HONOURABLE SRI JUSTICE M.S.RAMACHANDRA RAO
AND
HONOURABLE SRI JUSTICE T.VINOD KUMAR
CIVIL MISCELLANEOUS APPEAL NO.37 OF 2021
J U D G M E N T:
(Per Sri Justice M.S.Ramachandra Rao) This Appeal is preferred challenging the order dt.29.12.2020 in I.A.No.1 of 2016 in O.S.No.211 of 2014 of VII Additional District Judge, Warangal.
2. The appellant is the 1st defendant in the said suit.
3. The said suit was filed by the mother of the appellant by name V.Rathnam against the appellant and others seeking partition of A and B schedule properties and allotment of one such share to her with separate possession; to direct the appellant to render accounts with regard to rent arrears collected from respondents 2 to 6/defendants 2 to 6 from 01.12.2011 up to 30.11.2014, and for a direction to respondents 2 to 6 to deposit future rents from 01.12.2014 into Court.
4. The 1st respondent inherited a two storied building with ground and first floors being Municipal No.12-1-70 and having on its rear side a two roomed Bangalore tiled house and six shops in ground floor, two big halls in the first floor situated in S.V.N.Road, Warangal and also certain gold and silver articles.
5. It is the contention of the 1st respondent in the suit that she is the only natural daughter of late Cheruku Kanthaiah and Smt. Cheruku Venkata Laxmi; that her father died on 27.08.1992; that her father was a Senior Advocate in Warangal Bar and also former Municipal Chairman MSR,J & TVK,J ::2:: cma_37_2021 of Warangal Municipal Corporation; that her mother died on 04.03.2007; that the appellant is her fourth natural son; that her natural parents fostered him and brought him up as their adopted son with the help and assistance of the 1st respondent. She alleged that respondents 2 to 6 are their tenants.
6. The 1st respondent alleged that the appellant since 1991 was treated as the foster son of her late father, but there was no adoption deed. The 1st respondent alleged that the suit schedule property is the property of her father; that it is their ancestral property; that she and her husband have separated for more than two decades; that the 1st respondent had constructed the commercial complex which is subject matter of the suit and also constructed the first floor in 2005-06 and let it out to the 6th respondent.
7. She alleged that since 2001 the appellant used to collect the rents and failed to pay half share in the rental amounts to the 1st respondent taking advantage of her advanced age and ill-health.
8. The 1st respondent contended that the appellant was a practicing Advocate at Warangal and he completely ignored the rights of the 1st respondent and drove her out from the suit schedule property ignoring the relationship of the natural mother and son. She alleged that the appellant used to quarrel with her and he had also beat her black and blue mercilessly, that she is very thin, aged 78 years and cannot resist the onslaughts of the appellant.
9. She alleged that the appellant developed negative attitude towards her at the instance of his natural father who is the 1st respondent's MSR,J & TVK,J ::3:: cma_37_2021 husband and his third elder brother and his eldest sister and bore grudge against the 1st respondent and they formed a group to create troubles to her.
10. She also alleged that the District Legal Services Authority, Warangal passed an order on 30.06.2001, after mutual discussion between her and the appellant, to divide the suit schedule property into three equal shares.
11. She denied that there was any adoption of the appellant by her natural father. She alleged that she was necked out of her own property by the appellant on 21.08.2010 and that she is currently living with her second daughter.
12. She alleged that the appellant had failed to pay her share of rents and also instructed the tenants not to pay rents to her.
13. She also alleged that the appellant took away forcibly all gold and silver ornaments from her locker taking advantage of her old age. She alleged that the appellant, under influence of his natural father and his elder sister, is harassing her and avoiding partition of the suit schedule properties.
The stand of the appellant in the written statement
14. Written statement was filed by the appellant denying these allegations.
15. He alleged that the 1st respondent was neither a coparcener nor a joint owner along with him in respect of any property including the suit schedule property.
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16. He contended that the marriage of the 1st respondent took place in 1955 even prior to the enactment of the Hindu Succession (Amendment) Act, 2005 which came into force with effect from 09.09.2005 and since she was a Hindu female daughter of late Cheruku Kanthaiah and Cheruku Venkata Laxmi, she cannot be treated as a coparcener and she is not entitled to seek partition of the suit schedule property.
