seem to think that it is sufficient to justify theappointment of a receiver if the allegations of the plaintiff show a sufficientcause of action, and if the management of the estate has been and is such as torender the appointment expedient. Section 503 of the Civil Procedure Codecertainly gives a wide discretion to the Court. It empowers the Court toappoint a receiver whenever it appears to be necessary for the realization,preservation, or better custody or management of any property the subject of asuit. This power is not, however, greater than that exercised by the Courts inEngland; and it must, we think, be exercised on the same principle, that is tosay, with a sound discretion, on a view of the whole circumstances of the case,not merely circumstances which might make the appointment expedient for theprotection of the property, but all the circumstances connected with the rightwhich is asserted and has to be established. If a right was asserted toproperty in the possession of the defendant claiming to hold under a legaltitle, the Courts did not interfere by appointing a receiver unless a verystrong case was made out. The principles to which we refer are stated in Kerron Receivers, 2nd Edn., p. 3, by Lord Cranworth in Owenv. Homan 4 H.L.C. 997and in Clayton v. The Attorney-General (Coopers cases in Chancery, Vol. I, P.97). We see no ground for the contention that these principles were notapplicable in this country. They are adopted to prevent a wrong to thedefendant which might equally be done here if they were not followed. It wasindeed conceded that the plaintiff must at least show that her claim is honestand well founded, and if she must show that much, it is a mere question ofdegree as to how far she must make out her case." This view seems to befully borne out by the authorities quoted; and we may say that we entirelyconcur in it.

11. The Subordinate Judge does not appear to have kept inview the distinction which exists between the case of an injunction and that ofa receiver. That distinction seems to be that, while in either case it must beshown that the property should be preserved from waste or alienation; in theformer case, it would be sufficient if it be shown that the plaintiff in thesuit has a fair question to raise as to the existence of the right alleged;while in the latter case, a good prime facie title has to be made out (see Kerron Receivers, pp. 3-4; Kerr on Injunctions, pp. 10-11).

12. Addressing ourselves then to the merits of theapplication, we observe that the plaintiff, Rajah Padmanand Singh, who is bestable to depose to the existence of the alleged custom and the adoption set upby him, has not given his own oath; and the affidavits that have been producedare not of a satisfactory character.

13. The defendant claims to hold the property on a legaltitle; and if the property did belong to his son, Anantanand Jha, he would beentitled to it, unless the custom alleged by the plaintiff is clearlyestablished. We are not called upon, nor do we think we should be justified, toexpress any opinion upon this question; but confining ourselves to thematerials now before us, we are not prepared to say that the plaintiff has madeout a good prime facie case such as to justify the Court in ordering that theproperties should be taken away from the possession of the defendant and placedin the hands of a receiver.

14. But, then arises the question whether, in thecircumstances which have transpired at the trial of the question before theSubordinate Judge, the moveable properties, which are mostly jewels and goldand silver articles, should not be preserved and prevented from waste, asprovided by Section 492 of the Code.

15. It appears from the affidavits and other documents whichwere placed before the Subordinate Judge that some portion of the valuablejewellery and gold mohurs were removed from the defendants house at Sultanganjand found buried in an out-house, and that some of the gold ornaments weretaken away by the defendant and placed in the custody of a banker, Kunj Behary,at Bhagalpore. The defendant alleges that the first-mentioned act was an act ofone of his servants in conspiracy with the plaintiffs, and that the deposit ofthe jewels with Kunj Behary was in accordance with an old practice. This may ormay not be so; but these circumstances are suspicious, and lend support to theallegation of the plaintiffs that there is danger of the moveable propertiesbeing wasted or alienated, and the Subordinate Judge has so found.

16. We think that, in the circumstances of this case, weought to make an order under Section 492 for the purpose of preserving themoveable properties from being wasted and alienated.

17. We understand that the whole of these properties is nowin the custody of the Collector. If so, there will be no difficulty in making afull and correct inventory of these properties. Such inventory should be madeby a responsible officer of the Court in the presence of both the parties, ortheir authorized agent; and the respective prices of the properties should beascertained and entered in the inventory. After such inventory has been made,the properties will be made over to the defendant, but he will be restrained byan injunction from wasting, alienating, or otherwise dealing with them untilthe result of the suit now pending in the lower Court. Among the moveableproperties, there is a mortgage-bond, dated the 19th March 1885, executed byRajah Lilanand Singh in favour of Kamikhya Dai, and certain GovernmentPromissory notes. With regard to these properties, we direct that while thedefendant will be prohibited from alienating or otherwise dealing with them, hemay be permitted to sue upon the mortgage-bond and take steps to realize theamount covered thereby, but the money when realized will be kept in Court untilthe disposal of the suit. And as regards the Promissory notes, he may draw theinterest as it falls due from time to time.

18. The order of the Court below, appointing a receiver totake charge of the movable properties, will be set aside, and, in lieu thereof,there will be an order under Section 492 in the terms already expressed. Bachparty will bear his own costs in both the Courts.

* Power of Court to appoint Receivers.

[Section 503: Whenever it appears to the Court to benecessary for the realization, preservation or better custody or management ofany property, moveable or immovable, the subject of a suit, or underattachment, the Court may by order-

(a) appoint a Receiver of such property, and, if need be,

(b) remove the person in whose possession or custody theproperty may be from the possession or custody thereof;

(c) commit the same to the custody or management of suchReceiver; and

(d) grant to such Receiver such fee or commission on therents and profits of the property by way of remuneration, and all such powersas to bringing and defending suits, and for the realization, management,protection, preservation and improvement of the property, the collection of therents and profits thereof, the application and disposal of such rents andprofits, and the execution of instruments in writing, as the owner himself has,or such of those powers as the Court thinks fit.

Receivers liabilities.

Every Receiver so appointed shall:

(e) give such security (if any) as the Court thinks fit dulyto account for what he shall receive in respect of the property;

(f) pass his accounts at such periods and in such form asthe Court directs;

(g) pay the balance due from him thereon as the Courtdirects; and

(h) be responsible for any loss occasioned to the propertyby his wilful default or gross negligence.

Nothing in this section authorizes the Court to remove fromthe possession or custody of property under attachment any person whom theparties to the suit, or some or one of them, have or has not a present right soto remove.]

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Padmanand Singh Bahadur and Ors. vs. Chandidat Jha (24.01.1895 - CALHC)