Vijayalekshmi vs Divya

Kerala High Court

Vijayalekshmi vs Divya on 21 May, 2024

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                          PRESENT

           THE HONOURABLE MR. JUSTICE G. GIRISH

  TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946

                     FAO NO.29 OF 2024

 AGAINST THE ORDER DATED 08.02.2024 IN OS NO.19 OF 2022 OF
ASSISTANT PRINCIPAL SUB COURT / COMMERCIAL COURT, THRISSUR

APPELLANTS/RESPONDENTS/DEFENDANTS:


    1    VIJAYALEKSHMI
         AGED 72 YEARS, W/O LATE KANNOLI VASUDEVAN,
         INCHAMUDI VILLAGE, CHIRAKKAL DESOM, P.O INCHAMUDI,
         THRISSUR TALUK., PIN - 680 561

    2    LEENA
         AGED 53 YEARS, D/O LATE KANNOLI VASUDEVAN,
         INCHAMUDI VILLAGE, CHIRAKKAL DESOM, P.O INCHAMUDI,
         THRISSUR TALUK, AND W/O K.K SREENIVASAN,
         KOTTARAPATTIL HOUSE, OTTAPALAM TALUK, PALAKKAD
         DISTRICT., PIN - 680 561

    3    MUKHIL
         AGED 52 YEARS, D/O LATE KANNOLI VASUDEVAN,
         INCHAMUDI VILLAGE, CHIRAKKAL DESOM, P.O INCHAMUDI,
         THRISSUR TALUK, AND WIFE OF PURAPPILLI SREEKUMAR,
         ALUVA DESOM., PIN - 680 561

         BY ADVS.
         K.S.HARIHARAPUTHRAN
         PINKU MARIAM JOSE
         K.M.FATHIMA

RESPONDENTS/PETITIONERS/PLAINTIFFS:


    1    DIVYA
         AGED 43 YEARS, W/O KANNOLI NISHAN, INCHAMUDI
         VILLAGE, CHIRAKKAL DESOM, P.O INCHAMUDI, THRISSUR
         TALUK, NOW RESIDING AT D/O LATE PARATHATTIL
         VISHWANADHAN, P.O KANJANI., PIN - 680 561

    2    DEVAN
         AGED 20 YEARS, S/O KANNOLI NISHAN, INCHAMUDI
         VILLAGE, CHIRAKKAL DESOM, P.O INCHAMUDI,
         THRISSUR TALUK, NOW RESIDING AT DIVYA, MOTHER.,
                                       2
FAO No.29 of 2024


             PIN - 680 561

             BY ADVS.
             SANTHEEP ANKARATH
             P.ANIRUDHAN(K/002306/2021)

      THIS    FIRST   APPEAL   FROM       ORDERS    HAVING    COME   UP   FOR
ADMISSION     ON    21.05.2024,   THE       COURT    ON      THE   SAME   DAY
DELIVERED THE FOLLOWING:
                                         3
FAO No.29 of 2024


                               G. GIRISH, J.
                      --------------------------------------
                              FAO No.29 of 2024
                 ------------------------------------------------
                    Dated this the 21st day of May, 2024

                                 JUDGMENT

The order dated 08.02.2024 of the Principal Sub Court, Thrissur in I.A.No.5 of 2022 appointing a Receiver under Order XL Rule 1 Code of Civil Procedure is under challenge in this appeal.

2. The appellants are defendants 1 to 3 in the suit in which the aforesaid order has been passed by the learned Sub Judge. The 1st respondent is none other than the daughter in law of the 1st appellant and the 2nd respondent is the son of the 1 st respondent. The husband of the 1st respondent, who was the son of the 1st appellant, passed away on 26.01.2012. The respondents instituted the suit claiming partition of 2/12 share of A Schedule property and 2/3 share of B Schedule property which include some shop rooms which are leased out.