17. According to the appellant, the suit schedule property was purchased by late Cheruku Thirumal in 1324 Fasli and the said person was his great grandfather. According to appellant, it was acquired and possessed by his ancestors prior to Hindu Succession Act, 1956 and he is the adopted son of late Cheruku Kanthaiah and Cheruku Venkata Laxmi.
18. According to him, Cheruku Venkata Laxmi was having undivided half share in the suit schedule property had notional partition taken place. According to him, after demise of his adoptive parents and as per the Will dt.28.05.2005 allegedly executed by Chruku Venkata Laxmi during her life time, he became the absolute owner of the suit schedule property.
19. According to him, since Cheruku Kanthaiah died on 27.08.1992, succession had opened much prior to the enactment of the Hindu Succession (Amendment) Act, 2005 which came into force with effect from 09.09.2005 and so the 1st respondent was not entitled to claim any share in the property. He denied the other allegations made by the 1st respondent.
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20. According to him, the 1st respondent could not have constructed the commercial complex as she had no money and even the maintenance case filed by her against her husband was dismissed on merits.
21. He alleged that he alone constructed the commercial complex and let it out to respondents 2 to 6 and he alone is entitled to collect rents as owner of the property. He denied that he is a foster son of late Chruku Kanthaiah and Cheruku Venkata Laxmi.
22. He alleged that the 1st respondent was acting according to the dictates of her daughter Kumari Andalu, a practicing Advocate and junior of K.Krishna Prasad who is Advocate for the 1st respondent.
23. According to him, there was no adjudication of disputes between the parties by the District Legal Services Authority, Warangal in C.L.S.A.No.135 of 2001. He denied that he had evicted the 1st respondent from the suit schedule property.
24. He alleged that the 1st respondent herself removed gold, silver and cash without his knowledge and consent. He therefore prayed for dismissal of the suit.
25. He thereafter filed an additional written statement also in respect of certain third party affidavits filed by the 1st respondent in I.A.No.921 of 2014.
I.A.No.1 of 2016
26. The 1st respondent had filed I.A.No.1 of 2016 under Order XL Rule 1 CPC requesting the trial Court to appoint a Receiver to take care of the suit schedule property, preserve, protect and to collect rents and MSR,J & TVK,J ::6:: cma_37_2021 for payment of taxes in order to safeguard her alleged rights and to deposit the entire rent of Rs.62,000/- or more into the Court below till the disposal of the suit. She reiterated the averments in the plaint.
27. Counter affidavit was filed in the said Application by the appellant reiterating the contents in the written statement filed by him. The trial court's order in IA 1 of 2016
28. By order dt.28.12.2020, the Court below allowed I.A.No.1 of 2016.
29. After referring to the respective contentions of the parties, the Court below noted that the suit schedule immovable property was inherited by the deceased Cheruku Kanthaiah; that the 1st respondent was his only daughter; and in view of the recent decision of the Supreme Court in Vineetha Sharma Vs. Rakesh Sharma and others1 interpreting the amendment made to Section 6 of the Hindu Succession Act, 2005, it held that it was not necessary that the father of the 1st respondent, Cheruku Kanthaiah, should have been alive on 09.09.2005; that right in coparcenary property arises by birth and the 1st respondent is a coparcener and there is prima facie case in her favour.
30. It also held that the 1st respondent is a senior citizen aged about 82 years who is none other than the natural mother of the appellant and that the appellant did not deny that he was getting rents of Rs.62,000/- every month from the suit schedule property.
1 C.A.No.Diary No.32601 of 2018 decided on 11.08.2020 = (2020) 9 SCC 1 MSR,J & TVK,J ::7:: cma_37_2021
31. It also took note of the fact that the 1st respondent was residing separately from the appellant and the appellant alone was managing the immovable property which is subject matter of the suit and receiving rentals of Rs.62,000/- from the tenants.
32. It then observed that since the appellant was not furnishing accounts to the 1st respondent with regard to the rentals, in future if the Court comes to a conclusion that the 1st respondent is having share in the property, it would be difficult for the 1st respondent to get her share from the appellant. It also noted that the appellant did not furnish accounts before the Court below to prove his bonafides. It also observed that the appellant did not pay any maintenance to the 1st respondent though she is his natural mother and failed to look after her welfare.
33. It relied on a Judgment of this Court in Chundru Srinivas Rao Vs. Chundru Venkata Rao2 and held that if possession of the entire property is in the hands of the appellant and he is screening the income that would be derived therefrom, it would be fit case to appoint a Receiver to ensure protection of interests of the parties.
34. It therefore appointed an Advocate as Receiver to take possession of the immovable property which is subject matter of the suit, to collect rents from the tenants in the said property and deposit the same to the credit of the suit along with detailed statement. It also gave the Advocate Receiver liberty to take appropriate legal steps against respondents 2 to 6 if they failed to pay the rents agreed.
2
1992(2) APLJ 212
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The present CMA
35. Assailing the same, this CMA is filed.
36. Heard Sri Kiran Palakurthi, learned counsel for the appellant.
37. Learned counsel for the appellant contended that the suit being one for partition and since there is no allegation of wastage of property, Order XL Rule 1 CPC could not have been invoked. According to him, in a suit for partition, only in exceptional cases to protect the interests of parties, a Receiver can be appointed, but the instant case is not one such case.
The consideration by the Court
38. We have noted the contentions of the parties.
39. Admittedly, the appellant is the natural son of the 1st respondent. The 1st respondent and her husband are admittedly separated from each other and there are other children of the 1st respondent as well. The 1st respondent is admittedly a senior citizen aged about 82 years.
40. According to the 1st respondent, the appellant is only a foster son of the 1st respondent's natural parents, but the appellant alleges that he is the adopted son of the parents of the 1st respondent.
41. Whether the appellant is the adopted son of the parents of the 1st respondent or is only their foster son is a matter to be decided in the trial.
42. Though the appellant contended that natural father of the 1st respondent was not alive as on the date of coming into force of Hindu MSR,J & TVK,J ::9:: cma_37_2021 Succession (Amendment) Act, 2005, admittedly the Supreme Court in Vineetha Sharma Vs. Rakesh Sharma (1 supra) had held that it was not necessary that the natural father of a daughter should be alive as on the date of coming into force of the said amendment, i.e., on 09.09.2005 [para 129(iii)] for the daughter to be treated as a coparcener and entitled to have right in the property. Learned counsel for the appellant is unable to show why the said judgment does not apply to the instant case.
43. Therefore, we are satisfied that the 1st respondent is a coparcener and is entitled to a share in the suit schedule properties.
44. Whether the appellant is an adopted son or not is something which the appellant needs to prove by cogent evidence in the suit for him to claim either the entire suit schedule properties or income therefrom exclusively.
45. Admittedly, the appellant is collecting rents out of the suit schedule immovable property and appropriating them himself.
46. The 1st respondent has alleged that the rental income from the suit schedule immovable property is Rs.62,000/- per month which has not been denied by the appellant in his counter. Whether the appellant had exclusively constructed the suit schedule property out of his own income or not is a matter to be again decided during trial.
47. As held in Chundru Srinivas Rao Vs. Chundru Venkata Rao (2 supra) by this Court, if major portion of landed property is in possession of only one individual, then if the suit is likely to be prolonged, the losers are persons who are not in possession of the MSR,J & TVK,J ::10:: cma_37_2021 property at all and they would be deprived of income therefrom. Therefore, there is nothing wrong in the appointment of a Receiver in such situations and there is no absolute bar to appoint an Advocate Receiver for the purpose of collection of rents and for depositing them into Court.
48. No doubt as contended by the learned counsel for the appellant, a receiver ought not to be appointed to dispossess a person in physically possession.
49. In the instant case, though the Court below had used the words "Advocate Receiver should take possession of the property", it is clear that it only intended symbolic possession to be taken, and not physical possession because the Court below has directed the Advocate Receiver to collect rents from respondents 2 to 6 and deposit them into Court.
50. Moreover, to test the bonafides of the appellant, this Court had asked the appellant to file copies of income tax returns. In all these computation statements, annual letable value is indicated, but the rent receivable is shown as zero.