3. Before the Trial Court, the respondents/plaintiffs herein who filed the Receiver application stressed upon the point that they are struggling hard to meet the expenses for their livelihood as well as the educational expenses, and hence it is highly necessary to have payment of their proportionate share of 4 FAO No.29 of 2024 the rental income being received by the appellants/defendants 1 to 3 herein from the shops rented out to strangers. The learned Sub Judge, after taking in to account of the rival contentions, arrived at the finding that the appointment of a Receiver was just and convenient. Accordingly, the impugned order dated 08.02.2024 was passed appointing an advocate as Receiver of Item Nos.12 to 17 of Plaint A Schedule property and Item No.4 of Plaint B Schedule property.

4. Heard the learned counsel for the appellants/ defendants 1 to 3 for some time.

5. During the course of arguments, to a query put by the Court about the dire necessity of the respondents/plaintiffs to have at least the minimum amount required for meeting their educational expenses and livelihood from their share of the property sought to be partitioned, the learned counsel for the appellants/defendants 1 to 3 submitted that the appellants/ defendants 1 to 3 are ready to make payment of a reasonable amount during the pendency of the suit to the respondents/plaintiffs. After discussions with the learned counsel for the respondents/plaintiffs, it was suggested that an amount of Rs.1 lakh per month could be fixed as the amount to be paid to the respondents/plaintiffs during the pendency of the suit as 5 FAO No.29 of 2024 an interim arrangement towards the share of mesne profits to which the respondents/plaintiffs are entitled.

6. The learned counsel for the appellants/defendants 1 to 3, after contacting the parties over cell phone, submitted that the appellants/defendants 1 to 3 are ready to make payments as suggested above during the course of hearing in this Receiver application. The learned counsel for the respondents/plaintiffs submitted that the Receiver appointed by the Trial Court could be discharged taking into account of the above arrangement towards payment of Rs.1 lakh per month to the respondents/plaintiffs by the appellants/defendants 1 to 3 as part of the mesne profits to which the respondents/plaintiffs are entitled.

7. Having regard to the above submissions of the learned counsel representing both sides, and also the facts and circumstances of the case, I deem it appropriate to dispose of this appeal with the following directions: -

i) The order dated 08.02.2024 of the Principal Sub Court, Thrissur in I.A.No.5 of 2022 in O.S.No.19 of 2022 will stand set aside subject to fulfilment of the undertaking of the appellants/defendants 1 to 3 to make payment of Rs.1 lakh per month to the 6 FAO No.29 of 2024 respondents/plaintiffs w.e.f. 08.02.2024 onwards, till the disposal of the suit, as their pendente lite share of mesne profits, of which the actual quantum to which the plaintiffs are entitled, will be decided in the suit.

ii) The amount of Rs.1 lakh per month due to the respondents/plaintiffs from 08.02.2024 to

08.05.2024 has to be paid out of the amount deposited by the Receiver before the Trial Court, upon application by the respondents/plaintiffs. The balance amount, if any, in deposit, after deducting Receiver's remuneration, could be released to the appellants/defendants 1 to 3 upon filing an application before the Trial Court in that regard.

iii) The appellants/defendants 1 to 3 shall make payment of the future amount of Rs.1 lakh per month from 08.06.2024 onwards directly to the respondents/plaintiffs, on or before the 8th of every calendar month.

v) The interim arrangement of payment of mesne profits as directed above shall remain in force during the pendency of the suit, and the necessary 7 FAO No.29 of 2024 adjustments will be made later on subject to the final decision in the partition suit.

v) In case of any default in making payment as directed in this order, the respondents/plaintiffs will be entitled to approach the Trial Court and seek the revival of order of appointment of Receiver. The reason for non-payment of the amount, in such a contingency, has to be looked into by the Trial Court before passing revival orders of appointment of Receiver, and every effort shall be made to keep alive and preserve the terms of agreement between the parties upon which this judgment has been rendered.

Sd/-

G. GIRISH, JUDGE ded