51. In the decision in S.Saleema Bi Vs. S.Pyari Begum3 cited by the learned counsel for the appellant, there is no discussion of facts and the order passed by the High Court was set aside observing that the High Court did not go into the question whether it was just and convenient to appoint a Receiver and there was prima facie case in favour of the plaintiff. Therefore, the said decision does not assist the appellant.
3
(2000) 9 SCC 560
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52. In Bhupathiraju Venkata Ramaraju Vs. Bhupathiraju Ramakrishnamraju4 relied upon by the appellant, the High Court, on the basis of a denial in the written statement observed that existence of prima facie case in favour of the plaintiff cannot be inferred at interlocutory stage so long as the question is not conclusively determined at the trial. The proposition quoted in the said judgment does not appear to us to be correct.
53. The decision in Anupama Homes India Pvt. Ltd. Vs. P. Shouri Raja5 relates to appointment of an Advocate Receiver to take possession of the properties of a limited company, which is not the situation in the instant case. Moreover, the suit in that case was not a partition suit at all.
54. In Chelikam Rajamma Vs. Padileti Venkataswami Reddy6, a Division Bench of this Court observed in para 11 that:
"(11) From an analysis of Order 40, Rule 1 of the Code of Civil Procedure in the light of the case law in relation to partition suits, the following propositions may be deduced: (1) The appointment of receiver cannot be resorted to lightly without considering the entire facts and circumstances. (2) The party seeking the appointment of receiver must make out a case that he or she was not only kept out of possession of the properties unauthorisedly, but the party in possession is indulging in acts of waste leading to the inference of incompetence. (3) If, prima facie, the plaintiff has excellent chance of succeeding in the suit, there being no denial with regard to his or her share in the plaint schedule properties, the conduct of the opposite party in keeping the plaintiff out of possession will be relevant consideration for directing the opposite party to deposit a sum of money approximately representing the value of the yield pertaining to the share of the plaintiff pending disposal of the suit. Even in such circumstances, a receiver should not be 4 1996 (3) ALT 702 5 2007 (6) ALT 122 6 1993 (2) ALT 154 MSR,J & TVK,J ::12:: cma_37_2021 appointed to oust the possession of the opposite party from the joint family properties. The protection of the properties and safeguarding of the rights of the parties shall be the twin objectives impelling the appointment of receiver."
In this judgment, even the decision in Chundru Srinivas Rao Vs. Chundru Venkata Rao (2 supra) was noticed though it is stated that the proposition of law was too widely stated in the said case.
55. According to us, in a partition action, normally appointment of Receiver cannot be resorted lightly without considering the entire facts and circumstances of the case. The party seeking appointment of a Receiver should make out a case that such party was not only kept out of possession of the property unauthorisedly, but the party in possession had been indulging in acts of waste or other akin or like reasons. If prima facie the plaintiff has excellent chance of succeeding in the suit and there is no specific denial relating to him or her share, the conduct of the opposite party in keeping the appellant out of possession would be relevant consideration.
56. Admittedly, the 1st respondent is already aged about 80 years. The suit is of the year 2014 and it appears that issues were framed only on 18.03.2020 and the next hearing date was on 06.04.2020, and in view of the Covid-19 pandemic, it would obviously have been adjourned without the trial having commenced.
57. Having regard to the relationship of mother and son between the 1st respondent and the appellant, and since the appellant's case about adoption is yet to be proved in the Court below, and since the 1st respondent is having prima facie case in regard to her share in the suit MSR,J & TVK,J ::13:: cma_37_2021 schedule property (being only natural daughter of Cheruku Kanthaiah and his wife), and since in the instant case the Court below has merely appointed a Receiver to collect rents from tenants and deposit them into Court to safeguard the interests of both parties, we do not wish to interfere with the order passed by the Court below in the facts and circumstances of the case.
58. Therefore, the Appeal fails and is dismissed.
59. In view of the fact that the plaintiff in O.S.No.211 of 2014 is a Senior Citizen and the suit is an old suit, the Court below is directed to dispose of the said suit as expeditiously as possibly preferably within one year from today. No costs.
60. Pending miscellaneous petitions, if any, in this CMA shall also stand dismissed.
____________________________ M.S.RAMACHANDRA RAO, J ____________________ T.VINOD KUMAR, J Date: 16-03-2021 Svv